Category: Law

  • Why special court cannot end banditry, kidnapping

    Why special court cannot end banditry, kidnapping

    The suggestion by former President Olusegun Obasanjo and Sheikh Abubakar Gumi that s special court be created for banditry and kidnapping has continue to generate reactions from stakeholders.  In this piece, Chief Louis Alozie (SAN) writes that creation of special court can never be a panacea for such heinous crimes.

     

    The issue of insecurity in Nigeria, be it in the form of kidnappings, abductions, demanding for ransom etc constitute a challenge to the existence of Nigeria as one country. It has also contributed immensely to destruction of Nigerian economy.

    Before the coming to office of President Umaru Musa Yar’Adua’s administration, what we had was militancy in the Niger Delta region of Nigeria which many saw as legitimate agitation by deprived and marginalised sections of the country.

    The Yar’Adua/Jonathan administration were able to contain that insurrection or uprising which resulted in the restoration of peace thus providing enabling environment for oil exploration and boosting of the national economy.

    Subsequently, Boko Haram reared its head and has since continued to torment the nation. Whilst the boko haram insurgency is still an ongoing war, other war fronts have been opened up by Fulani herdsmen welding A-47, killing, maiming, raping and plundering their host communities, kidnapping, demanding and collecting ransom and in many cases, killing their victims. Most of these victims are farmers and because they cannot feel safe to go to farm again, Nigeria is now facing a lack of food crisis or lack of food insecurity.

    Another group of criminals which have emerged and oppressed mainly the north west are known as bandits. They specialise in kidnappings, extortion of ransom and mass murder. The acts of all these criminal gangs constitute a terror to the nation, a terror to the President of the Federal Republic of and even the governor of the state where they operate. Kidnapping at its worst is one involved in school children.

    While Boko Haram claims to be pursuing the establishment of Islamic republic and aided by foreign terrorists, bandits, also aided by foreign terrorists concentrate on dislocation of the socioeconomic life of the country, mass murder of citizens, extortion of ransom etc.

    So many questions have arisen as to deficiency or otherwise of our security agencies. It is clear that activities of these criminals have exposed the shortcomings of our security architecture.

    Creation of special court

    Those advocating for creation of special court to try the offences of these dreaded offenders with the greatest respect, miss the point.

    The creation of such courts will in no way abolish or even reduce the crime. This is because the judges or magistrate who will try such offenders will have to be Nigerians.

    Arrest before trial

    Those to investigate and prosecute them are the same security agencies who have not been able to identify or arrest or disarm them. There has to be an arrest or investigation before a trial proceeding but that does not justify the creation of special courts for these kind of offences.

    Nigeria operates as a democracy where trials have to be in the open. Judges assigned such duties will be doing so with fear and trepidation as he or she might also end up being kidnapped in line of duty. It will not also guarantee special trial.

    The unfortunate scenario in the whole drama is that these offences which ought to be capital in nature i.e treason, murder, abduction with the intention of obtaining ransom, culpable homicide punishable with death, all of which are contained in the criminal and penal code of the various states in Nigeria are treated with kids gloves by our leaders who rather bring such charges under what they call anti-terrorism act and similar light offences.

    Because of religious bigotry, our leaders even defend the criminal act of these hoodlums. Ethnic and religious bias has even made our leaders to water the soil on which these crimes germinate and grow under their very nose.

    The manner in which the leadership at the national leaders discriminates against some sections of the country in the allocation of resources and public offices have helped to create excuses for some criminal elements tearing up their heads in some geo political zones in the country who see themselves as subjugated, deprived and marginalised.

    The promotion and championing of the economic and religious interest of one ethnic group who are bent on enslaving other Nigerians and forcefully taking over their lands and means of livelihood ostensibly, protected and supported by the federal government helps to fuel the crisis.

    There are no pretenses on the part of the Federal Government as to its bid to promote one religion over and above others and to enable one ethnic group to dominate the others.

    Solution

    • Provision of level playing ground for all Nigerians in the pursuit of means of livelihood.
    • Implementation of the federal character principle as enshrined in the constitution in the allocation of public offices and resources.
    • Equal treatment of all Nigerians by law enforcement agencies. An act cannot be termed threat to National Security for which such organisations are prescribed while in other cases they are confined by reason of ethnic and religious origin of the perpetrators. All these help to fuel anger in the land, resulting in threats to our nation.
    • The call for national dialogue with a view to determine the basis of our existence as one nation should not be swept under the carpet m. It is during such national dialogue that people air their frustrations and grievances and amicable solutions are found round the table.

    Unless this is done, the national security crisis will continue to escalate and no amount of court can resolve the problem.

    To be honest, those advocating for creation of  special courts are either hypocrites or talking out of ignorance.

     

  • NBA to re-introduce  ‘Black book’ for erring lawyers

    NBA to re-introduce ‘Black book’ for erring lawyers

    By Adebisi Onanuga

     

    The Nigerian Bar Association (NBA) is set to re-introduce the NBA Black Book  for documenting  erring and recalcitrant members.

    The decision was to mete out  sanction on members in government who use their position to work against the Bar, the 1999 Constitution, and the rule of law.

    This was contained in the communique signed by the NBA President, Olumide Akpata and General Secretary, Joyce Oduah after the association’s first National Executive Council (NEC) meeting held last month in Uyo, the Akwa Ibom State capital.

    The NEC condemned  ”the increasingly worrisome trend and attempts from different quarters, including by legal practitioners, to whittle down the influence of the NBA in the society and further observes with dismay the actions of some of legal practitioners who, when appointed into political offices, truncate the express provisions of the 1999 Constitution and violate the rule of law”.

    It, therefore, resolved  to promote accountability by ensuring that “all members of the NBA who have been nominated to, recommended for, or appointed into boards, councils, and statutory bodies by the NBA or by virtue of their membership of the NBA should provide periodic updates and feedback to the President and NEC on their activities at such bodies and ensure that their position on issues align with those of the NBA and  in the best interest of the profession and the society”.

    The NBA NEC opposed  the ongoing attempt to increase the retirement age of Justices of the Supreme Court and mandated its Judiciary Committee, under the leadership of Dr  Babatunde Ajibade (SAN) to come up with a paper and engage with the relevant authorities.

    NBA leadership noted  with sadness the issue of harassment of lawyers by security agencies in the course of carrying out their duties has not abated.

    It  commended Akpata for liaising with the branch chairpersons and the National Human Rights Commission (NHRC) towards bringing perpetrators to book in a handful of instances and in ensuring that adequate compensation is paid to the victims.

    It also decried reports of sexual harassment at the workplace and pledged to go the extra mile to ensure that this ugly trend ceases and curtailed to the barest minimum.

    It, therefore, directed the President to take more concrete steps in this respect, including through the promulgation of an Anti-Sexual Harassment Policy for the Legal Profession in Nigeria.

    The NEC of the NBA decried the screening for the nomination and recommendation of judicial officers across the country.

    It advocated merit-driven appointment of more judicial officers to ensure competence and effective administration of justice.

    It therefore, advocated more expansive court buildings and improved facilities for court users both at the federal and state levels;  continuous implementation of the COVID-19 guidelines at the courts, including the use of virtual hearings and technology across jurisdictions; and proper case management by judges to ensure that counsels and their clients do not spend inordinate amount of time in court especially in situations where the inadequacies can be addressed upfront.

    It  decried the situation in Gombe State where the issue of the appointment of Justice Beatrice Lazarus Iliya as substantive Chief Judge remains unresolved and noted with displeasure the failure of the Gombe State Governor to comply with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

    It, therefore, declared  the renewal of Justice Muazu Pindiga’s tenure as the acting Chief Judge of Gombe State for the fifth time on March 4, 2021, as a total breach of section 271(5) of the 1999 Constitution and directed the President to strongly convey the position of the NBA to the Chief Justice of Nigeria and the NJC on this point.

    The NBA commended the final resolution of the constitutional crisis in Cross River State through the appointment, confirmation and swearing in of Justice Akon Ikpeme as the substantive Chief Judge of the state.

    It directed that more  efforts should be made towards ensuring that the issue of the non-payment of the salaries of some Magistrates in Cross River State for almost two years is resolved.

    It, therefore, approved the plans of the NBA Public Interest Litigation Committee to commence action in courts should negotiation with Cross River State Government in this respect fail or be unduly prolonged.

     

  • Our stand on Venezuelan diplomat’s case, by AFBA

    Our stand on Venezuelan diplomat’s case, by AFBA

    By Adebisi Onanuga and Robert Egbe

     

    The African Bar Association (AFBA) has said its interest in the Venezuelan Diplomat, Alex Saab’s case is the protection of the Economic Community of West African States (ECOWAS) Community Court and the rule of law.

    Saab, 49, is fighting an extradition order from Cape Verde to the United States, for trial for alleged money laundering.

    The Colombian of Lebanese descent has been in detention since June 12, 2020, when the private plane he was travelling on from Venezuela to Iran made a fuel stop on an island in Cape Verde called Sal.

    CapeVerde has ignored an Economic Community of West States (ECOWAS) court order to free and pay him $200,000 as compensation for ‘illegal arrest and detention.’

    Its Attorney-General’s office stated that this was “because Cape Verde was not in agreement with the body on the supplementary protocol on the ECOWAS court that empowers the code to entertain human right ramifications”.

    AFBA President, Hannibal Uwaifo, warned that shunning a court order would pose problems for the rule of law and was damaging to the authority of the ECOWAS Court.

    Responding to questions from reporters in Lagos, he stated that Saab, just like any other person, should be dealt with under the law, if he was found culpable.

    Uwaifo said: “(The) Saab case is a problem which is going to haunt everyone. People can hide now, maybe he’s not a Nigerian, we’re not interested in all those things, what we’re interested in is the protection of the institution of ECOWAS and the judiciary.

    Read Also: Venezuelan envoy urges ECOWAS Court to halt extradition to U.S.

     

    “If a country is allowed to violate a court’s decision in which you participated; you brought your lawyers I brought my lawyers, you participated in it on African soil. I’m not interested in mundane issues; the African Bar Association is not interested.

    “If the man they’re pursuing has committed crimes, he should be arrested and dealt with in accordance with the law; you don’t come to African soil and abduct an individual. If the court says the man is free to go, that is what it is. All over the world, if the court pronounces that the man is free to go, will they arrest him and begin to pursue him or put him in jail? Look at the Bobby Wine case in Uganda. We are seeing gory pictures. This is problematic. We all must get up, if the people are unable to fight for themselves we must fight for them.”

    Uwaifo also weighed in on the ongoing strike by judiciary workers in the country.

    He said: “The Judiciary Staff Union of Nigeria (JUSUN) strike would have been unnecessary if the government and those who run governance had observed the rule of law.

    “Judicial autonomy is a necessity and should be implemented. Judicial autonomy is the beginning.”

    Uwaifo disclosed that  AFBA’s summit will be held in Niamey, cthe Republic of Niger capital on October 3-7, with over 2,000 lawyers expected to attend.

    The summit, themed ‘Accountable governance as a panacea for the unending conflicts in Africa: The legal profession as the driver’, will review achievements and shortcomings of cooperation programmes between lawyers in Africa over the past years.

    He said some former African presidents would also be honoured at the event for the role they played in the promotion of the rule of law.

    “One of them will be former President Goodluck Jonathan, former President of Liberia, Ellen Johnson, former President of Tanzania,  Jakaya Kikwete, immediate past President of Niger Republic, Mahamadou Issoufou,  the former President of Botswana, Festus Mogae, and a retired judge in South Africa, Vavanethem Pillay,” Uwaifo added.

     

  • Akpata, NICN for SPIDEL conference

    Akpata, NICN for SPIDEL conference

    By John Austin Unachukwu

     

    The Nigerian Bar Association (NBA) President Olumide Akpata and the President of the National Industrial Court of Nigeria (NICN), Justice Benedict Kanyip, have confirmed their participation in the NBA Section on Public Interest Law and Development (NBA-SPIDEL) Annual Conference.

    The conference is scheduled to hold at the exquisite Jogor Centre, Ibadan between May 23 and 26, 2021.

    The event is planned as the first major in-person conference by the NBA since the outbreak of the coronavirus pandemic, with many lawyers expressing interest in participating at the prospect of reconnecting with their peers since the last in-person Annual General Conference in Lagos almost two years ago.

    Read Also: Akpata pledges to make NBA conscience of society

     

    The NICN, in a letter to NBA-SPIDEL Chairman, Prof Paul Ananaba (SAN)  signed by its Principal Registrar, Solomon Olufemi Agunloye , pledged that two of its jurists, Justice John Dele Peters and Justice O. Adebowale would attend.

    Ananaba had, during the just concluded NBA National Executive Committee (NBA-NEC) Meeting, held in Uyo invited NBA President Olumide Akpata to attend the annual conference, an invitation Akpata accepted.

  • Tiv lawyers threaten to sue army over ‘killings’ in Benue

    Tiv lawyers threaten to sue army over ‘killings’ in Benue

    By John Austin Unachukwu

     

    The umbrella body of Tiv Lawyers worldwide, Ayatutu, Ayatutu lawyers Forum, has urged President Muhammadu Buhari to urgently constitute a Panel of Inquiry to investigate alleged atrocities by the Army in Konshisha and Gwer East Local Government Areas (LGAs) of Benue State.

    It threatened legal action against the military if the panel failed to bring to book persons involved in the gross violation of fundamental rights of the civilian population in these areas.

    The army has since April 8, 2021 been combing the Tiv communities of Adoka, Agidi, Agune, Awajir, Bonta, Gbinde, Guleya, Gungul and Ullam in both LGAs following the killing of 11 soldiers.

    In a statement, Ayatutu lawyers Forum condemned the unlawful killing of soldiers but lamented the “disproportionate” military deployment and alleged subsequent attacks on, “killings” and displacement of civilians in Adoka, Agidi, Agune, Awajir, Bonta, Gbinde, Guleya, Gungul and Ullam in Konshisha and Gwer East Local Governments.

    According to it, the military action has continued with the Army High Command vowing not to relent until the alleged killers of the soldiers are apprehended.

    The Army, last week, denied attacking innocent civilians, stating that its operation is to fish out the criminals.

    But the Tiv lawyers disagreed, saying the Department of State Security (DSS), Department of Military Intelligence (DMI) State Criminal Investigation Department (SCID) and others who are trained to do discreet investigation should have been allowed to unravel whatever crime was committed.

    Read Also:Soldiers’ killings: ACF cautions Army over operation in Benue

     

    They said: “It must be noted that the shifting narrative from the Army and other political authorities as to how the soldiers got involved in communal clashes between the Bonta community of Konshisha and Okpute communities of Oju in the first place gives us a source of concern about the undue and unnecessary militarization of the civil space which in itself does not augur well for our democracy.

    “While we all agree that it is wrong to attack and kill soldiers who have, as their names suggest, sold their lives to protect ours, in the line of duty, as no God-given life deserves to be snuffed out without due process, the same sanctity must and should always be accorded to civilian lives, for which a lot of taxpayers’ money is spent on the military in training, retraining, salaries and equipment to secure. This is because the primary responsibility of government and governance, for which government institutions, including the military, are established, is the protection of lives and properties.

    “It is against this background that we totally condemn the rolling out of disproportionate military arsenal, made up of tanks, mortar, artillery and air fire against, and the subsequent bombardment, levelling, burning, killing and displacement of the helpless and hapless civilian population in  Adoka, Agidi, Agune, Awajir, Bonta, Gbinde, Guleya, Gungul and Ullam in Konshisha and Gwer East Local Governments under whatever guise.

    “Collective punishment and disproportionate use of force by any standard are crimes anywhere in the world, irrespective of who is involved and who the victim is, when carried out against communities for the offence of their members, collective punishment is a war crime…

    “We also call on the Federal and State Governments to make the necessary arrangements to avoid the humanitarian disaster that is looming as a result of the unnecessary displacement of the teeming population.”

  • Court strikes out Akwa Ibom State’s N166b suit against Addax Petroleum

    Court strikes out Akwa Ibom State’s N166b suit against Addax Petroleum

    By John Austin Unachukwu

     

    An Akwa Ibom State High Court in Uyo has struck out the N166billion suit by the Akwa Ibom State Internal Revenue Service against Addax Petroleum Development (Nigeria) Limited for want of jurisdiction.

    Justice Theresa Obot upheld the firm’s contention that the court had no jurisdiction to adjudicate on claims arising from Oil Mining Lease (OML) operations.

    The government agency had claimed N166billion against the defendant for various taxes and levies, including Pay as You Earn (PAYE) and Value Added Tax (VAT), purported to have been unremitted by the defendant between 1997 and 2018 and arising from the defendant’s operations of OML 123 allegedly falling within the territorial jurisdiction of the state.

    The defendant, however, contended at the trial that it was not liable to the claimant for any of the taxes and levies claimed, since it did not have any staff or vendors resident within Akwa Ibom State, or otherwise, carry on business in the state.

    The defendant further contended that OML 123 is offshore Nigeria and the abolition of the onshore/offshore dichotomy by legislation heavily relied upon by the claimant only related to the revenue derivation formula and did not change the seaward boundary of littoral states, including Akwa Ibom State.

    Citing the 1999 Constitution, Federal High Court Act, Allocation of Revenue (Abolition of Dichotomy in the Application of the Principle of Derivation) Act and other legislations alongside decisions of the appellate courts the defendant’s counsel argued that the Federal High Court had the exclusive jurisdiction to determine matters on mines and minerals and offshore Nigeria.

    The defendant thus submitted that the High Court of Akwa Ibom State lacked the competence to handle the matter.

     

  • ‘I would have studied Psychology, but…’

    ‘I would have studied Psychology, but…’

    Folakunmi Pinheiro has an LL.B from the University of Hull , England and  an LL.M in Law and Economics from University College, London  He shared his experience in formal education , law practice and other sundry issues with ADEBISI ONANUGA.

     

    Folakunmi Pinheiro was born and raised in Lagos. He is the first of three children of Mr Kemi Pinheiro,  (SAN) and Justice Yetunde Pinheiro of the High Court of Lagos State.

    Fola, as he is fondly called, studied Law at the University of Hull, England, and graduated in 2017. The academic side of his degree programme was enjoyable, he said, especially because it involved scrutinizing assumptions, asking questions, having debates, etc.

    “I suppose my biggest challenge though, was that Hull was not my first choice. To be honest, I only went there because my grades weren’t good enough. So, I spent most of my first year fighting against feeling like a failure.

    “Gradually, I overcame this feeling and began to enjoy my experience more and more. And now, I look back on my time in Hull fondly. I made friends for life, I had memorable experiences, and I finished with a decent grade”, he said.

    Prior to university, Fola attended Grange School in Ikeja. When he clocked 13, he switched to Haileybury College, England, until he was 18 (when he gained admission to Hull).

    “My school years were actually very difficult,” he said. “Not many good memories. I struggled academically, socially, and I used to get into a lot of trouble.

    “But, one thing I can say is that, I do not regret this period, because it made me who I am. It made me learn how to bounce back from failure and disappointment, which has been an invaluable lesson for me.”

    Interestingly, studying Law was not initially in Fola’s plans. He wanted to study Politics because it was his favourite A-Level subject (the others were Biology and Psychology) and (at the time) he wanted to go into politics.

    “But my dad suggested that I study Law instead, so, that way, I could still go into politics and have a legal career to fall back on.

    “In hindsight, I would have studied Psychology. I find human behaviour so intriguing and, during my Masters, I took a module called Evolution and Social Behaviour from the psychology department which was fascinating.”

    On whether, like the general consensus, he found Law School in Nigeria difficult, Folakunmi gave an interesting analysis.

    He said: “In terms of the actual content, Law School was not actually difficult. There were not many hard or complicated concepts to learn, and recollection was prioritised over analysis. So long as you can recall a certain set of facts, you’ll do well. But, what makes it hard is the volume of facts to be recalled and the unwarranted stress in the way it is taught (Disclaimer: I was in Lagos Campus). That, to me, made the process unnecessarily difficult.”

    Nevertheless, he said his approach to Law School intellectual demands was not particularly novel.

    Folakunmi said: “I structured my notes around the past questions. But the thing is: If you ace your MCQ’s and you know your drafts, you put yourself in a good position to do reasonably well. And, of course, you have to make sure you find time for rest and relaxation during the Law School programme.”

    When  asked  about  the most talked about features of the Nigerian Law School, such as its grading system, Folakunmi pulled no punches in his criticism.

    He said: “I am yet to hear a convincing reason for why the grading system still exists. The grading system, combined with students being ranked, tells a story of misplaced priorities, where grades are prioritised over a students’ actual learning process.

    “Yes, it is true that grades get you into the door at top law firms, companies, and universities. It is also true that grades can (generally) be a proxy for competence. But clearly, long-term success is not determined by someone’s law school grades.

    “That said, the only bit of advice I have for people who are disillusioned with the grading system is: work as hard as you can, to avoid being a casualty of the system.”

    Being a lawyer in Nigeria confers one with a respectable staus, but when you are also the son of a Senior Advocate of Nigeria (SAN) dad and a judge mum, the respect and expectations are sky high. But Fola is not taking anything for granted. His status also allows him to experience unique things other lawyers may not have the priviledge to.

    •Fom left: Pinheiro (SAN), Justice Pinheiro and Folakunmi

     

    He experienced one of such unique occurrences when he followed his father to court the day after his Call to Bar.

    Fola said: “I can’t quite remember what the facts of the case were, but I recall that my dad was making an application. He was so proud to announce me alongside him that he struggled to contain his smile. He then proceeded to make his submission and, in closing, he said, ‘And finally, my Lord, I pray that you grant this application because my son is here with me, my Lord. Please don’t embarrass his father, my Lord.’”

    Fast forward to March 2020 and Folakunmi appeared in court by himself for the first time before Hon. Justice Balogun of the Lagos State High Court.

    He said: “I had to make an application to substitute a witness. I was extremely nervous. And to make matters worse, I arrived late.

    “Fortunately, the case was yet to be called. When it was called, I announced to the judge that I intended to make an application. And somehow, he could tell it was my first time appearing alone. ‘Young man. When were you called?’ he asked.

    “I replied: ‘November 2018, my Lord.’

    ‘So, how is this just your first time in court? What have you been doing all this while?’

    ‘I went for my Masters, my Lord.’ ‘Congratulations. When did you finish?’

    ‘September 2019, my Lord.’

    ‘So, what have you been doing since then?’

    I paused awkwardly and said, ‘I was on holiday, my Lord.’

    “He laughed and so did the rest of the Court.

    ‘Counsel, you may proceed with your application. And I will have a word with your parents about your extensive vacations.’

    “I laughed. And then, I made my application, which was granted, and the matter was adjourned for trial.”

    The debate around the wig and gown in Nigeria, is a regular topic for many lawyers, but Fola felt the matter should have been settled long ago.

    He said: “To be honest, I do not know why we are still debating whether or not we should scrap the wig and gown in 2021. Clearly, the wig and gown is a relic of a bygone age. I understand that tradition is important. But tradition must be constrained by functionality and utility. Not just tradition for tradition’s sake.”

    Role models are important for most people and Fola admits they have played more of a role in guiding his actions than mentors.

    “Many people (rightly) find mentorship useful. But  I have relied more on role models,” he said. “A role model can simply be someone whose career path or skillset you admire, someone who inspires you to be better. There is a bit more flexibility than with mentors because role models need not be older than you, nor do they need to be in the same profession as you. But, when it comes to receiving actual advice or making career decisions, I rely on people who have my best interests at heart—my family and my, close friends.”

    Young lawyers in Nigeria often have complaints about their work conditions and Fola notes that this is a real problem, although not peculiar to lawyers alone.

    He said: “The real plight is the plight of young Nigerians. And the high rate of unemployment means that employers have more bargaining power: they feel they can treat employees badly because, worst case, there are many other graduates that can replace them. Unfortunately, I don’t have a particularly novel solution to this other than to encourage people to work hard to make their way out of difficult workplaces.”

    On whether he fancies being a SAN, Professor, or Judge in future, Fola said: “Professor, without a doubt. I prefer the intellectual freedom that comes with being in academia. Instead of being constrained by what is right for a client or what the law is, I am more interested in what is right generally and what the law should be. People have also said that I am a naturally academic person—but I do not know whether this is a compliment or an insult!”

    On whether he would marry a lawyer: “I am indifferent, to be honest. I do not think that lawyers as a group exclusively have any personality traits or characteristics that bankers, doctors, and consultants, etc. do not have. So, for me to say ‘“I will marry a lawyer’” or ‘“I won’t marry a lawyer’” does not really make sense.”

    When asked whether he would encourage his children to study law, he said: “, I won’t encourage my children to study law; not because I do not think it is a good subject to study, but because I would rather encourage them to do what they find interesting and fulfilling.”

  • Johnson’s Will: SAN drags lawyer before Disciplinary Committee

    Johnson’s Will: SAN drags lawyer before Disciplinary Committee

    By Robert Egbe

     

    A Senior Advocate of Nigeria (SAN), Dr. Muiz Banire, has petitioned the Legal Practitioners’ Disciplinary Committee over a letter allegedly written by a lawyer, Mr. Osho Oluyemi, in the legal tussle for the Estate of the late Mrs. Helen Aroon Gill Johnson.

    Banire also filed a N200 million suit with suit number, ID/ADR/1582/2020 against the respondent at the Lagos State High Court as compensation for alleged damage to his reputation.

    In his petition with reference number, BB/LPDC/287/2020, he alleged that the respondent, Osho Oluyemi, in his letter to the Managing Director of Stanbic IBTC Bank, made certain uncourteous and defamatory statements.

    The letter was also alleged to violate Rule 15 (2) (a), (3) (g) & (j) of the Rules of Professional Conduct for Legal Practitioners.

    The alleged statement, he said, constituted a direct attack on his (Banire’s) personality and integrity, as well as legal practitioners in his law firm and Chief Magistrate I of the Lagos Magisterial District.

    The petitioner stated that the Executor and the Executrix of the estate briefed his firm, M. A. Banire & Associates, to represent them in several cases and take immediate and necessary steps in the pending suits.

    The petitioner stated that his clients informed him that since 2017, some of their bank accounts had been frozen via three Bankers’ Orders obtained by the Inspector-General of Police before the Magistrate Court, Lagos in connection with a Police investigation.

    He stated that his firm took steps to have the Bankers Orders set aside adding that on July 21, 2020, the application was granted by Chief Magistrate K.B. Ayeye and as such set aside the Post No Debit orders placed on the account.

    Consequently, the affected banks, 2nd to 4th defendants in Suit No. M/ 341/2020 were served with the order of court to enable them lift the restrictions.

    He alleged that the respondent, (Osho Oluyemi), wrote a letter to the Stanbic IBTC Bank’s MD after the service of the order lifting the restriction on the Bank, challenging its compliance with the court order and also thereby defamed him, lawyers in his firm and the magistrate court.

    However, in his defence, the respondent, Oluyemi Osho, denied the allegation of misconduct stating that he was not privy to the instruction said to have been issued to the applicant’s law firm by Mrs Yetunde Onyekweli, Mr Oluwatobi Onyekweli and Mr Christopher Ibukunoluwa Johnson to represent their interest in the suits listed in the said letters.

    Osho added that out of the 16 beneficiaries of the Will, the applicant only had the instruction to represent three, who were also named executors under the Will, arguing that the applicant was not instructed or authorized to represent all the beneficiaries of the estate.

    He said: ‘’To the best of my knowledge and at the time of the issuance of the letter dated 1st September 2020, I was not aware that the Applicant was involved in the handling of the issues in relation to the Police investigation and the banker’s orders which were subject of Suit No.: M/341/2020.

    ‘’Neither the beneficiaries of the estate nor our law firm was apprised or acquainted with the proceedings stated in those paragraphs until when our client called our law firm to inform us that there was a move to unfreeze and withdraw the money standing to the credit of the estate account’’.

     

  • ‘2011 to 2021 is Nigeria’s ‘decade of law-making’

    ‘2011 to 2021 is Nigeria’s ‘decade of law-making’

    By Robert Egbe

     

    Vice-President Yemi Osinbajo has described the 10 years leading to 2021 as the country’s ‘decade of law-making’ in terms of access to justice.

    Osinbajo observed that the decade had witnessed a raft of legislation geared at improving the criminal justice system and enabling better access to justice.

    He said implementing these laws is “the only way” Nigeria can gradually attain a dream justice system, which will in turn promote peaceful coexistence.

    The VP spoke at the 2021 Lagos Public Interest Law Partnership (PILP) Pro Bono Week with the theme ‘Digitisation of access to justice.’

    The three-day virtual event ended last Thursday.

    Osinbajo, who was represented by Deputy Chief of Staff to President Muhammadu Buhari, Mr Ade Ipaye, noted that there was no perfect justice system in the world, but Nigeria must keep striving.

    “Can the progress be faster?” he asked, “Yes, but we all must also learn to appreciate how far we have gone while sustaining that determination to go farther.

    “If I were to describe the decade 2011 to 2021, in terms of access to justice, I would call it ‘a decade of law-making.’” Osinbajo said.

    Justifying his claim, he identified several laws passed within the period.

    Osinbajo said: “In 2011, a new Legal Aid Act came into force. In 2015, we got the Violence Against Persons Prohibition Act. That same year, the Administration of Criminal Justice Act was enacted…

    “In August 2018, President Muhammadu Buhari also signed the Nigerian Correctional Service Bill into law. Aside from the obvious changes of name from Nigerian Prison Service to Nigerian Correctional Service, there are several other significant developments brought about by that legislation…

    “In September 2020, President Muhammadu Buhari signed into law in Nigeria the Police Reform Bill which addresses several issues affecting policing in Nigeria, including arrest and prosecutorial powers of the police, and the concept of community police…

    Read Also: N140b solar project not free, says Osinbajo

     

    “Considered together, all these laws, to all intents and purposes enacted towards giving Nigerians better access to justice, and generally improving the justice system.”

    The Vice President’s comments followed the welcome address of the chairman of PILP’s board, Senator Daisy Danjuma.

    Danjuma said this year’s events focuses on a wide variety of issues in the access to justice space, including the growing use of technology to enhance pro bono services particularly as a result of the pandemic, prison congestion, new developments in tackling sexual and gender-based violence and providing legal assistance to small business owners of limited means.

    Other speakers at the event included Governor Babajide Sanwo-Olu, the Chief Judge of Lagos State, Justice Kazeem Alogba; President of the Nigerian Bar Association Mr Olumide Akpata, Former Lagos State University (LASU) Vice Chancellor, Prof Lanre Fagbohun SAN among many others.

    Others included University of Lagos (UNILAG) Deputy Vice Chancellor, Prof Ayodele Atsenuwa; Attorney-General Lagos State, Moyosore Onigbanjo SAN; his Ogun State counterpart, Gbolahan Adeniran and Director, Prisoner’s Rights Advocacy Initiative, Ahmed Adetola-Kazeem, among others.

    The event featured the launch of PILP’s online access to justice portal, an awards night, which celebrated dedicated pro bono partners, free legal clinic, theatre performance: Reenactment of Informal justice court by LASU Prof Tunji Azeez and the theatre team, Round Table on ‘exploring the causes of rule of law challenges and implementing alternatives to pre-trial detention in Nigeria

    The PILP was conceived by the Lagos State Government in 2012, as a public-private partnership with the main objective of bridging the gap in access to justice by providing free quality legal services through a pro bono network for individuals and NGOs underserved by other public systems.

    The scheme has since been incorporated as an NGO with a Board of Trustees which reflects the different stakeholders within the justice system.

  • In the temple of justice till death?

    In the temple of justice till death?

    Senior Advocate of Nigeria (SAN) Afe Babalola wants Supreme Court justices to stay on the job for life, just like their counterparts in 24 countries. The Senate is also considering a bill – sponsored by the apex court – to up their lordships’ retirement age by five years. But the proposal might be short on pros and long on cons, writes ROBERT EGBE.

     

    Despite suffering five bouts of cancer, United States Supreme Court Justice Ruth Bader Ginsburg declined to retire.

    Ginsburg had received hospital treatment a number of times, but returned swiftly to work on each occasion, like she had done since she was appointed to America’s apex court by then President Bill Clinton in 1993.

    It was within her rights to stay on in office.

    The US Constitution provides that Federal Supreme Court Justices “shall hold their offices during good behaviour” (unless appointed during a Senate recess). The term “good behaviour” is understood by Americans to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign, or retire.

    Last year, when Ginsburg turned 87, Americans watched her health closely. Just months earlier, she disclosed that she was undergoing chemotherapy for a recurrence of cancer.

    None of those who egged Ginsburg on to retire did so on the basis of declining mental capacity, because despite her advanced age, she maintained her reputation for getting the job done.

    Ginsburg died at her home in Washington, D.C., on September 18, 2020, from complications of metastatic pancreatic cancer.

    Case for life tenure

    Senior Advocate of Nigeria (SAN), Afe Babalola, is an admirer of the American system of life tenure for apex court justices and, if he has his way, Supreme Court Justices in Nigeria will remain on the Bench for life or at the very least, for far longer than the current 70 years retirement age.

    Speaking last Wednesday at the virtual launch of books in honour of Justice Bode Rhodes-Vivour, who recently retired from the apex court on March 22, 2021, Babalola outlined his proposal.

    The founder of Afe Babalola University, Ado-Ekiti (ABUAD) observed that justices become more experienced and wiser as they get older, hence, should be allowed to remain on the Bench for life.

    “There is an urgent need for reform of our judicial system. This is with particular regards to age of judges, most especially those at the Supreme Court,” he said in a statement signed by ABUAD Director, Corporate Information, Mr. Tunde Olofintila.

    Babalola frowned at the present situation where strong and mentally alert judicial officers are eased off the Bench on account of a constitutional retirement age of 70 when their services and experience are still most needed.

    His said: “I want to seize this opportunity to plead that we should review our justice system, particularly the age of retirement of Supreme Court Judges. Experience has shown that a person becomes wiser and more experienced as he advances in age.

    “Under our judicial system. today, Justice Olabode Rhodes-Vivour JSC (Rtd) is retiring at the young age of 70 when he has not shown any sign of physical weakness and when Nigeria would have benefitted more from his wealth of wisdom, insight and experience.

    “A brief look at other countries shows that appointment to the Supreme Court is a lifetime appointment. There is no age limit for a justice of the Supreme Court to retire. Often times, they stay as long as they probably can. In fact, many die while in office.

    “But those who opt for retirement, the average age is 78.7 years. The average retirement age has grown a whopping 103 years.”

    Supreme Court wants longer tenure too

    Babalola has a point – a strong one.

    As Roman lawyer and scholar Marcus Tullius Cicero noted in time immemorial, Usus est magister optimus (practice makes perfect).

    If Babalola’s proposal succeeds, it would make the judiciary Nigeria’s premier geriatric occupation. Interestingly, the Supreme Court seems to agree with him in part.

    The Senate Committee on Constitution Review on January 30, began a two-day retreat with the revelation that the Supreme Court was canvassing the increase in the retirement age of the apex court justices by five years.

    Deputy Senate President, who also doubles as the Chairman of the committee, Ovie Omo-Agege, made the disclosure in his keynote address.

    He explained that one of the memoranda before the committee was one from the Supreme Court canvassing the shift in the retirement age of Supreme Court justices from 70 to 75.

    According to him, there is also another memo calling for increase in the retirement age of judges of the states, including the FCT and the federal high courts from 65 to 70 years.

    The House of Reps is also considering a similar bill.

    According to the Chairman of the House Committee on Judiciary, Mr Onofiok Luke, who sponsored the bill at the lower chamber, this will protect judicial officers from pressure, and promote experience and quality in justice delivery.

    Age falsification

    Besides the benefits noted by Onofiok, there is also the belief that a longer tenure for justices might also discourage the idea of age falsification by some judges in an attempt to extend their stay in office, a ground for which a number of them, particularly at the high court level, have been recommended for retirement by the National Judicial Council (NJC) in recent times. In 2016, two judges of the Niger State High Court were sanctioned for allegedly falsifying their dates of birth; while another judge was recommended for compulsory retirement. In April 2020, the NJC recommended the compulsory retirement of yet another judge, an Acting President of a state Customary Court of Appeal, alleged to have falsified his date of birth and avoided his retirement which was due five years earlier.

    How Nigerian justices got 70 years as retirement age

    Added to former Head of State, the late General Sani Abacha’s long list of abuse of power was his arbitrary tinkering with Supreme Court Justices’ tenure in 1993.

    A retired Justice of the apex court, James Ogebe, recounted the intriguing story in March, last year at a book presentation in Abuja to mark his 80th birthday.

    The book, an autobiography of the octogenarian, is entitled: “Justice under the shadow of the Almighty; My life sojourn to the Nigerian Supreme Court.”

    Justice Ogebe narrated how Abacha extended the compulsory retirement age of Justices of the Supreme Court from 65 years to 70 years in a bid to frustrate the hearing of an appeal against the bail of winner of the June 12, 1993 election, Chief Moshood Abiol, at the Supreme Court.

    He said: “When business mogul, turned politician, Moshood Abiola, was arrested after declaring himself President after the June 12, 1993 election, I was put on a panel of Appeal Court Justices who granted him bail.

    “General Abacha’s regime did not take kindly to our decision and appealed against our decision to the Supreme Court. However, the Supreme Court could not form a quorum because many of the Justices recused themselves since they had a libel lawsuit against Abiola’s Concord newspaper. There was, accordingly, a stalemate because of shortage of Justices on the Supreme Court.

    “Rather than appoint new Justices who would then form a quorum to hear Abiola’s bail case, General Abacha decided to extend the retirement age of Justices from 65 years to 70 years, to continue to keep Abiola in legal limbo. He, therefore, did not appoint more Justices before his sudden death.”

    Justices tenure in other jurisdictions

    Babalola makes an interesting claim that in many countries, appointment to the Supreme Court is for life.

    According to statistics database, NationMaster, the Silk is right. No fewer than 23 countries have no retirement ages for their apex court justices.

    The countries and the mode of their appointment of justices are:

    Argentina: Judges nominated by the President and approved by the Senate; judges serve for life

    Aruba: Joint Court judges appointed by the monarch for life

    Australia: Justices appointed by the governor-general in council for life with mandatory retirement at age 70

    Austria: Supreme Court judges nominated by executive branch departments and appointed by the President; judges serve for life; Constitutional Court judges nominated by several executive branch departments and approved by the President; judges serve for life; Administrative Court judges recommended by executive branch departments and appointed by the President; terms of judges and members determined by the President

    Belarus: Supreme Court judges appointed by the President with the consent of the Council of the Republic; judges initially appointed for five years and evaluated for life appointment;

    Belgium: Supreme Court judges appointed by the monarch from candidates submitted by the High Council of Justice, a 44-member independent body of judicial and non-judicial members; judges appointed for life

    Colombia: Supreme Court judges appointed by the Congress from candidates submitted by the President; judges appointed for life;

    Comoros: Supreme Court judges selected – 2 by the President of the Union, 2 by the Assembly of the Union, and 1 each by the 3 island councils; judges appointed for life;

    Czech Republic: Supreme Court judges proposed by the Chamber of Deputies and appointed by the President; judges appointed for life;

    Federated States of Micronesia: Justices appointed by the President of the Federated States of Micronesia with the approval of two-thirds of Congress; justices appointed for life.

    Greece: Judges selected by the Supreme Judicial Council which includes the President of the Supreme Court, other judges, and the prosecutor of the Supreme Court; judges appointed for life following a two-year probationary period.

    Guinea-Bissau: Judges nominated by the Higher Council of the Magistrate, a major government organ responsible for judge appointments, dismissals, and discipline of the judiciary; judges appointed by the President with tenure for life

    Iceland: Judges proposed by Ministry of Interior Selection Committee and appointed by the President; judges appointed for an indefinite period

    Luxembourg: Judges of both courts appointed by the monarch for life

    Mongolia: Supreme Court chief justice and judges appointed by the President upon recommendation to the State Great Hural by the General Council of Courts; term of appointment is for life;

    New Zealand: Justices appointed by the Governor-Ggeneral on the recommendation of the Attorney-General; justices appointed for life

    Portugal: Supreme Court justices nominated by the President and appointed by the Assembly of the Republic; judges appointed for life;

    Russia: All members of Russia’s three highest courts nominated by the President and appointed by the Federation Council (the upper house of the legislature); members of all three courts appointed for life

    Singapore: All judges appointed by the President from candidates recommended by the prime minister after consultation with the chief justice; justices appointed for life

    Suriname: Court judges appointed by the National President after consultation with the High Court; judges appointed for life

    Sweden: Supreme Court and Supreme Administrative Court justices nominated by the Board of Judges, a nine-member nominating body consisting of high-level judges, prosecutors, and members of Parliament; justices appointed by the Government; following a probationary period, justices’ appointments are permanent

    United Kingdom: Judge candidates selected by an independent committee of several judicial commissions, followed by their recommendations to the prime minister, and appointed by Her Majesty The Queen; justices appointed during period of good behaviour

    United States: President nominates, and with the advice and consent of the Senate, appoints Supreme Court justices; justices appointed for life.

    Mental decrepitude, incapacity

    One problem proponents of life tenure will have to solve is mental decrepitude and incapacity caused by ageing. Great age often precipitates mental fatigue and other infirmities, which may impair judgment. Justices on life tenures will also have to contend with Nigeria’s work environment and other social-economic conditions, which may be less conducive than that in the US or UK, for instance.

    Poor work conditions

    A retired judge of the Ogun State Judiciary, Justice Babashola Ogunade identified poor  work conditions as one factor that will make life tenure a burden for justices in Nigeria.

    He told The Nation that seeking life tenure for judges without addressing their welfare would be tantamount to putting the cart before the horse.

    “The first thing to address is the condition of service of the Judiciary or judges in particular. I am not limiting myself to the Supreme Court. It is judges from the high court who rise up to the Supreme Court.

    “They (lawmakers) need to start from there to make their (judges) condition better. You can’t keep having a condition in which a judge sits in chambers without light, he gets home there is no water: I don’t know whether the position has changed now. That was the position in which I left it 20 years ago.

    “And then you find a situation that – it still happens till today – judges don’t have books which they are going to use. If they’re continuing under this condition, for me it will be unkind to ask anyone to remain on the bench beyond 70 years in the Supreme Court, it would be unkind, even the Court of Appeal.

    “Before you even talk of increasing their retirement age at all, you must first of all improve their condition of service.”

    Justice Ogunade also cautioned against adopting foreign systems hook, line and sinker.

    He said: “The problem we have in this country is that we often compare ourselves with what goes on abroad. The condition abroad is far, far different from ours. You go into any superior court abroad, you wonder whether the judges are listening to you or not, yet they are. They’re old, they don’t do any long writing and that is the reason they are able to continue for a long time.

    “In the present situation I don’t think it would be kind to ask anyone to remain on that bench until after 70.”

    Supreme Court Justices overworked

    Judges and other justice sector stakeholders also often complain that judicial officers in the country are overworked. Extending their tenures rather than allowing them to quit the Bench and enjoy their old age might thus take a heavy toll on their health.

    At the maiden annual lecture of the Body of Senior Advocates of Nigeria (BOSAN) on June 28, 2019, then Chief Justice of Nigeria (CJN) Walter Onnoghen lamented that judges, particularly at the Supreme Court level, were nearly being worked to death.

    Onnoghen said: “Look at the job of a judge, particularly with political matters all over: nobody wants to do justice to his fellow human being except it goes to court. Even when it gets to court, you are not ready to accept what the court says, whatever the court says, it must have been compromised one way or another.

    “So, you create these problems and we are there, like these election matters, they have started already, pre-election matters, disputes about (party) congresses all over the place. Good! They will come back to the judicial officer and we’ll work, like at the Supreme Court, we work and we’re almost dropping dead.”

    Mental decreptitude

    In Mental Decrepitude on the U.S. Supreme Court, published in the Fall 2000 University of Chicago Law Review, historian David J. Garrow argues against life tenure in the United States.

    Garrow provided several examples of the dangers of the system.

    According to him, Justice Thurgood Marshall who died in 1993, reportedly spent his last years on the US Supreme Court, telling tales, watching TV, and letting his clerks do the bulk of his work. He became slow, feeble, increasingly deaf, and once embarrassed himself during oral arguments by revealing he didn’t realise which side the lawyer he was interrogating represented.

    A decade and a half earlier, Justice William O. Douglas was also said to have closed out his time on the Bench by dozing during arguments, addressing people by the wrong names, and speaking in non-sequiturs. It was said that after his resignation, he continued to show up for work, apparently convinced that he was still on the court.

    Similarly, Justice Joseph McKenna was said to become so incompetent at the end of his term that, in the words of his colleague Justice William Howard Taft, he once “wrote an opinion deciding the case one way when there had been a unanimous vote the other, including his own.”

    ‘Only the best for the apex court’

    For Justice Ogebe, there are other important issues, one of which is the need to appoint only the best and most qualified onto the Bench of the apex court.

    He said this was necessary because the Supreme Court was the policy court that guided all other courts in the country and that being the final court in the land placed a serious responsibility on the occupiers.

    “It is my belief that the best human capital available in the country should be appointed to the apex court which is the policy court that guides all the courts in Nigeria.

    “The federal character consideration in appointment has done considerable damage to the quality of Justices appointed to the Supreme Court.

    “In all seriousness, a few appointments made to that court constituted a liability on the system. Some of these Justices were mediocre and were not suitable material for the apex court”, he said.

    Justice Ogebe, who chaired the five-man panel of the Presidential Election Petition Tribunal, which heard the appeals of President Muhammadu Buhari and that of Alhaji Atiku Abubakar against the election of late President Umaru Yar’Adua in 2007, also advised Justices being considered for the Supreme Court to decline the nomination if they were not sure of their ability to perform at that level.

    All eyes on NASS

    In the coming days, Nigerians will be keen to see how the National Assembly will react to the bill for it and Chief Babalola’s proposal.