The Nation Newspaper

Category: Law

  • Supreme Court affirms robber’s death sentence

    The Supreme Court has affirmed the death sentence passed on  Daniel Kekong for armed robbery.

    It okayed the Court of Appeal decision of October 28, 2014 affirming the appellant’s conviction and sentence by the Cross River State High Court.

    Prosecution counsel Ade Oyebanji said Kekong was among three men who attacked and robbed a recharge card dealer, Perpetua Ubua, of her handbag containing N128,000-worth of recharge cards, N285,000 cash and two mobile phones.

    Ubua testified that she was on her way home after the day’s business on a motorcycle, when her attackers, riding on another motorcycle, snatched her bag.

    She struggled with them but was overpowered, while the boys started shooting to scare people away.

    Kekong gave the recharge card to Promise Inyang to sell. Inyang in turn gave it to Elizabeth Obu to help him sell. Obu took the recharge cards to Ubua, asking her to pay whatever she wished for them, not knowing that the recharge cards were stolen from Ubua.

    Ubua reported the matter to the police, and the recharge cards were traced to Kekong. He was tried, convicted and sentenced to death for armed robbery, while his co-accused Inyang, was discharged.

    Kekong’s appeal against his conviction was dismissed by the Court of Appeal, Calabar Division, which upheld his death sentence.

    He further appealed to the Supreme Court, claiming a miscarriage of justice over the non-admission in evidence of a Police Investigation Report, which stated that Ubua could not identify those who stole her recharge cards.

    The Supreme Court held that the report lacked substance and did not meet the requirements of Section 232 of the Evidence Act 2011.

    It further held that the prosecution proved its case beyond reasonable doubt.

    “The evidence linked the appellant to the Glo recharge cards violently stolen from Ubua when she was robbed on 19th January 2013. The appellant had thus come to be in possession of stolen goods.

    “Thus, a proper foundation had been laid for the invocation of the presumption under Section 167 (a) of the Evidence Act 2011 to the effect that a man who is in possession of stolen goods soon after theft or robbery is either the robber or a receiver of stolen goods knowing them to have been stolen, unless he could give account of his possession.

    “There is no reasonable doubt about the guilt of the appellant for the offence of armed robbery charged. The trial court found him guilty; holding that his guilt was proved beyond reasonable doubt. The finding was affirmed by the court below.

    “No good cause has been shown why I should disturb the concurrent findings of the two lower courts. On the whole, there is no substance in this appeal, and it is accordingly dismissed in its entirety,” the Supreme Court held in the April 28 judgment delivered by Justice Ejembi Eko.

  • SAN seeks caretaker committee for NBA

    Former Lagos Branch  of Nigerian BarAssociation (NBA) Chairman, Mr. Chijioke Okoli (SAN) has urged the Chief Justice of Nigeria, Justice Walter Onnoghen to set up a caretaker committee to run the affairs of the association.

    In a June 9 letter, Okoli noted that Justice John Tsoho of the Federal High Court in Abuja had “unequivocally and pointedly” nullified the amended 2015 NBA Constitution “and everything done or purported to have been done thereunder”.

    Justice Tsoho, in his judgement, in a suit filed by Olasupo Ojo against the Incorporated Trustees of NBA, invalidated the constitution because it was not registered at the Corporate Affairs Commission (CAC).

    Okoli slleged that by virtue of the verdict “the NBA leadership under A. B. Mahmoud (SAN), having been ushered into office on the basis of elections conducted under the said constitution, has unquestionably lost legal validity”.

    He noted that rather than comply with the dictates of the judgement, “Mr. Mahmoud has been treating the otherwise binding judgement with scorn and derision. This is as dangerous as it is unacceptable for a multiplicity of self-evident reasons.”

    Okoli recalled that on May 24, 2017, he wrote Mahmoud to draw his attention to these anomalies, adding that the crisis “requires decisive intervention by leaders of the Bar and all those primarily concerned with the administration of justice in our country”.

    He specifically urged the Body of Benchers, of which the CJN is chairman, to redress the situation.

    To buttress his request for a caretaker committee, the former branch chairman said it was “informed by the fact of the total incapacitation of the officers of the NBA by the said court’s judgment against the backdrop of some provisions of the Legal Practitioners Act…”

    According to Okoli, Section 10(2) – (5) of the LPA empowers the Body of Benchers to set up a Caretaker Committee “to manage the affairs of the NBA for a period not exceeding 12 months. The Caretaker Committee appears to be sorely needed to save the Association and the machinery of administration of justice in the country from other disputes.”

    Okoli intimated Mahmoud on why it would be honourable to vacate office, saying: “Even more disconcerting, however, has been the nonchalance, if not disdain, which underpin the reactions of the office of NBA presidency under your watch to the judgment. It has proceeded as if nothing has happened.

    “As weighty as they are, the untoward practical effects of your stance regarding the judgment as discussed in this letter probably pale into secondary importance in comparison with the damaging effect on the concept of rule of law. The NBA rightly professes rule of law as an article of faith, but its current stance under your watch is the antithesis of the sacred concept.”

  • ‘How trade laws can boost economy’

    Proper application of trade laws can attract investment and boost the economy, a commercial lawyer, Chinedu Ezeokoronkwo, has said.

    He noted that some foreign investors put off doing business because they are uncertain about the international validity of laws governing trade in Nigeria.

    One way of making things clearer, he said, is to domesticate the United Nations (UN) Convention on Contracts for the International Sale of Goods (CISG).

    Ezeokoronkwo, the President of Susana Cares Foundation, stated this at launch of his book ‘The Dynamics of Trade Law in Nigeria’.

    He said the book is aimed at ameliorating the plight of trade practitioners transacting business domestically and internationally.

    It would, he added, “bridge the gap between the practical and theoretical aspects of what we study in school and what we do in court and the real business world.”

    The non-domestication of the CISG, Ezeokoronkwo noted, “is very unfortunate because Nigeria, as the giant of Africa, should take the lead in the comity of nations, but has not done that.

    “The book is also a clarion call that this Act should be adopted and domesticated. If this is done, it can be a veritable tool towards economic recovery. The book also made a strong argument for a more proactive enforcement of international awards. This will instill confidence in the minds of investors.”

    He said it also addressed the usurping of powers between the National Agency for Food and Drug Administration and Control (NAFDAC) and Standards Organisation of Nigeria (SON).

    “Both agencies have their different functions but you see one agency usurping the power of the other and it shouldn’t be,” Ezeokoronkwo noted.

    Proceeds from the sale of the book, he added, will be used by Susana Cares Foundation to fund the education of indigent students.

    Book reviewer Izuchukwu Onyebuchi noted that the author “did great justice to trade law in Nigeria.”

    Onyebuchi said: “The book sets out the type of businesses that can be done in Nigeria as well the legal regime and regulatory bodies.

    “It also discusses the legislation that regulates specific businesses. It is a one-stop-shop for all the legal knowledge you want to gain if you want to start business in Nigeria.”

  • Can interruption of a governor’s tenure be compensated?

    Can interruption of a governor’s tenure be compensated?

    Recently, Governor Ayodele Fayose made headline news with a statement which signalled his intention to seek for a tenure elongation or re-election for a compensatory tenure to make up for the unexhausted part of his truncated first tenure.

    It would be recalled that in 2006, Fayose, then in his first tenure as Governor of Ekiti State, was removed from office in a questionable manner through an impeachment process which was later declared unlawful by the Supreme Court1- the harm having already been done to him after he had lost about seven months of his tenure.

    As expected, the said statement has thrown up a heated debate amongst legal luminaries, political pundits, and a cross section of the Nigerian society, with the main thrust of the argument anchored on what constitutional fate awaits Governor Fayose. Interestingly, on one side of the divide are those in support of Governor Fayose’s alleged ambition and on the other end are those who view same as untenable.

    Whilst we await the pronouncement of the Supreme Court on this issue, hoping that Governor Fayose makes good his promise to first approach the Apex Court for interpretation of Section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), (the Constitution)- with respect to the constitutionality of a tenure extension/re-election of an illegally impeached Governor – before throwing his hat into the ring, it appears that this issue has hitherto been addressed by the Apex Court in its previous decisions, albeit not so expressly highlighted. This article thus seeks as its major objective, to unearth the position of the law on the issue at hand through a holistic interpretation and proper application of relevant statutory/decided authorities.

    For reference purpose, the said section 180(2) of the Constitution which is the subject of interpretative contest, states as follows:

    “180(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of period of four years commencing from the date when –

    (a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and

    (b) the person last elected to that office took the Oath of Allegiance and oath of office or would, but for his death, have taken such oaths.”

     

    Points Identified

    The following points are apparent from the provision of section 180(2) of the Constitution and the controversy now raised by the statement credited to Governor Ayodele Fayose:

    Whether the duration of the four-year tenure of a state governor as constitutionally envisaged, ought to be uninterrupted.

    1. Whether an unexhausted part of a four-year tenure of a state governor illegally impeached in the course of his/her term, ought to be discountenanced in the computation of his/her full tenure.

    iii.        Whether the tenure of office of Governor of a State can be extended to compensate for period out of office due to unlawful impeachment.

    We shall now proceed in this discourse to examine briefly the points raised above before arriving at a conclusion on whether the position now sought to be taken by Governor Fayose would find support in law.

     

    Whether the duration of the four year tenure of a state governor as constitutionally envisaged, ought to be uninterrupted

     

    It is clear, that Section 180 (2) of the Constitution makes provision for a four-year period as a single tenure for a governor in office. However, the Constitution does not expressly state whether or not such duration ought to be uninterrupted. This prompted the Supreme Court’s pronouncement on this point in LADOJA V. INEC & Ors. Per Aderemi, J.S.C., where the Court faced with a similar circumstance as applicable in the case of Governor Fayose, stated as follows:

    “… he (1st respondent/cross-appellant) took his oath of allegiance and oath of offices as Governor of Oyo State on the 29th of May, 2003. The wordings of section 180(2)(a) and (b) are very clear and unambiguous. Being a person first elected as Governor, his four-year tenure would start to run from the 29th of May, 2003. It is true that by the impeachment foisted on him by the State House of Assembly whose impeachment was later declared null and void by court, he was kept out of office for a period of eleven months that he is praying the court to declare that he is entitled to a term of four uninterrupted years in office as Governor of Oyo State commencing from the 29th of May, 2003 and consequently, to hold that by virtue of the provisions of section 180(2)(a) of the Constitution applicable, he is entitled to remain in office until 29th April, 2008 when, according to him, what he described as his term of four uninterrupted years as Governor of Oyo State would expire. I have again carefully read the aforesaid provisions of the Constitution; the word uninterrupted was not used to qualify the four-year tenure to which the plaintiff/appellant was entitled as Governor of Oyo State (underlining mine)”.

    By virtue of the above dictum, the Supreme Court passed the message that the Constitution does not give room for any interruption in the computation of the four-year duration of a Governor’s tenure. The law therefore requires that once a Governor takes the oath of office, the clock of his/her tenure mandatorily programmed by the Constitution to function for four years, starts ticking and not even an illegal impeachment can pause its functioning, nor hold its hands from ticking.

    • To be continued

  • ABC of constiutional, migration law

    Title: S.T. Hon’s Constitutional and
    Migration Law in Nigeria
    Author: Sebastine Tar. Hon, (SAN)
    No. of Pages: 1,229
    YEAR of Publication: 2016
    Publisher: Pearl Digital Press, Port Harcourt
    Book Reviewers: Dele Adesina (SAN),  Garba Pwul (SAN) David O. Ezaga (SAN)

    Published last year, the book  “S.T. Hon’s Constitutional and Migration” is, in our humble opinion, the most authoritative book on the subject matter in Nigeria today, being a well researched, well arranged and up-to-date book written by a very seasoned legal practitioner and author.

    Broadly speaking, the book has discussed all the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, with the support of very relevant and current judicial and scholarly authorities.

    Chapter 1 of the book has traced Nigeria’s constitutional history and has also provided tens and tens of principles of constitutional and statutory principles of interpretation, as formulated by the courts. Major words used in the Constitution and which have been given judicial definitions have also been reported and discussed extensively, providing the reader with a very good legal foundation to understand and interpret the provisions of the Constitution.

    Chapter 2, entitled “General Provisions of the Constitution of the Federal Republic of Nigeria, 1999 and Distribution of Federal Powers,’ has discussed the constitutionally-enshrined separation of powers, democracy at the Local Government level, amendment of the Constitution and binding nature of treaties. The powers of the Legislature, the Executive and the Judiciary have been discussed. Here too, the author has demonstrated his deep research, by supplying very relevant and current authorities to cover the topics and subtopics discussed.

    Chapter 3 has also discussed in admirable details the provisions of the Nigerian Constitution on ‘Fundamental Objectives and Directive Principles of State Policy,’ outlining and deeply covering the respective duties of the State and the people.

    To be specifically noted is Chapter 4, which has discussed ‘Citizenship, Migration into Nigeria, Refugee Entry and Movement, Extradition and Movement of Persons within the ECOWAS Sub-Region.’ Inherently and naturally discussed alongside extant provisions of the Constitution are relevant provisions of Nigeria’s Migration, Extradition and Refugee Laws vis-à-vis those of foreign countries like Canada, the United Kingdom, etc. Also discussed are international and regional instruments like the ECOWAS Treaty of May 28, 1975, the UN Geneva Convention on the Status of Refugees, the UN Charter and various Declarations, Etc. Current case law has been supplied by the author to back up his discussions.

    Of critical importance, too, is Chapter 5 of the book, which, spanning pages 307-758, is christened ‘Fundamental Rights and Fundamental Rights Enforcement Procedure.’ The author, quite commendably, has dug very deep into the fundamental rights provisions of the Nigerian Constitution (Chapter IV thereof), discussing them with innovative legal skills. Of particular note is the author’s discussion on comparative international legal instruments – like the European Convention on Human Rights, the Constitutions of the US, the UK, India, Pakistan, South Africa, Canada (the Constitution Charter), the UN Charter on Human Rights, etc. The amazing research capability of this author is on full display under this Chapter – where very current judicial decisions of superior courts of record in Nigeria and of all the above-mentioned countries/international judicial bodies have been cited and discussed.

    To the best of our knowledge, this is probably the first time a book on Constitutional Law in Nigeria has discussed extensively topics and subtopics like ‘Duty and Obligation of the State to Protect Life;’ ‘Surrogate Pregnancy and Assisted Reproduction;’ ‘Parents Rejecting Medical Treatment for their Children’ and Euthanasia, Mercy Killing and Assisted Suicide’ (under Right to Life); ‘Unauthorised Photography;’ Unauthorised Publication of Personal or Confidential Information or Data’ and Medical Privacy’ (under Right to Privacy), etc. The author has discussed all these and many more under Chapter 5, supporting himself, quite commendably, with current local and foreign decisions.

    Chapter V has also done annotations on the Fundamental Rights (Enforcement Procedure) Rules, 2009 – again, with the support of relevant decisions of superior courts. In view of the fact that these Rules have not been exhaustively tested in our appellate courts, the author’s innovative reasoning is a most welcome effort that will ease work for law students, practitioners, researchers and Judges. To be specifically and specially appreciated is the fact that the author has discussed even current decisions on the said Rules.

    Chapter 6 of the book has discussed The Legislature. Subtopics like the Composition and Staff of the National Assembly, Procedure for Summoning and Dissolution of the National Assembly, Qualifications for Membership of the National Assembly and Right of Attendance; Elections into the National Assembly; Power and Control by the National Assembly over Public Funds; and similar provisions as they relate to State Houses of Assembly, etc, have been discussed. This Chapter, also supported by the most current decisions of superior courts of record in Nigeria and outside the shores of Nigeria, spans over 73 pages.

    The Executive Branch of Government is discussed under Chapter 7 of the book. Commenting on section 130 of the Constitution, the author quite correctly likens the Nigerian President to the USA President, who is clothed with executive powers, making him the head of government as well. The authority of A-G of the Federation vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1 at 85 and the US decisions of United States vs. Pink, 315 US 203 (1942), United States vs. Belmont, 301 US 324 (1937), etc, are cited by the author in support.

    Providing recent cases and scholarly commentaries, the author has discussed subtopics like Establishment of Office of the President, Qualification and Procedure for Election of President; Tenure of Office of the President; Death, etc, of President-Elect Before Oath of Office; Disqualification from Contesting for Office of President; Presidential Election Tribunal, Office of the Vice-President; Removal of President and Vice-President from Office; Permanent Incapacity of President or Vice-President; Acting President During Temporary Absence of President; Appointment of Ministers and Ministerial Responsibilities; Attorney-General of the Federation and Public Prosecutions; Appointment and Powers of Special Advisers; Public Revenue; Code of Conduct of Public Officers; Pension Rights, Presidential Pardon, etc. Corresponding provisions of the Constitution with respect to the States have also been amply discussed.

    Also discussed under this Chapter are ‘Presidential Control of the Armed Forces and the Police;’ ‘Formation, Registration and Regulation of Political Parties by the Independent National Electoral Commission, INEC;’ ‘Role of INEC in Elections,’ etc.

    Chapter 7 has discussed The Judicature or the Judiciary. The establishment, composition, jurisdictions and powers, etc, of the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the National Industrial Court, superior Courts of the FCT Abuja, State High Courts, the Sharia Court of Appeal, the Customary Court of Appeal, the Code of Conduct Tribunal, etc. have been discussed in great detail. We hereby state that the three Alteration Acts to the 1999 Constitution have affected the Judiciary more than any other branch of government; and the author has again lived up to his billing by discussing all the various amendments – with the support of current decisions of courts of record.

    Also discussed under this Chapter are the appointment and discipline of judicial officers, reference of questions of law to higher courts, etc.

    The last Chapter is christened ‘Federal Capital Territory, Abuja, and General Supplementary Provisions.’ It has discussed, with the support of both local and foreign decisions, the Establishment and Status of the FCT Abuja, Procedure for the Declaration of a State of Emergency (where judicial, historical and empirical happenings in the USA, Pakistan, Sierra Leone, etc, have been admirably and fittingly discussed); Resignation from Office of the President, Etc, Restriction on Legal Proceedings against the President, Etc, Existing Laws, Savings/Transitional Provisions of the Constitution; Interpretation of the Provisions of the Constitution, etc.

    General conclusion: S.T. Hon’s Constitutional and Migration Law in Nigeria is a massive monograph of 1,229 pages. It has discussed over 2,500 reported and unreported decisions of courts in Nigeria and abroad. It has also discussed tens and tens of comparative provisions of foreign constitutions and international legal instruments. It is an up-to-date source material that is a must-acquire for every person – since the Constitution affects all.

  • Saleh: Activist as NJC’s secretary

    Former National Judicial Council (NJC) Executive Secretary Danladi Haliru vacated office after attaining the mandatory retirement age of 60 years. Immediate past Chief Registrar of the Supreme Court Ahmed Gambo Saleh has succeeded him. Eric Ikhilae examines the tasks ahead as Saleh assumes office.

    The baton changed hands on July 1 at the National Judicial Council(NJC). Former Chief Registrar of the Supreme Court, Ahmed Gambo Saleh, mounted the saddle as NJC Executive Secretary succeeding Danlandi Haliru, who retired on attaining the mandatory retirement age of 60 years.

    It was not an easy ride for Saleh, whose dream of succeeding Danladi was almost aborted by the tide of the current administration’s anti-corruption war.

    Shortly after the then Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed accepted Saleh’s choice for the NJC job, came the allegation of his involvement in corrupt practices.

    The office of the Attorney-General of the Federation (AGF) brought a charge against Saleh and two others – Muhammed Abdulrahman Sharif and Rilwanu Lawal – at the High Court of the Federal Capital Territory (FCT), accusing them among others, of involvement in a N2.2billion contract fraud.

    But, they were never arraigned. On February 7, this year, the charge against them were withdrawn in exchange for Saleh’s testimony as prosecution witness in the trial of Justice Sylvester Ngwuta (of the Supreme Court), charged with money laundering, before the Federal High Court, Abuja.

    Observers said with a new CJN in Justice Walter Onnoghen and an Executive Secretary, who is less than 50 years, the NJC is, this time, well-fortified for the tasks ahead.

    The NJC has been criticised for being too slow in attending to petitions against judicial officers, withholding the stick against erring judges, poor exhibition of transparency in the appointment of judges, among other inadequacies.

    Many, however, hope that this change of baton will yield a change of affairs at the NJC.

    Saleh was born on June 3, 1969 in   Hadejia, Jigawa State. He obtained his first and second degrees in Business and Commercial Law from Usman Danfodio University Sokoto and Bayero University Kano. He was called to the Bar in 1996.

    Saleh practised Law for two years before joining the Jigawa State Ministry of Justice as a Senior State Counsel, where he rose to become the Deputy Director, Legal Drafting. He was seconded to Federal Ministry of Works, where he served as the Special Assistant to the Minister from 2003 to 2005.

    Thereafter, he returned to the service of the Jigawa State Ministry of Justice as the Acting Director, Legal Drafting.

    As a Bar activist, he was elected the Chairman of the Nigerian Bar Association (NBA) Dutse Branch in 2008. He was appointed the Special Assistant to former CJN, Justice Idris Legbo Kutigi.

    In 2010, he was appointed a Deputy Chief Registrar and in November 2014, he became the 16th Chief Registrar of the Supreme Court.

    Many said Saleh brings with him a wealth of administrative experience, having performed creditably as the Chief Registrar of the Supreme Court, during which the court recorded some major improvements.

    While at the Supreme Court, Saleh worked to ensure the continued automation of court processes, part of which resulted in a more active web site for the court. Interviews of candidates for the conferment of the rank of Senior Advocate of Nigeria (SAN) are streamed live on the website of the Supreme Court.

    The initiative is to enable members of the public to view and assess the suitability or otherwise of the interviewees in order to forestall allegations of preferential treatment, bias and nepotism in the appointment process.

    Other major activities of the court, including its new Legal Year Ceremony, are streamed live on the apex court website.

    The internal structure and fittings of the courtroom known as Court Two have been completely re-structured, re-constructed and re-fitted with modern digital and state of the art equipment and computers.

    Justices’ Bench, in the court, is now fitted with computer displays and audio visual equipment (AVE) that enables the judge to view exhibits and documents, control court proceedings and make research on citations. These features are also available on the desks for the court registrar and lawyers for effective synchronisation.

    The introduction of these technologies enable the courtroom to be connected to a unified system that has a central repository for all audio/video recordings proceedings and associated linked notes. The court record includes the transcript, audio or audio and video recordings of any hearings, appearances and courtroom proceedings.

    A software for digital court reporting called: FTR Reporter, has also been installed to allow for real-time transcription and transmission of court proceedings.

    It was learnt that the software works by capturing, annotating, playing back and managing the record of court proceedings. It can record and manage up to four-channel audio. It can also facilitate electronic court reporting through linked note-taking as well as review and playback of pre-recorded coA mobile podium has been installed. It is mounted on a swivel base to enable the presenter face the judges or the barristers as may be required. The podium contains a touch-screen monitor for viewing and make-up of evidence sources including the document camera and various other input

    There are also USB and SD Card connections for displaying media from these external devices. There is a remote control that can be operated by the presenter. The podium also houses electronic components that gather and disseminate the media throughout the courtroom.

    Also installed is a device called: the document camera, with the capacity to display exhibits, which can be viewed by judges, registrars and lawyers. The device instantaneously converts a paper document or physical exhibit to an electronic image, with the ability to enlarge and reduce the image as needed.

    The transformation of the court is not limited to its interior offerings as could be seen from the alluring landscape and fittings within the court’s premises.

    A first-time visitor to the Supreme Court complex is welcomed by well-paved walkways, gardening with luscious lawns, fitted with several watering pipes and sprinkling taps, which keep the lawns, shrubs and trees evergreen even during dry seasons.

    The court, during Saleh’s time, also witnessed massive infrastructure upgrade. The roofing was replaced, the vast external white-tile walls were craftily cleaned up with chemical and machines, while the internal wall was re-painted.

    So many offices within the complex have either been rehabilitated or reconstructed; with state of art fittings, furniture, gadgets, computers, windows and bullet proof doors, among others have been installed.

    These offices so upgraded include Internal Audit, Account, IT offices, and Litigation department/rooms. This is just as the main entrance to the complex has been re-tooled with sensory doors.

    A marble-tiled Justices ‘retiring room containing dining, rest rooms and relaxing furnishings have been constructed adjacent to a court room in the complex to provide comfort for the Justices, especially after court sessions.

    The retiring room is also necessary during a stand down of an appeal for the Justices in the panel hearing the appeal to consult with one another before taking decision. Attached to this retiring room is a library for easy research/reference by the Justices in case lawyers appearing before the panels make ambiguous and frivolous submissions.

    Besides, there is a library (physical or analogue) and a virtual library for ease of researches by the Justices that were also created recently, all in addition to the old Justices’ library.

    The court’s Registry has streamlined and improved the archival and retrieval process of case files.  This is to reduce incidents of loss and/or misplacement of case files and its incendiary effects as witnessed sometimes in the past.

    The court’s security architecture has been effectively upgraded to enable it cope with security realities.

    Many hope Saleh will replicate this feat as he settles in office as the Executive Secretary of the NJC.

  • The unending executive, legislature rift over budget

    The unending executive, legislature rift over budget

    Power, Works and Housing Minister Babatunde Fashola (SAN) said nothing new when he accused the National Assembly of altering his ministry’s budget. Acting President Yemi Osinbajo earlier spoke in the same vein when he signed the 2017 Appropriation Bill. But, the lawmakers insist that they broke no law. How far can they go while working on the Appropriation Bill? Did they act within their powers when they hiked the budget from N7.28 trillion to N7.44 trillion? ROBERT EGBE writes.

    It has become a yearly feud. Since the return to democracy in 1999, the executive and legislature have been quarrelling over the passage of the budget. The quarrel always borders on what the executive calls the legislature’s illegal insertion into or modification of the budget. The case was not different this year. While signing the Appropriation Bill on June 12, Acting President Yemi Osinbajo strirred the hornets’ rest once again. The legislature, he said, tinkered with the budget despite not having such powers.

    Taking a cue from Prof Osinbajo, Power, Works and Housing Minister Babatunde Fashola, lashed out at the lawmakers for inserting “illegal projects”into the budget. To him, some of the projects, including 100 new roads, neither belong to the Federal Government, nor are they priority projects.

    “The roads are not federal roads and some of them do not have designs. How do we award roads that were not designed, irrespective of the power you have? It is unconstitutional for the National Assembly to legislate on state roads,” he said.

    Fashola said the funds for the projects were taken off the votes for expressways, bridges and power projects, among others. ”What I have in my budget now is primary healthcare centres, boreholes,”he said.

    He argued that each level of government, federal, state and local, has its responsibilities adding that the Federal Government should be building federal roads, not state roads.

    “A Federal legislator’s constituency project,” he added, “must be a Federal matter, otherwise the lawmakers would encroach on the territory of the state legislator.”

    “I am not saying that the legislature cannot contribute to the budget, but I hold the view that it cannot increase the budget because the lawmakers do not collect the revenue with which to run or implement the budget,” he said.

    Prof Osinbajo spoke in the same vein last June 12, saying: “The first is about who can do what. When you present a budget to the National Assembly, it is presented as a bill, an appropriation bill. And secondly, do not introduce entirely new projects and all of that or modify projects. This is something that we experienced last year and this year again. It now leaves the question about who is supposed to do what.”

     

    Lawmakers’ argument

    The lawmakers, however, have asserted their right to alter bills sent to them. They rejected the executive’s argument that their power to contribute to the budget excludes the right to include new projects, or modify existing ones.

    At plenary in both chambers last June 16, Senate President Bukola Saraki and Speaker Yakubu Dogara said the lawmakers did not overreach themselves by jacking up the budget.

    Dogara said the lawmakers have “absolute constitutional powers” to make changes to the budget. He admonished the Acting President to seek a judicial interpretation if he sees any ambiguities.

    In separate statements, last Friday, the Senate and House of Representatives responded to Fashola’s comments and justified their input into the budget.

    The minister, they said, misrepresented what they did, adding that their actions, apart from being lawful, were also done “to achieve equity”.

    They explained that the National Assembly had powers in Sections, 4, 59, 80 and 81 of the 1999 Constitution (Amended) to amend the budget estimates submitted by the executive.

    The Senate, through its spokesperson, Sabi Abdullahi, said it ensured that all sections of the country had representation in the national budget as guaranteed by the Constitution.

    Similarly, the lower legislative chamber, through its spokesperson Abdulrazak Namdas, explained that it reduced the budgetary allocations of some projects for the sake of prudence.

    Namdas said the decision to redistribute the projects proposed by the ministry was in order to ensure even spread of projects across geo-political zones, which the proposal of the executive failed to do

    “The national assembly had to intervene to fund some other critical roads that were totally neglected in the executive budget proposal. Example is the Abuja- Kaduna – Zaria – Kano Road that had zero allocation from the president’s proposal and no contract even in spite of due process certification. N5 billion was provided in the 2016 budget. It was not utilised.

    “In 2017 budget, the national assembly again provided N3 billion for this very critical road that connects many states and where incidents of kidnapping are rife because of bad roads, as we believe that all parts of Nigeria deserve attention or would the minister also claim that this road has no design?

    “On the Lagos-Ibadan Expressway, leadership meetings of both the executive and legislature were held where it was clarified that alternative funding exists for the road through Private Public Partnership arrangement and the concessionaires had enough money to fund the project.

    “That informed the decision to move some funds to other areas of need and the minister of power, works and housing is fully aware of this but chose to ignore it. Why spend government money if there is a clear existing funding framework in place and so many ongoing road projects are unfunded?”

     

    What the Constitution says

    Several sections, including 80, 81, 82 and 83 of the 1999 Constitution, govern the roles of the Executive and the Legislature in making an Appropriation Act.

    Section 80, for instance, prevents the Executive from withdrawing or spending from any public fund or Consolidated Revenue Fund of the Federation, unless with the authorisation and in the manner prescribed by the National Assembly.

    Section 81(1) authorises only the President to present an appropriation bill before the National Assembly.

     

    Section 81(4) states:

    “If in respect of any financial year it is found that:

    (a) the amount appropriated by the Appropriation Act for any purpose is insufficient; or

     

    (b) a need has arisen for expenditure for a purpose for which no amount has been appropriated by the Act, a supplementary estimate showing the sums required, shall be laid before each House of the National Assembly and the heads of any such expenditure shall be included in a Supplementary Appropriation Bill.

     

    ‘National Assembly can’t appropriate for state, local govt projects’

     

    Presidential Advisory Committee Against Corruption (PACAC) Chairman, Professor Itse Sagay, Abiodun Owonikoko SAN, Special Assistant to the President on Prosecutions, Chief Okoi Obono-Obla and Lagos lawyer, Shina Fashugba, believe the National Assembly cannot tamper with an appropriation bill at will.

    Sagay said when a budget bill is presented to the National Assembly or state House of Assembly its duty is merely “to approve or disapprove”.

    He said:“What we are now having is a National Assembly that is considering itself as co-executive. So, as the executive is proposing and laying down the expenditure they need, the legislature/co-executive is also proposing and then diverting funds for projects to their own proposals, which is totally an abuse of power. They are not supposed to be proposing things to be done.”

    Owonikoko argued that appropriation by the National Assembly in execution of state and local government functions is unconstitutional and defeats the separation of powers among the three tiers of government.

    He said: “It also undermines the revenue allocation formula, governing allocation of revenue accruing into the federation account under Revenue Mobilisation Allocation and Fiscal Commission (RMFAC) Act.

    “It is an indirect way of adjusting revenue apportioned to the federal executive and appropriating it to the use of state and local governments arbitrarily.

    “It is further objectionable as arbitrary and inequitable to states and local governments short-changed thereby.”

    He asked: “Can the Minister of Finance release funding for state and local government projects simply because it was appropriated by National Assembly?”

    Owonikoko urged the lawmakers not to confuse the power to prescribe formula for revenue allocation from the federation account with power of appropriation.

    He said: “For the former, it’s the remit of RMFAC, leaving the National Assembly with the enactment of the formula into law. Once so enacted it stays inviolate until reviewed by RAMFAC. National Assembly cannot anticipate or usurp that power.

    “It is a violation of the constitutional appropriation powers of the National Assembly.

    “It’s also a violation of the budgetary and expenditure prioritisation powers of state and local government.”

    He urged the Attorney-General of the Federation (AGF) to seek judicial resolutions of the issues “thrown up by this confounding overreach of power of the purse by the National Assembly.

    “It’s a matter that could be easily placed within the original jurisdiction of the Supreme Court under the Supreme Court Act (as amended) to adjudicate with some deliberate despatch.”

    Obono-Obla said the lawmakers have “no modicum or shred of power” to include projects or appropriate money for projects not included in the appropriation bill by the executive.

    “Conversely,” he argued, “the National Assembly cannot remove an item the executive has allocated to one ministry to another ministry or agency.

    “Clearly the responsibility for the preparation of budget estimate or the appropriation bill lies squarely or wholly on the executive branch of government.

    “The National Assembly, principally, is empowered by Section 4(2) and (3) of the Constitution to make laws for the peace, order and good government of the federation with respect to any matter in the exclusive legislative list set out in part 1 of the second schedule to the Constitution to the exclusion of the state Houses of Assembly.

    “On the other hand, the executive branch of government is vested by Section 5 subsections 1 (a) and (b) of the Constitution of the Federal Republic of Nigeria to the execution and maintenance of the Constitution and all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws.”

    Obono-Obla added: “It goes without saying that the National Assembly has no power and therefore, acted ultra vires its constitutional powers when it purported to include or insert in the Appropriations Act new projects the executive did not include in the budget estimates or appropriations bill laid before it.”

    Fashugba expressed similar sentiments, saying: “Unilateral insertion of non-federal projects by the law makers is not only wrongful and extra-legal, it has done violence to the yearning and expectation of Nigerians.”

     

    A contrary view

     

    But Chief Mike Ozekhome (SAN) does not see anything unlawful in it. To him, it is lawful for the National Assembly to increase or decrease the amount allocated to a project or even cancel such project.

    In an article titled: “Powers, limits, extent of appropriation in budget matters by the National Assembly vis-a-vis the role of the president”, Ozekhome explained the roles of the Executive and Legislature in Sections 59, 80, 81 of the Constitution.

    He stated that although the budget bill, must originate from the Executive and not the Legislature, it is the lawmakers that have the last say, as to whether or not funds should be allocated to a particular project, or whether such estimates are sufficient or not.

    He added: “At the time appropriations are being made by the Legislature, the rough estimates may need adjustments or re-adjustments, where it is discovered that the initial estimates by the Executive, regarding approval of funds is realistically inadequate.

    “Where, for instance, the National Assembly has cause to believe that a particular estimate falls short of what is required in the budget, or that a particular head has been over-bloated by estimates, it may, suo motu, increase or decrease such amount, as initially proposed by the president. It may even altogether cancel and refuse to allocate any fund to such if it believes that such project is a white elephant or is not of priority.

    “Where any of the scenarios painted above occurs, the president is helpless about it. Even  where  the  president believes  that  the National Assembly has  hurt him by  failing to  provide  funds for  a particular  project dear to his heart, he has  no  constitutional  power to unilaterally draw  funds  from  the Consolidated Revenue Fund  to  finance the said project without NASS approval.”

    The National Assembly, Ozekhome said, “is not a mere robotic, rubber-stamping, but a vibrant, interrogative legislature”.

    “Since the Legislature has the capacity to amend, or even wholly reject budget proposals of the Executive and substitute one of its own, it means that it is only the NASS that can actually make such appropriation.

    “Any plan or estimates tabled by the Executive, but without such appropriation, will be tantamount to misappropriation in the eye of the law,”he said.

     

    Where Judicial pendulum may swing

    Osinbajo, while signing the budget, reportedly observed that the National Assembly also altered some items in last year’s budget.

    The Nation reported that the Executive was considering judicial interpretation of the matter. Owonikoko and Fashugba urged the Executive to do so.

    However, judicial pronouncement on part of the issue already exists

    On March 16, last year, Justice Gabriel Kolawole interpreted Sections 81 of the Constitution in a suit filed by Lagos lawyer Femi Falana.

    The plaintiff had asked the court to determine four questions, one of which was whether;

    “By Section 81 of the Constitution, the National Assembly can increase or review upward any aspect of the estimates of the revenues and expenditure of the Federation for the next financial year prepared and laid before it by the Executive.”

    Falana also sought an order of perpetual injunction restraining the parliament from increasing budget estimates laid before it by the Executive.

    Denying Falana’s request, Justice Kolawole said the essence of the suit was the claim that NASS, under the guise of exercising oversight functions, usurped executive powers.

    The judge ruled that the whole purpose of Sections 81, 85, 88 and 89 is to ensure that Executive and agencies under its control are subjected to some form of oversight by Parliament.

    He said since the National Assembly is constitutionally empowered to appropriate funds to be expended for the running of government, it, therefore, has powers of oversight to ensure those appropriated funds are properly administered.

    Justice Kolawole said: “The National Assemby was not created by drafters of the Constitution and imbued with the powers to receive ‘budget estimates’, which the first defendant is constitutionally empowered to prepare and lay before it, as a rubber-stamp parliament.

    “The whole essence of the budget estimates, being required to be laid before Parliament, is to enable it, being the Assembly of the representatives of the people, to debate the said budget proposals and to make its own well informed legislative inputs into it.”

    The case, with number FHC/ABJ/CS/259/2014, was not appealed by any of the parties.

  • Appeal Court President to youths: better days are ahead

    Appeal Court President to youths: better days are ahead

    The President of the Court of Appeal (PCA), Justice Zainab Bulkachuwa, has advised youths to desist from indecent conduct and learn to be morally upright in their dealings.

    She urged the youths not to despair because of the prevailing economic challenges because better days are ahead.

    Justice Bulkachuwa spoke in Abuja while receiving some members of the Northern Youths Council (NYC), who were in her office to honour her with the Sir Ahmadu Bello Sardauna Platinum Excellence Leadership Award.

    The PCA, while extolling the virtues of the late Premier of Northern Nigeria, said Sir Ahmadu Bello was a true statesman, who made education a top priority during his time.

    Bulkachuwa said despite his busy schedule, Sir Ahmadu Bello visited schools on inspection tour to have first-hand information on their academic performance, during which he would sometimes, personally, teach the pupils.

    Highpoint of the Northern Youth Council’s visit was the investiture on Justice Zainab Adamu Bulkachuwa to its Hall of Fame as life member, for which she was presented with a plaque and a gold medal.

    Making the presentation, NYC’s Vice President, Comrade Faruk Mohammed said, to Nigerian youths, Justice Bulkachuwa was not just a mentor, but a personality blessed with integrity and unique hallmark which define her exceptional leadership role towards nation building.

    Mohammed said: “At a time when Nigerian youths are facing near relegation from the nation’s scheme of affairs, Justice Bulkachuwa has continued to exhibit friendly disposition and humane care to whoever comes her way.”

    He said the NYC intends to donate relief materials to the internally displaced peoples’ camp in North East Nigeria, so as to bring back hope to the people of the region, who have been devastated and impoverished by the recent spate of violence perpetrated by the deadly Boko Haram group.

    Mohammed said the Sir Ahmadu Bello Platinum Leadership Award was conceived by the NYC to honour worthy Nigerians, who have positively impacted on the lives of the citizenry and in a way, encourage them to do more.

    The Presiding Justice (PJ) of the Abuja division of the Court of Appeal, Justice Abdu Aboki, who also witnessed the event, commended members of the NYC for choosing Justice Bulkachuwa for the award.

  • Enhancing service delivery though NBA practice sections

    Enhancing service delivery though NBA practice sections

    The Nigerian Bar Association (NBA) delivers service to its members through branches, sections and forums. In this piece, Abuja-based lawyer STANLEY IBE focuses on how service through sections can be enhanced.

    The Nigerian Bar Association (NBA) Section on Business Law (SBL), Section on Legal Practice (SLP) and Section on Public Interest and Development Law (SPIDEL) cater for the interests of members in their respective practice areas.

    These sections also offer opportunities for members to interrogate topical issues and engage with likeminded practitioners.

    Since their founding nearly 15 years ago, they have raised the bar in advancing the course of specialisation within the NBA. However, they could do more in terms of inclusion, outreach and communication, and evaluation.

    If I can start with the point about inclusion, it seems to me that our practice sections need to become stronger platforms for engagement at branch levels.

    The sections ought to work better with branches to provide information to new and existing members on practice areas and the imperatives of networking with colleagues in similar practice areas.

    It is clear to me that this is happening at different levels in different branches and maybe not at all in others but I do feel like it should be prioritised. Engaging in this way provides the scope and space for building organic practice sections that develop from the bottom up and potentially guarantees sustainability. There is significant hard work required to make this happen and it should probably begin with outreach and communication.

    A review of the relevant sections of the bar website www.nigerianbar.org.ng provides some introduction to what sections are designed to achieve but I must say that only the page of the SLP offers information about the founding, objectives and eligibility for membership. The pages of the two other sections simply include a downloadable registration form that is in fact no longer available. I suspect it would help to provide more information on the website and upload forms that colleagues could actually download and use. To the extent possible, it might also be helpful to include contact details of representatives of these sections who could serve as contacts for questions and concerns.

    Beyond the website, leaders of the sections and/or the bar secretariat probably need to reach out to lawyers through multiple platforms, including text messaging and emails, about the existence of these sections and the opportunities they offer.

    As I already indicated, there is very little information about the sections on the NBA website so it is difficult to assess the proportion of lawyers that are actively involved in at least one of these three sections. Some data is therefore required to get a better sense of the numbers and facts behind them. For example, we should find out why some lawyers stay away from the sections. It might be one of several reasons, including ignorance of the existence of the sections (which goes back to the question of outreach and communication), dissatisfaction with the performance of the section (which should elicit reflections on performance review) or apathy (which could be a function of the multiplicity of responsibilities within the same association). Whatever the reasons, we should definitely find out. One way to do this is to conduct a survey. I would hope that the leadership of these sections and the bar itself will consider undertaking this exercise to get clarity on this and other issues, including perhaps the proportion of young lawyers actively involved in the sections – not just as members but also as leaders. This is important to the extent that we expect to see them take forward this idea or improve on it.

    Talking about improvement, the sections need to demonstrate continuous improvement to retain the interest of members. Goal setting and evaluation are critical components of any performance improvement exercise. Since the year is still young, I will be interested to know what goals the sections have set for themselves and how they hope to achieve them. I am certain that there are others like me. It is therefore imperative for leaders of the sections to think carefully about articulating and communicating their goals to their publics in a way that makes it possible both to interrogate and to engage with them. Closely related to this question of visioning and communication is the crucial idea of evaluation. How well or badly these sections perform ought to be the subject of public discussion in the profession. I do not know that this is happening at the moment and I think it should.

    The bar association plays an important role in promoting the interest of its members in addition to advancing the course of justice across the country. The sections are essential to promoting learning, scholarship and interaction among members. Although they have been around for some time and probably done some interesting things, there are several new territories to conquer and they need to be in the vanguard of taking these territories.

  • Way out of corruption, by group

    A group, the Rule of Law and Empowerment Initiative (RLEI), has suggested measures that will enhance the effectiveness of the court process and curb judicial corruption.

    RLEI, also known as Partners West Africa – Nigeria (PWA-N), said judicial accountability could only be enhanced where judges’ punctuality and court attendance were monitored; technologies adopted to record court proceedings; constant exposure of judges/ magistrates/ khadis to case management techniques, among others.

    These recommendations are contained in a report of the group’s eight-month long monitoring and observation of courts in the Federal Capital Territory (FCT), Abuja and Kano State, under a programme tagged: The Judicial Integrity Project.

    Speaking at the report’s presentation in Abuja on May 25 this year, the group’s Programme Manager, Barbara Maigari said the project aimed at promoting accountability in the judicial sector.

    She said: “The major objective of this project is to increase civil society’s access to government’s information as a tool to fight judicial corruption, increase access to justice and expand citizens’ engagement with the government.

    “We realise that this can only be achieved by increasing the capacity of civil society to access information on judicial process,” Maigari said.

    She said, as ways of addressing the challenges identified during the court observation and monitoring exercise, her group has come up with some useful recommendations.

    One of such recommendations, Maigari said, is that requiring the National Judicial Council (NJI) or Judicial Service Commission of the state concerned to devise an objective means of monitoring the punctuality and attendance rates of all judges and magistrates.

    She said the recommendation was informed by the realisation that most judges and magistrates do not always attend court or resume late, practice that contributes to delay in justice dispensation.

    The group, while faulting the continued recording of court proceedings by hand despite advancement in information and communication technologies, urged immediate investment in ICTs to aid court process.

    It urged the NJC to institutionlise case management training for judges and magistrates to enable them attend to more cases on their cause lists rather than wasting time on few case.

    While noting the parties’ absence at proceedings also delay the hearing of cases in court, Partners West Africa – Nigeria suggested the introduction of “significant monetary costs against erring parties for deterrence purposes.”

    Retired Justice of the Supreme Court and Chair, Board of RLEI, Justice Olufunlola Adekeye said the various reform measures initiated and implemented in the judicial sector since 1999 should be sustained.

    She however noted that the sustainability and success of such reforms require holistic execution, with the involvement of “all relevant stakeholders, an approach which you all have adopted in Access to Nigeria Project.”

    Justice Adekeye said although the nation has effectively restored democracy, there was need for adequate funding of the security and justice sectors.

    “The contemporary forms of violence such as insurgency, armed banditry and cybercrimes are ongoing challenges to be tackled by security and intelligence agencies.

    “Again, the process of civil and criminal justice administration demands urgent implementable actions.

    “Judges, magistrates/khadis are insufficient compared with the workload of cases and administrative responsibilities.

    “Our courts still write with long hand, therefore delaying the process of justice. Delays from the point of arrest to delivery of judgment are contributory factors to challenges still faced in the justice sector,” Justice Adekeye said.