The Nation Newspaper

Category: Law

  • Why arbitration clause matters in commercial transactions

    Why arbitration clause matters in commercial transactions

    Arbitration is “a method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding” (as defined by Black’s Law Dictionary 119,9th ed. 2009). It is a form of alternative dispute resolution (ADR), a technique for the resolution of disputes outside the courts. Arbitration has become very important in the business world and certainly a common feature in international and domestic commercial transactions. It is therefore not unusual to find an arbitration clause in most commercial agreements as a key component of how disputes are to be resolved.

    Purpose: The purpose of an arbitration clause was well enunciated in the case of SINO-AFRIC AGRICULTURE & IND COMPANY LTD V. MINISTRY OF FINANCE INCORPORATION & ANOR (2013) LPELR-22370 (CA) where the learned judge stated that:

    “Arbitration Clause is intended to save both parties the time and expense of a lawsuit. Other notable reasons are that it may lessen the risk of punitive damages awards, may decrease exposure to class actions or other forms of aggregate litigation, may result in more accurate outcomes because of arbitrator expertise and incentives, may better protect confidential information from disclosure, enhance the ability of the parties to have their disputes resolved using trade rules and it may enable the parties to better preserve their relationship. It may also provide a neutral forum”. The judge went further to state the effect of including an arbitration clause in an agreement thus: “If the contract contains an arbitration clause stating that either party to the contract may choose arbitration instead of litigation, it may not matter that the word “may” was used to try and make arbitration optional instead of mandatory. It is established that in approaching the question of construction it was necessary to inquire into the purpose of the arbitration clause. In choosing arbitration the parties showed an intention to have their disputes decided by an arbitrator which they had chosen.” Per ORJI-ABADUA, J.C.A. (Pp. 32-33, paras. E-C).

     

    Key features of arbitration clauses

     

    For parties to have an effective means of resolving their disputes in an arbitration proceeding, the arbitration clause of the contract is very important. In drafting the clause, careful thought needs to be given to its contents and the following are some of the things to consider.

     

    How to commence the arbitration

     

    Arbitration clause should specify how the arbitration is to be commenced, notice to be given and who and how such is to be given.

     

    Seat of arbitration

     

    The seat is the place or venue the arbitration is to be held. The arbitration clause should state the seat. The seat chosen will determine the applicable procedural rule that will govern the arbitration. The procedural rule of the country in which the seat is situated will apply. It is therefore important to give careful thought to this before making a choice. The attitude and support provided by the domestic courts need to be considered too. Also, important is the enforceability of an arbitral award is the seat chosen. For enforcement purpose, it is important that the country is a party to the New York Convention on enforcement of arbitral awards, before that convention can apply.

     

    Number and method of appointing the arbitrators

     

    It is important to specify the number and state the method of appointing the arbitrators. Most arbitral tribunals have one or three arbitrators, though there is nothing stating different number of members cannot be appointed. Oftentimes, the value and complexity of the contract determine the number of arbitrators to specify. The clause should also specify method of replacement, which may be required due to death, resignation, removal, and illness of an arbitrator or for any other compelling reason.

     

    Language of arbitration

     

    It is always good practice to specify the language of the arbitration. This will also help in choice of arbitrators that are comfortable with that language and help in avoiding cost of translation.

     

    Type of Arbitration

     

    The clause will need to make clear whether it is an institutional arbitration or an adhoc one. Institutional arbitrations are administered and supervised by recognised arbitral institution such as the ICC.

     

    Governing law

     

    The law governing the subject of the dispute, sometimes termed the substantive law has to be specified. The parties should decide on the law they wish to apply to any dispute that arises and the tribunal will apply that law to the merits of the dispute. This may not necessarily be stated as part of the arbitration clause, but it is helpful to still state it somewhere in the contract as it helps the arbitrators to determine which law applies to the subject-matter of the dispute.

     

    Reasons  why arbitration is

    preferred in  commercial 

    transaction

     

    Enforceability

     

    The ability to resolve disputes in a neutral forum and the enforceability of binding decisions are often cited as the main advantage of arbitration. The principal instrument governing the enforcement of commercial international arbitration agreement awards is the “United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958”(New York Convention) which has been ratified by more than 140 countries, including most countries involved in significant international trade and economic transactions. For example, United States of America, United Kingdom, Canada are all signatories to the New York Convention (with notable exceptions like Iraq, which, not having ratified the New York Convention, cannot be assumed to give effect to arbitration decisions rendered in other countries). The convention requires the states that have ratified it to recognise and enforce international arbitration agreement and foreign arbitral awards issued in other contracting states. As a practical matter, what that means is that an international award originating in a country that is a party to the New York Convention may be enforced in any other country that is also a signatory as if such were actually rendered by the domestic courts in that second country. Nigeria is a signatory to the New York convention. Local legislations have also given confidence to the use of arbitration to settle disputes instead of loading our ever busy courts with disputes that can be resolved alternatively.

     

    Fit for purpose

     

    Resolution of disputes in the ordinary courts is subject to the rules of the court and is administered by judges appointed by the state. Litigants have little input into how those judges are appointed, the rules governing their procedure, the venue of the trial, those who can attend the proceedings, and other things involved in the administration of justice. On the other hand, the flexibility of arbitration, which allows parties to make substantial input into arbitration proceeding, makes it a more attractive proposition, especially in commercial transactions. Parties appoint their arbitrators, determine the rules, decide on the fees of the arbitrators and do many more to make it fit for purpose. It is usually simpler, more efficient, and more flexible for scheduling than litigation.

     

    Avoids hostility

     

    Because the parties in an arbitration are usually encouraged to participate fully and sometimes even to help structure the resolution, they are often more likely to work together peaceably rather than escalate their anger and hostility towards one another, during and after the arbitration, as is often the case in litigation.

     

    Professional

     

    Parties to arbitration are at liberty to appoint arbitrators who are experts and professionals in the subject matter of the dispute. This is very important in any business environment as those appointed understand the issues at stake better and are at a better position to reach a quick and more acceptable decision to the satisfaction of parties. Arbitration is not hamstrung by strict adherence to the sometimes time consuming and confusing rules of evidence and procedures.

     

    Simplified rules of evidence

    and procedure

     

    The often-convoluted rules of evidence and procedure do not apply in arbitration proceedings, making them less stilted and more easily adapted to the needs of those involved. Importantly, arbitration dispenses with the procedure called discovery that involves taking and answering interrogatories, depositions, and requests to produce documents – often derided as a delaying and game-playing tactic of litigation. In arbitrations, most matters, such as who will be called as a witness and what documents must be produced, are handled with a simple phone call.

     

    Faster than litigation

     

    Arbitration is faster. This is because decisions are reached quicker without any preliminary objection or unnecessary appeal. There have been instances in the regular courts where preliminary matters alone can take up years before the substantive matter is heard.

     

    Confidential

     

    Arbitration proceedings are generally held in private. This is important in most corporate and business cultures.  And parties sometimes agree to keep the proceedings and terms of the final resolution confidential. Both of these safeguards can be a boom if the subject matter of the dispute might cause some embarrassment or reveal private information, such as a company’s client list or trade secret.

     

    Conclusion

     

    An arbitration based on a well thought out arbitration clause is more likely to result in timely justice than court litigation. In the mind of business people, most legal disputes are cost centres and the sooner they end the better. Further, as the public justice system of large metropolitan areas continue to be cash strapped and forced to reduce employee and services thereby lengthening the time it takes to get to trial, more businesses will opt out for private justice system of arbitration and mediation.

    Business is all about managing towards an objective, i.e. profitability, and that includes reducing uncertainty caused by delays. A business wants disputes resolved reasonably quickly and wishes the resolution of disputes to cause as little disruption to its core business and employees as possible. Failure to incorporate a business-oriented arbitration clause leaves too many decisions up to parties mired in the midst of dispute. It is better to create the framework for dispute resolution when the parties are at the beginning of a contract. A good arbitration clause can foster timely justice.

     

     

     

     

     

  • Nigeria’s federalism, underdeveloping states

    The hullaballoo about ministerial nominees and the pretences of a thorough screening by the Senate is a fresh confirmation that our country is excessively skewed in favour of the government at the centre to the detriment of federating units. Has anyone, including the heads of government of the marginalised units of the federation, that is, the states, bothered to ask, why the excitement and concentration of national consciousness, on the installation of ministers of government at the centre; and the insignificant, or near, I don’t care attitude, at similar activities at  the unit levels?

    In examining the challenges bedevilling our national development, shouldn’t it bother Nigerians, that whereas, Sir Ahmadu Bello, the late Sardauna of Sokoto, preferred to remain as the premier of the Northern Region, while he raised up Sir Tafewa Balewa, to proceed to the centre in Lagos, in 1958, to be the head of government of the federation; many former heads of our present federating units (former state Governors), presently see being appointed by the head of the Federal Government into his cabinet, as a promotion, in 2015? If the central government can singularly outweigh the federating units, assembled together, both politically (concentration of state powers) and economically (allocation of economic rights and distribution of resources, from the federation account), is it farfetched to understand the sources of the excitement, over the nominations, and the consequent disequilibrium in our federal system of government?

    With about 28 governors, out of 36, desperately seeking the so-called bailout funds, from the Federal Government, to pay accumulated monthly salaries of workers in their states; and with several of them unable to pay off the arrears, despite the billions borrowed; are we now in an era where a federal ministry, is of more economic and political value, than many of the states in the country? And if many of the states are in this state of near hopelessness, is it not a joke, for us to pretend that the third-tier unit of government, the local government administration, is a viable unit in our misguided federation? With many states threatening to retrench workers, and with the Nigerian Labour Congress digging in for a show-down, is our country as is, not approaching a shut down?

    Perhaps, President Muhammadu Buhari (PMB), whose government was elected on the mantra of change from our previous ways, particularly the unviable old ways of doing things, may take up the challenge to restructure the federation. One important thing he must quickly do, is to return the federating units, that is the states, to work, as no amount of bailout, will rescue them, from the imminent economic doldrums; unless miraculously, the world price for crude oil ricochets up again, for another round of bazaar. As this column has severally argued, the exclusive legislative list must be tinkered with, to give the states of the federation, more economic opportunities. While ultimately a constitutional amendment is needed to redefine the economic and political relationship between the centre and the states, PMB and his government can insist on a transparent economic reforms, by any state, seeking any economic assistance from the centre.

    Specifically, before giving any extra-budgetary economic assistance to any of the states, the central authority can insist on a fiscal and budgetary reform, by such interested state, while pushing for the ultimate constitutional amendment. Indeed, any state without an operating fiscal responsibility and public procurement law, should not be given any form of financial assistance by the federal government. Furthermore, any state that is unwilling to submit itself to a transparent assessment, with regards to its own transparency processes, by a bipartisan committee, should be allowed to stew in its own mess.

    But of course, before the federal government can muster the moral courage, to embark on such an economic emergency plans, it must without equivocation manifest itself as a nationalist government, without any scintilla of sectional or partisan preferences, at least as long as the national economic emergency lasts. To ignore the immediate institution of a national economic emergency, by the governments at all levels, is to play the ostrich. Thankfully many of the ministerial nominees, weather the politicians or the technocrats, can reasonably be said, to have the requisite experience, to contribute to national development. Many of the ex-governors, like Babatunde Fashola, Kayode Fayemi, Chibuike Amaechi, Ogbonnaya Onu, and Chris Ngige should have the courage to speak truth to power, and work for an economically viable and more balanced federation.

    Among the pack of technocrats, Geoffrey Onyeama, a lawyer and former Deputy Director at the World Intellectual Property Organisation (WIPO), should be a guide in international economic relations. Mr Onyeama who came second during the selection of the Director General of WIPO in 2014, and is representing Enugu state, in the PMB’s ministerial team; should be in a position to help the Nigerian government, navigate the international relations landmines that many bilateral and multilateral agreements have become, for third world countries. With a high number of very distinguished lawyers as ministerial nominees, the Buhari government, would not lack in quality guide and legal advice, on how to get the national, state and local economies, activated; despite the stifling constitutional inhibitions against economic activities by the federating units, in favour of the central government.

    By and large, PMB’S ministerial team must be guided by the express provisions of section 14(3) of the 1999 Constitution, to wit: “the composition of the federal government of the federation or any of its agencies and the conduct of its affairs shall be carried out in such manner as to reflect the federal character of Nigeria and the need to promote national unity ….”

     

     

  • ‘How we arrived at N352.3m judgment debt’

    An Assistant Director in the Litigation Department of the Lagos State judiciary, Mr. Abdussalam Oluwole, has told a Lagos State High Court sitting in Ikeja, how his department computed the sum of N352.5m allegedly paid to a Lagos-based lawyer Chief Ladi Rotimi-Williams, SAN, as a judgment debt.

    The dispute over the sum arose following a contested January 23, 2001, decision of the High Court of Lagos State, Ikeja Division, delivering judgment in favour of TSA Industries against First Bank of Nigeria Plc.

    Testifying before Justice A. Okuwobi in suit No: LD/ 147/2009, Abdussalam, who was summoned by the court to shed light on the matter, said the costs were awarded on different rates and that the calculations were cross-checked by him and his team.

    Led in evidence by defence counsel, Mr. Adeyinka Olumide-Fusika, he said: “I did the calculation with my team and the total judgment debts plus interest include, interest (1-3), special damages, cost awarded and actual refunds.”

    Abdussalam added that the calculation was based on the original judgment documents or a Certified True Copy.

    Under cross-examination by claimants’ counsel, Mr. Chris Eneje, the witness maintained that he based the computation of the interests from the month of June of the same year.

    After listening to the submissions of both counsels, Justice Okuwobi adjourned the matter till November 12, 2015 for further hearing.

    In 1998, T.S.A. Industries filed a suit before an Ikeja High Court, accusing First Bank of Nigeria Plc. of negligence and allowing fraudulent activities to be carried out on its account domiciled with the bank.

    Pursuant to subsequent judgments in the company’s favour, the first generation bank through its head, legal services, Mr. Olaniyi Kukoyi, on March 11, 2008, wrote a petition against Justice Funmilayo Atilade of the Lagos State judiciary, to the chairman, National Judicial Council, NJC, Abuja, alleging judgment racketeering and an attempt to extort a non-existing judgment debt.

    Chief Ladi Rotimi -Williams, who was a party in the matter, reacted to the petition by filing suit no: LD/147/2009 against the bank. He was represented by Mr. Eneje in last week’s suit.

    However, in its statement of defence, First Bank alleged that in no portion of the judgment with suit no: ID/9/98 was an award made for a sum of N33.6m, but that the claimants had wrongfully included it in the judgment-debt.

    It further claimed that although the said judgment awarded interest at the rate of 1% per annum on the sum of N22.3m (ordered to be refunded by the defendant to the judgment-creditor in the said suit) from 31st December, 1996, “the claimants with intent to defraud changed the 1 % actually awarded to some other higher interest per-centrum.”

    The bank also claimed that “Although the judgment did not award any interest on the N320m ordered to be paid by the defendant to the judgment-creditor, therein as special damages for loss of profit, the claimants in enforcing for this, had with intent to defraud, accrued interest thereon, first at the rate of 6% per annum and lately at the rate of 21%.”

     

  • Lawyers express concern over NBA’s stamp, seal policy

    Lawyers express concern over NBA’s stamp, seal policy

    Some lawyers at the Federal Capital Territory (FCT) on Tuesday expressed concern on the challenges they encountered in obtaining the Nigeria Bar Association’s (NBA) stamp and seal.

    The News Agency of Nigeria (NAN) recalls that the NBA introduced the stamp and seal to be affixed on all the documents filed in courts by lawyers throughout the federation.

    The Rules of Professional Conduct for Legal Practitioners, 2007, empowers the NBA to issue the stamp and seal and ensure compliance accordingly to all lawyers called to the Nigerian Bar.

    Some of the lawyers on Tuesday expressed concerns on the challenges they were facing in obtaining the stamp and seal.

    Mr Shaka Awaliene, a legal practitioner, applauded the policy, but noted that like any new policy it had its own initial challenges.

    Awaliene, however, said these challenges had far reaching implications and might slow down the process of legal practice for a while.

    “This is a new policy and it would take some time for every lawyer to key into it and what this means is that any lawyer without the seal will not file any process in court.

    “Secondly, it has a monetary implication the national dues must be paid as well as the branch dues before the seal is paid for and obtained.

    “With the harsh economic situation private legal practitioners are facing, this may constitute a problem for them,’’ he said.

    The lawyer said that the new seal policy was one of the measures that could reduce the incidences of fake lawyers in the country.

    He said the policy would strengthen legal practice and brings about professionalism as only genuine lawyers would likely engage in legal practice.

    Awaliene also advised that the policy needed to be extended to corporate practice, particularly with the Corporate Affairs Commission as accountants and chartered secretaries.

    Another lawyer, Christie Nwaka, complained of the time it took before the seal and stamp could be issued after the requisite payments had been made.

    “When you apply for the seal it is not issued immediately, it takes a minimum of three weeks to be issued and that keeps on hold whatever process the lawyer wants to file.

    “For the new lawyers, it is also a big challenge because they are yet to get started and will need some money to satisfy the financial requirement.

    “It appears that adequate arrangements were not put in place before the commencement of the scheme,’’ she said.

    Mr. Dan Nwobodo, former NBA Publicity Secretary, Abuja branch, noted that people found it difficult to switch over to any new policy.

    “In this case, the policy is to sanitise legal practice and should be embraced by any well meaning lawyer.

    “The Rules of Professional Conduct for Legal Practitioners Section 10 (1-2) provides that a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any government; Department or ministry or any corporation, shall not sign or file a legal document unless a seal and stamp approved by the NBA is affixed on such document.

    “For the purpose of this rule, legal documents shall include, pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents,” he said.

    He said once you paid the Bar practising fees, and called to the Nigerian Bar and your name and number were verified from the Supreme Court Roll and NBA database, you would be issued the stamp and seal.

  • Wanted: People’s Attorney-General

    Wanted: People’s Attorney-General

    Who becomes the next Minister of Justice and Attorney-General of the Federation? Whoever gets the job should be prepared to hit the ground running, say lawyers. Eric Ikhilae writes

    Will the next Minister of Justice and Attorney-General of the Federation be different from his predecessors? Will he wage the war against corruption without fear or favour? How will the legal profession fare under him?

    These are some of the questions being asked by watchers as the nation waits for President Muhammadu Buhari.

    The Senate last week cleared 18 of his nominees, setting the stage for their swearing in anytime from now. More nominees may be screened and cleared this week.

    In the past, some Attorney-Generals looked the other way as laws were broken. Arbitrariness was the order of the day. Public officials and institutions equated themselves with the state. Court judgments and orders were obeyed selectively; prosecution of corrupt state officials was haphazard. At times the trial of those close to the seat of power was discontinued while politically connected convicts were pardoned.

    Impunity reached an embarrassing height under the last administration when a former Inspector-General of Police (IGP) withdrew the security aides of immediate past Speaker of the House of Representatives and refused to recognise him as such because he had defected to another party.

    Even while the issue was in court former police chief, Suleiman Abba insisted that based on his interpretation of the constitution, the Speaker could no longer be so recognised, having defected to another party.

    The then Attorney-General and Minister of Justice saw nothing wrong in the conduct of the IGP and offered no contrary opinion on the issue.

    Many are expecting a departure from the confusion of the immediate past when this government, which came to power on the strength of its promise to effect change, appoints its chief law officer.

    This is because of the power a Minister of Justice and Attorney-General of the Federation (AGF) wields, given that the society is founded on law and order.

    Section 150 (1) of the Constitution states: “There shall be an Attorney-General of the Federation, who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.”

    The Constitution specifies the skill to be possessed by an AGF in Section 150(2): “A person shall not be qualified to hold or perform the functions of the office of the Attorney-General of the Federation unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for not less than 10 years.”

    The Attorney-General, by virtue of Section 174 (1) of the Constitution, acts as the adviser to the Federal Government on legal issues, coordinates the activities of the prosecuting agencies, among others.

    Section 174 (1) states: “The Attorney-General of the Federation shall have power –

    (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;

    (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

    (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”

    Sub-section 2 of Section 174 allows the AGF to delegate its responsibilities by providing that: “The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department. “

    Unfortunately, these powers of the AGF are sometimes exercised in breach of sub-section 3 of Section 174 of the Constitution.

    The section is as follows: “ In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”

    Under the immediate past administration, some cases against public office holders and major corporate organisations were discontinued with the AGF exercising his power to enter nolle prosequi with little consideration for the public interest.

    During ex-President Olusegun Obasanjo’s administration, statutory allocations to local governments in Lagos State were illegally withheld despite the Supreme Court’s order for their release. The then AGF defended the illegal and unconstitutional action.

    Also under the late President Umaru Musa Yar’Adua, the AGF argued that the Commander-in-Chief could rule from wherever he was, even when the president had been away for months without formally informing the National Assembly, as required by the constitution. This omission prevented the Vice President from acting in his place, while the president sought medical assistance abroad.

    Observers have reasoned that in view of the present government’s pledge to break from this unenviable past, it should ensure the emergence of an AGF, who will recognise the importance of his office.

    Such an AGF would deploy his constitutionally ascribed powers to creating a society founded on law and order, where citizens’ rights are safeguarded within an arrangement that guarantees social justice and the rule of law as against the rule of man.

    They argue that the new AGF should tackle, among others, the embarrassing delay in criminal justice administration, prevail on the Executive to ensure proper funding for the Judiciary, and ensure the effective coordination of the activities of the various investigating and prosecuting agencies if the government will be successful in its anti-corruption efforts.

    Adegboruwa
    Adegboruwa

    The new AGF should be able to eliminate the current discriminatory application of the prosecutory powers of the state. Today, it is the practice that cases involving indigent defendants, without the financial power to manipulate the trial process, are promptly decided, with the convict handed hefty jail terms, while those with money are able to either scuttle the trial or agree to a plea-bargain arrangement with the state.

    Nwobike
    Nwobike

    Lawyers including Joseph Nwobike (SAN); Sebastine Hon (SAN); Mahmud Magaji (SAN); Abuja-based Abubakar Sani and rights activist, Ebun-Olu Adegboruwa, have recommended that whoever emerges as the new AGF, must hit the ground running in view of the current state of the nation’s affairs.

    They suggested areas where he must direct his/her energy, include enhancing the capacity of the judiciary to function effectively, improved training for investigators and prosecutors, among others.

    Nwobike said the new AGF  should concentrate on building the capacity of prosecutors and investigators.

    This, he added, is because the major obstacles to successful prosecution of cases, particularly those relating to economic

    Sebastine Hon
    Sebastine Hon

    crimes, include poor investigation and inadequate prosecution.

    Hon advised the in-coming AGF to watch his steps and realise that he/she is serving in a government that has zero tolerance for corruption. He also urged the new AGF to avoid the mistakes of his/her predecessors.

    “The person should also realise that the international community is now interested in how the justice ministry operates. The new AGF should not let us down by engaging in any act of corruption or stay aloof when acts of corruption are being perpetrated.

    “I expect the new Attorney-General to also initiate legislations that will improve on the state of the nation’s criminal justice system, including tampering with some provisions of the constitution. I fully subscribe to the call for the establishment of special courts to try corruption cases because of the attendant unwarranted delays being experienced in regular courts.

    “Such a specialised court will also aid specialisation among judges. Those with general knowledge of law will become specialists in this area of law if assigned to the specialised court.  They will be able to handle most delay tactics by lawyers.

    “I also expect a greater coordination in the activities of the investigating agencies. Currently, there is no synergy between the police and other investigating agencies. The in-coming AGF has the responsibility of ensuring that the activities of these agencies are centrally coordinated to allow for efficiency,” Hon said.

    Magaji advised the new AGF to be concerned about how to ensure the effectiveness of the criminal justice system to ensure that criminal cases are heard and decided on time.  He said all efforts should be made to reduce the delay currently associated with criminal trials.

    “The issue of bail should be automatic so that cases are not delayed. As soon as somebody is arraigned, he should be granted bail so that he can prepare for trial. This will eliminate the time that is wasted on arguing bail applications.

    “He/she should also ensure strict application of the newly introduced Administration of Criminal Justice Act (ACJA), which is directed at eliminating delay in the criminal trial process,” Magaji said.

    Sani urged the in-coming AGF to work to eliminate contradictions in the Economic and Financial Crimes Commission (EFCC) Act, the Independent Corrupt Practices and other related offences Commission (ICPC) Act, the National Drug Law Enforcement Agency (NDLEA) Act  and the Code of Conduct provisions of the constitution in relation to the fundamental rights provision of the constitution.

    “Specifically, with regard to the Code of Conduct provision, anybody convicted by the Code of Conduct Tribunal (CCT) could also be subjected to criminal trial in the regular court. This negates the constitutional provision against discrimination. This provisions amounts to discriminating against public officers.

    “So, this provision in the Code of Conduct Bureau and Tribunal Act, which allows further criminal trial for a public officer convicted by the CCT on the same issue, subjects such public officer to double jeopardy, which is generally unacceptable.

    “The provisions in the EFCC Act, the ICPC Act and the NDLEA Act, which empowers the agencies to prosecute anyone that refuses to respond to their queries/questions, negates the right of an accused person to remain silent. Even during trial in a criminal court, an accused cannot be compelled to testify. You have a right to remain silent,” Sani said

    Adegboruwa noted that the major task for the new AGF is to tackle the intolerable delay in the administration of criminal justice.

    He said: “The long year spent on prosecuting cases from the High Court to the Supreme Court is an embarrassment to this nation.”

    Adegboruwa added that another major task is for the AGF to prevail on the Executive to ensure that the Judiciary is well funded.

    “Funding is critical to ensuring an efficient Judiciary. The needed change in the Judiciary cannot be realised through the enactment of legislations alone. There is need for more judges, introduction of technologies to court operations, and continuous training for judges and court employees on new ways of doing things.

    “It is totally unacceptable for cases to be adjourned because of lack of electricity. It is unacceptable for you to have up to 50 cases in a court’s list for a day. This is because the number of judges is inadequate.

    “The new AGF should also look at ways of harmonising the various existing civil procedures applicable in all the states. This will make practice easier. He/she should also work to harmonise the activities of all the investigating and prosecuting agencies if he/she wishes to ensure an efficient criminal justice system,” Adegboruwa said.

     

  • Groups to expose atrocity perpetrators

    Two groups, the Attorcities  Watch (AW) and  Omidyar Network Leadership  Forum ( ONLF), have vowed to fight impunity in Africa by exposing its perpetrators.

    They signed a memorandum of Understanding ( MoU) in Abuja during the Pan African Lawyers (PALU) conference.

    AW was reprsented by its board member, Prof. Chidi Odinkalu, while Ms. Agnes Ebo’o and Stanley Ibe signed as individual grantees under the auspices of ONLF, an alumni initiative of the Draper Hills Summer Fellows Programme of the Center for Democracy, Development and the Rule of Law (CDDRL), Stanford University.

    Ebo’o and Ibe, alumni of the Draper Hills Summer Fellows Programme of the CDDRL are joint recipients of the first Collaborative Grants Initiative of the ONLF. The funded project will be implemented in close collaboration with Atrocities Watch and the two alumni grantees.

    Atrocities Watch is a non-profit, Pan African organisation founded and led by Ugandan journalist and former Chairperson of Darfur Consortium, Dismas Nkunda, who is known for his strong pursuit and desire to end mass atrocities and impunity in Africa.

    AW focuses on a number of strategic objectives including using new media and digital tracking of mass atrocities to inform continental early warning mechanisms and offer remedial and preventive actions against occurrence of mass atrocities.

    AW also encourages the inclusion of young Africans in the understanding of the commission of atrocities crimes and helps the young forge future interventions, using fast developing social media.

    “This is a perfect start for us. With this funding, we will certainly be able to unearth those who commit crimes against our people in the remote hope that they will go scot free,” said Dr. Odinkalu.

    Ms.Agnes Ebo’o, a Cameroon-ian, said: “ The project will provide a platform for young Africans to learn about past atrocities and hopefully learn on how to avoid them in the future”.

    Ibe, a Nigerian lawyer, said: “ The grant will support the development of a website that professionals can use to share their work on mass atrocities with a view to exposing those crimes, promote  justice and hopefully preventing future occurrence.”

    Mr. Nkunda said: “The beauty of this collaboration, initiated by a Cameroonian,  a Nigerian and an Ugandan, is that it will help us put our first step into the door of documenting what has hitherto, not been so much in the public domain,  but more importantly,  to make sure that new media can be a tool for combating mass atrocities on the African continent and elsewhere.”

    The six-month project is expected to develop information and a platform that individuals and institutions on the continent can use to build cases for either domestic or indeed, international accountability.

     

     

     

     

  • Akwa Ibom election: Can Udom hang on to victory?

    Akwa Ibom election: Can Udom hang on to victory?

    An  uneasy calm  pervades the atmosphere at Uyo and other parts of Akwa Ibom State  as people are waiting anxiously for the verdict of the Governorship Election Petition Tribunal to be delivered in a few days’ time.

    The April 11, election which produced Emmanuel Udoma as the governor from the Peoples Democratic Party (PDP), is the subject of petition before the Akwa Ibom State Governorship Election Petition Tribunal led by Justice Sadiq Umar sitting in Abuja. Although, the tribunal commenced sitting in Uyo, it had  to be moved to the Federal Capital Territory(FCT)  owing to the unfavourable security atmosphere in the state capital.

    Although Nigerian politicians are not known to easily conceeding or accepting defeat even when an election is adjudged transparent, free, fair and credible, the same cannot be said of Akwa Ibom  State, considering what transpired in the state prio to the election and on the election day.

    The PDP candidate, Udom, was declared winner in an election alleged to be most controversial in the history of elections in the country. The  election  was allegedly marred with violence,  killings, harassment of voters, hijacking of election materials and unprecedented rigging, making  international and local observers to pass  an unanimous verdict that ‘it was a sham and recommended a complete cancellation of the exercise.

    Umana
    Umana

    The All Progressives Congress (APC), which is the main opposition, also came out strongly to decry the conduct of the exercise. The party said there was no election in the state as it accused the former governor, Godswill Obot Akpabio, of allegedly deploying state  machineries to rig the election and overturn the popular wish of the people. As a result of this, the APC and its candidate, Umana Okon Umana, challenged the  victory  at the tribunal, seeking a cancellation of the purported election.

    The thrust of the petition filed before the tribunal by the petitioners was that elections did not take place in many parts of Akwa Ibom State.  The party alleged in its petition that high level of violence, arson and intimidation were employed by the PDP government  to perfect rigging during the governorship election and stressed that the essence was to prevent voters from exercising their rights. Expectedly, the APC supported its allegations with evidences to prove that the election was not free and fair.

    For instance, the petitioners had on April 27, obtained the Certified True Copy of the polling unit by polling unit accreditation data for the whole state from the 3rd respondent Independent National Electoral Commission (INEC) in Abuja. These were part of the evidences tendered and admitted as Exhibit 317 by the tribunal. The petitioners had contended that whereas Exhibit 317 gave an aggregate figure of 437, 128 of accredited voters, the first respondent announced a phantom figure of 1, 122, 836 votes, which when interpreted amounted  to a differential of 685,708 votes.

    During the sitting of the tribunal, the APC called more than  35 witnesses, whose account of alleged election irregularities were  shocking to prove its case. They all recounted before the tribunal how results were announced for many polling units in various local government areas despite the fact that no election took place in such units.

    One important submission of the lead counsel, Chief Wole Olanipekun (SAN), while making his  final submission in support of the petitioners’ final written address, was that, “no election known to law, no election known to mankind, no election known to civilisation was conducted in Akwa Ibom State”.

    Many pundits and keen observers of political developments in the state have since described the submission of Olanipekun as a valid summation of the sordid events of April 11, in Akwa Ibom State.

    The high points of Umana’s case before the tribunal included  a video evidence, which catalogued a lot of  manipulations, snatching of ballot boxes, thump printing of ballot papers by persons suspected to be PDP members and non-availability of result sheet at many polling units.

    For instance, the clips showed in the courtroom revealed some INEC ad hoc staff (Youth Corps members) stamping ballot papers behind INEC office, days after the election while another clip of the video showed a PDP local government chairman presiding over a massive operation of ballot box stuffing using thugs.

    Another  clip  showed a police truck and an Akwa Ibom State Transport Corporation bus allegedly used to cart away election materials and intimidate voters, who dispersed in fear for their lives while another clip  showed bandits caught with election materials and interviewed by those, who stopped them.

    There were also revelations in the video clips, which allegedly revealed how the spurious figures were tallied and written on forms by purported agents of the PDP.

    For instance, a former Deputy Speaker, Hon. Uwem Udoma, told the tribunal that election did not take place in the 125 polling units in Abak Local Government Area.

    A  Youth  Corps member, Chidinma Nwogbo, who was posted to the state and served as a presiding officer gave a chilling account of her ordeal in the hands of persons suspected to be thugs working for  the PDP during the election. Chidinma told the tribunal that she was stripped naked by thugs in Uyo while the election materials under her care were carted away by the thugs. She tendered her torn  NYSC crested vest and the jacket given to her by a spirited member of the public.

    Obong Victor Attah, a former Governor of the state testified that there was no voting in his unit, ward and local government and went ahead to tender video CD to prove his testimony.

    Also testifying before the tribunal, a forensic expert, Abdullahi Dauda disclosed that out of the 140, 832 finger prints on ballot papers matched (scanned and analyzed) by his team, over 100,000 were non- human prints. Abdullahi noted that his team of experts, which carried out the investigation, also discovered about 13, 000 cases of multiple thumb printing.

    The non-human prints could possibly have been more as another member of the forensic team, Sanusi, alleged that INEC did not allow them a free access to the election materials. He also alleged that constant incursion by the Attorney-General of the state was another issue his team had to contend with.

    Another witness, Chief Peter-King Atarah, testified that there were no election materials in all the polling units in Nsit Atai area of the state contrary to results announced by INEC for the area. The same thing was reported by other witnesses, who testified before the tribunal concerning other areas in the state including  Eastern Obollo, Nsit Ibom, Obot Akana.

    In one of the exhibits tendered, it was shown that in Etim Ekpo area of the state, out of the total number of 45922 accredited to vote, 45965 voted, which amounted to manipulation of figures.

    Observers expected a sitting governor, such as Udom Emmanuel, to put up a spirited fight to save his “mandate” during the proceedings. But this did not happen. The first respondent and his team of lawyers earlier in the  month only called few witnesses and closed their defense.

    For instance, none of the 19 witnesses called by the first respondent, Udom Emmanuel, and the four called by the second respondent, the PDP, was accredited during the election. Although they had claimed in their written statements on oath that they were accredited.

    The cross examination by counsels to the petitioners revealed that none of their names was ticked in the voters register. This showed that they were not accredited for the election, which may mean that they were not credible witnesses. In addition the PDP, which is the second respondent,  did not call any of their collation agents to challenge the evidence of the petitioners’ witnesses.

    Even the PDP State Collation Agent, Emmanuel Enoidem, who deposed to about 20- paragraph statement on oath and was listed as their prime witness, neglected his statement and was never called as a witness to defend the victory.

    The first respondent, Udom Emmanuel, had attempted to deny the existence of the figures of accredited voters  contained in the table in paragraph 29 of the petition in paragraph 13 (a) of his reply to the petition, he, however, led no evidence on it during trial. None of the respondents also made any  effort to contradict the figure in Exhibit 317 nor discharge the evidential burden of proof on them to explain the differential of 685,708. All they did was to argue that Section 49 of the Electoral Act allows for manual accreditation and that the recent Court of Appeal decision in APC v. Agbaje & Ors (unreported) cross-appeal no. CA/L/EP/GOV/751A/2015 negated the petitioners reliance on card reader as a basis for seeking the nullification of the ‘election’.

    Other  effort made to protect the  victory of the governor was when the second respondent , the PDP subpoenaed INEC to bring seven big bags allegedly containing Incident Forms, which they said were used for accreditation to the Tribunal. This was never completed as the content of the bags were never tendered throughout the sitting of the tribunal and as at the time the members adjourned to give verdict.  Even when the tribunal  reminded the second respondent that it had not tendered the Incident Forms, it still never did.

     

     

    For an election to be adjudged free and fair and acceptable in any democracy, certain ingredients  are important and pertinent: mode of accreditation, the pattern of voting, collation, recording on all relevant INEC Forms duly signed by party agents and security officials, sorting and preservation of ballot papers and report of law enforcement agencies among others and where the matter is before a tribunal, the arguments and facts placed before the panel. There must be full adherence to each of these ingredients for there to be an election.

    The people of Akwa Ibom deserves change. They deserve truth and justice and with high hope on the members of the tribunal for the preservation of their will as expressed on April 11,  2015. So as the tribunal gradually wind down to judgement day, all eyes are on the panel to do justice when they make their final pronouncement base on the strength of the case presented before them by the parties bearing in mind  that their verdict may  become a reference point in the history of election petitions in the country. Can Umana get justice from the tribunal, only time will tell.

     

  • Agency seeks end to sexual violence

    Agency seeks end to sexual violence

    Activities to mark the International Domestic Violence Awareness Month kicked off last Thursday in Lagos State, with a call by Hon. Adedamola Kasunmu of the Lagos State House of Assembly, for increased effort to combat sexual and domestic violence in the state.

    Kasunmu, a member representing Ikeja II Constituency, made the call during a Domestic Walk and Street Campaign organised by the Lagos State Domestic and Sexual Violence Response Team (DSVRT) in partnership with the Lagos State House of Assembly and Ikeja Local Government, to commemorate the month.

    He told The Nation that the Lagos State House of Assembly and Ikeja Local Government are interested in the Domestic Walk and Street Campaign because “it’s a campaign against violence, against rape and all forms of sexual abuse, and it affects everyone; women, men, and children.”

    Kasunmu, who studied law at the University of Wolverhampton in the United Kingdom (UK), added: “Personally, I also feel that the protection of life is the constitutional duty of a legislator, as well as a public office holder, and, as stipulated in the 1999 constitution as amended, we must make sure that the rights of the Nigerian person are protected.”

    The commemoration was flagged off by street campaigns on Thursday morning that took place simultaneously in Ikeja, Lagos Island, Mushin and Alimosho. It featured participants from the Lagos State Ministry of Justice, Nigerian Union of Teachers, Civil Society Groups, and members of the public.

    The lawmaker also commended the office of the Lagos State Attorney-General on the issue of domestic violence.

    He said: “Since September 2014, we acknowledge that through this prestigious ministry, the facilitation of the ratifying of the executive order that established the sex offenders’ register and mandated reports policy came into existence.

    “Furthermore, over 2000 school students have been trained on rape prevention, self-defense and preserving evidence attached to this issue. Also trained are mandated reporters ranging from health officials to teachers, school administrators and social counselors dealing with child abuse and violence complaints.”

    Other events for the commemoration include training of Divisional Police Officers (DPO), which will hold on Friday, and will be facilitated by experts on the field on how to make use of the relevant laws and assist in improving capacity, as well as a visit to Shelter and Transit homes to interact with survivors.

    The training of the DPOs will be focused on increasing the level of awareness among users of the Prevention Against Domestic Violence Law, 2007, the Administration of Criminal Justice Law (ACJL), as well as the Criminal Law of Lagos State, 2011.

    It will also seek to prepare users of the relevant laws for the full implementation of the Laws by the Lagos State Judiciary and Ministry of Justice, while assistance will also be provided in improving the capacity of users of the Laws to implement the Law.

    Resource persons at the workshop are Mr. Akingbolahan Adeniran, Senior Special Assistant to the Vice President on Rule of Law, Professor Ayo Atsenuwa, Professor of Law, University of Lagos and Dr. Princess Oluyede.

    They will focus on topics such as, Process of obtaining Protection Orders under the Prevention Against Domestic Violence Law and Corroboration and Best practices for investigating Sexual and Gender Based Violence Cases.

    The commemoration of the International Domestic Violence Awareness Month will be rounded off with a Dinner/Endorsement to be hosted by Governor Akinwunmi Ambode of Lagos State, with members of the DSVRT and relevant stakeholders including traditional rulers, Judges of the Family Court, the Police, the media and market women in attendance.

    Stakeholders that have distinguished themselves in the fight against Domestic Violence will also be recognised.

     

  • Two arraigned for alleged N5.3m theft

    Two men, Isaac Ojo and Oni Olumidegba have been arraigned at an Ogba Magistrate’s Court for allegedly stealing N5.38million.

    The defendants, who are facing a two-count charge of conspiracy and stealing were arrested on September 5 at Obi Village, Domestic Airport, Ikeja, Lagos.

    The prosecutor, W. Thomas, an Inspector, alleged that the accused stole the sum of N5.38million from Saidu Maikankan.

    The offence, the police said, contravened Sections 409 and 285(1) of the Criminal law of Lagos State 2015.

    The charge reads in part: ‘’That you, Isaac Omotayo Ojo, Oni Olumide and others, now at large, on September 5, 2105, at Obi Village, Domestic Airport, Ikeja, in the Ikeja Magisterial District, did conspire among yourselves to commit felony to wit; stealing.

    ‘’That you and others at large on the same date and place, in the aforementioned magisterial district, did steal a sum of N5, 380, 000 ­ property of one Saidu Maikankan.’’

    The defendant, however, pleaded not guilty.

    They were granted bail in the sum of N1million with two sureties in like sum.

    The sureties must posses a three-year  tax clearance, must reside in Ikeja and must have their addresses verified.

    The magistrate ordered that they be remanded in the prison custody till they meet the bail conditions.

    The case has been adjourned till November 11.

     

     

  • Lawyer hails Ayade on highway

    Lawyer hails Ayade on highway

    A lawyer and arbitrator, Dr. Dorn Cklaimz Enamhe has praised Cross River State governor, Prof. Ben Ayade on the commissioning of the Calabar super highway by President Muhammadu Buhari.

    He said the road when completed would help boost development.

    “Since he assumed office in the state, he has worked tirelessly to improve the living condition of our people and make the state a pride of all its  citizens The superhighway will reduce,  significantly, the number of deaths that have become  a regular occurrence on that highway. It will also create new towns,  cities and also improve on the economy of indegenes. It will nevertheless reduce youth restiveness because young men will be enganged in productive ventures, knowing that they can now  export their farm  yields through the access road,” he said.

    According to him, Professionals such as engineers, surveyors environmentalists or architects  will find jobs. “There will also be jobs for casual workers, farmers and  women, who will sell foodstuff to workers,” he added.

    Other artisans such as mechanics,  vulcanizers,  restaurant operators,  Ena,he said, will be engaged

    “Crime will reduce because security will not be too difficult  and there will definitely be serious security patrols to guarantee the safety of lives and property on the road,” the lawyer said.

    According to him, the road will ease movements and enable new market to open.

    “People can then live in Ogoja and come to work in Calabar and avoid paying heavy rents, thereby decongesting the state capital. Many people will have alternative  roads to choose from whenever there is need for it,” he said.

    On how the people feel about the President’s visit, Enamhe said: “Cross River State has not been lucky with Presidential  visits. This is more apparent and noteworthy when viewed from the perspective of an All Progressives Congress  (APC) president that is yet to go  to many APC  states. So, embarking on this visit to a Peoples Democratic Party (PDP) controlled state goes to show the seriousness of the governor, the importance he attaches to the  programme and his gift of national networking.”

    He continued: “Taking cognisance of the President’s  love for change,  he must have been highly impressed by the Governor, who himself had used the road and had promised to do something about it in 1996 when he as the Petroleum Trust Fund (PTF)  chairman and Senator Banabas Gemade  as Secretary of Works were conferred with Doctoral Degrees by University  of Calabar.   The determination and humility of not giving up must have endeared Mr.  President  to Gov Ayade to take the groundbreaking programme very seriously.”

    On the governor’s achievements since May 29,  Enamhe said: “He has been able to consolidate on the already existing peaceful enviroment and made citizens and investors to have more confidence in the state. He has been able to clear all outstanding salaries that he met. He ensures that workers get their salaries on the 25th of each month. He has been able to bring back confidence in the workers so much so that his negotiating skills helped in resolving the judicial workers’ strike that had been lingering for a very long time and only recently resolved the issue of local government workers and pensioners.

    According to Enamhe, Prof  Ayade has been able to show courage and humility in convincing Mr. President to accept to come back and perform the groudbreaking after the initial cancellation and the political and technical issues raised in the botched visit.

    “His personal attitude  to work has changed the way and manner civil servants now show seriousness to work by resuming early. There is no more loitering about. They now stay till the official close of work. His appointments has clearly shown his sensitivity to gender balance,” the lawyer said.