The Nation Newspaper

Category: Law

  • Buhari would have picked Gani to lead anti-corruption war’

    President Muhammadu Buhari’s respect for the late Chief Gani Fawehinmi would have persuaded him to appoint the legal luminary to champion the current administration’s anti-corruption fight, a former chairman of Amuwo Odofin Local Government Area, Mr. Ayodele Adewale, has told The Nation.

    Mr. Adewale, who spoke last Wednesday at the Freedom Square, Ojota, Lagos, during the sixth year anniversary rally in honour of Chief Fawehinmi, said before his death, the fiery social critic endorsed President Buhari’s election bid because he saw a clear determination to fight corruption.

    “President Buhari on his part saw Gani as a prudent, honest and visionary leader. Buhari would probably have chosen Gani to head his anti-corruption fight rather than Sagay,” he said.

    Professor Itse Sagay, a Senior Advocate of Nigeria (SAN), distinguished Professor of Law and human rights activist, was appointed three weeks ago by President Buhari to head a Presidential Advisory Committee against Corruption. The body is to advise the country’s leader and his administration on the anti-graft war and the implementation of reform in Nigeria’s criminal justice system.

    “Nevertheless,” Comrade Adewale continued, “Gani would be happy with President Buhari’s corruption fight.”

    Mr. Adewale, an All Progressive Congress (APC) chieftain, was one of the speakers at the rally organised by the Gani Fawehinmi Memorial Organisation (GOFAMORG) as part of activities to celebrate the ideals of the human rights lawyer.

    Other speakers at the event included civil rights campaigners such as Ayodele Akele, GOFAMORG Chairman; Dr. Joe Odumakin, the president of Women Arise for Change Initiative and Campaign for Democracy; Venerable Folorunsho Oginni and Goodluck Obi, the deputy chairman of the National Conscience Party in the Southeast.

    Comrade Akele urged President Buhari to begin to lay the foundation towards fulfilling his campaign promises.

     

     

     

     

     

     

    On the administration’s anti-corruption fight, he said recent allegations that the Economic and Financial Crimes Commission (EFCC) had not come clean on monies recovered from corrupt politicians, was enough to send the commission’s leaders packing.

    “EFCC Chairman Ibrahim Lamorde should be suspended until he’s cleared of all the allegations,” he added.

    The rally which began under the Ikeja Bridge in Lagos, ended at the Freedom Square, Ojota. It was the second in a three-day, four-legged series of events in memory of Chief Fawehinmi which culminated in a public lecture and a night of tributes in Akure, the Ondo State capital.

     

  • Quarry Project: Family sues firm over ‘trespass’

    A prominent family in Ondo State  has sued an in  digenous company at the High Court in Owo over alleged trespass and damage to its farmland.

    In its suit numbered HOW/6M/2015, the family of late Pa Josiah Aderinola of Ipele in Owo Local Government Area, is asking for N3million  as special and general damages against DIC Materials Limited of Plot 1138, Suite 8, Central Plaza, Central Business District, Abuja.

    It also wants the court to declare that the company trespassed on its land and to restrain it from further activities on the property.

    In its statement of claim, the family alleged that the company illegally entered its property and bulldozed more than two acres of its farmland at Ipele/Ifon Road, and destroyed cash crops, including cocoa trees, palm trees, cassava, plantain stems, kola nut trees, maize and yam, among others.

    The company later moved in and set up its operational base for blasting rocks without any regard to the resultant effects on crops, water, houses and human settlement within the vicinity, the family said.

    Last August 25, the family’s lawyer, Dr. Bode Ayorinde,  had written to DIC Materials Limited to stop further work on the site, pending a meeting with the representatives of his clients to work out necessary compensation based on agreement.

    But the company denied charges of not paying compensation and said it followed due process by signing a Community Development Agreement (CDA), a  Memorandum of Understanding (MOU) with Olupele of Ipele, Oba Abel Olaleye Alade (now late), in addition to a letter of consent for rock mining and documentary evidence of “compensation to land-owners and occupiers”.

    The company’s quarry manager, Mr. Balogun Ayodele also said in a letter that an unspecified “monetary compensation” was paid to “any farmer for his/her crop within the perimeter of the area where the explorer will explore/crush rock”.

    Not satisfied with the reply, the family’s lawyer wrote back last November 4, saying the company had confused the consent it required from the government and traditional ruler on the rock exploitation with that required from the family as the owners of the land for its operational base.

    “Our client will not compete with HRH, the Olupele of Ipele or the Federal Government of Nigeria on their right and authority on the rock in question which is legally classified as mineral deposit.

    “However, no law in Nigeria has appropriated our client’s land to the traditional ruler or the Federal Ministry of Mines and Steel. It is left to you to operate directly on the rock or find another piece of land to serve as your operational base,” the lawyer said.

    The statement of claim further said that despite the exchange of letters, the company had “willfully refused to consider the economic hardship” inflicted on members of the family by its activities.

    “The family has not alienated, granted or sold any part of its land to any person, including the defendant, and has not appointed any person as its agent to collect any money from the defendant,” the family added.

     

     

  • How to make cybercrime law effective

    How to make cybercrime law effective

    A lawyer, Mr Basil Udotai, has called for a central prosecuting agency to enforce the Cyber Crime Act of 2015 effectively.

    He said a provision in the Act which empowers nearly all agencies with prosecutorial powers to enforce the law may make its implementation less effective.

    Udotai, who is the Managing Partner at Technology Advisors, a law firm with specialisation in Information and Communication Technology (ICT) law practice, spoke with journalists in Lagos at a seminar by the Financial Services Group of the Lagos Chamber of Commerce and Industry, where he was a guest speaker.

    The lawyer said an existing security agency, such as the police, could be equipped to set up a dedicated cybercrime and cyber security unit for effective enforcement because of the cost involved in having multiple units.

    According to him, a special entity can also be created by regulation, which the Act allows, to enforce the Act.

    “It will be legal if the Attorney-General of the Federation (AGF) adopts a regulation under the Act and creates a special dedicated unit to tackle cybercrime. Part of the reason that should be the way to go is because the resources to set up a cyber crime investigative environment are very high.

    “I don’t think government thought about this properly, because where will you get the money with falling oil prices? It costs millions of dollars to set up cybercrime investigation systems and to replicate it across all law enforcement agencies. It doesn’t make any kind of sense,” he said.

    Udotai, who is the immediate past Director of Cybersecurity and pioneer Head of the Directorate for Cybersecurity, Office of the National Security Adviser (NSA), said the Act will need a review in the future.

    “In the long run, the law needs to be amended. The law is already in force. I guess part of the reason the law is not so overwhelmingly enforced now is because there is really no single entity that is giving the leadership. When there are several law enforcement agencies, who is the boss? So there is a terrible oversight. Nobody knows who to go to,” he said.

    In his paper, Udotai criticised the law as it relates to the financial services sector, saying technology laws are supposed to be technology-neutral, not technology-specific. He added that Cybercrime laws are supposed to be generic in provisions, not particular, as is the case.

    He said all provisions specific to technologies and particular to processes in the financial sector can be removed from the Act, without any impact on the substance of the law; adding that leaving those provisions intact is guaranteed to cause severe harm to the sector – especially banks and payment services providers.

    Besides, he said the law challenges the regulatory integrity of the Central Bank of Nigeria (CBN) and the CBN Act by criminalising certain internal procedures of the banking system, thereby creating “chilling effect” on investments in creative and innovative solutions in the sector.

    Udotai, who served as Coordinator of the Nigerian Cybercrime Working Group (NCWG) for two years, urged financial services players to petition the President on the provisions they consider onerous and which can affect their transactional and compliance burden.

    “The Cybercrime Act though long in coming and beset with major challenging components, may be applied to effectively tackle cybercrime and cybersecurity issues in the country. However, the chances of this happening naturally are slim to zero.

    “Thus, deliberate efforts must be made by the key players – Office of the NSA and the Office of the AGF, working with stakeholders, to strategically position this law to take us to this highly desirable end.

    “Those efforts must aim, amongst others, in seeking to – in the short run: create a single enforcement authority; prevent the enforcement of technology specific and industry particular provisions (financial sector mostly); while proposing a comprehensive amendment in collaboration with the National Assembly,” Udotai said.

     

     

  • Why Law School should be unbundled

    Why Law School should be unbundled

    Sylvester Imhanobe graduated from the University of Ife (now Obafemi Awolowo University) in 1989 and was called to the Nigerian Bar the next year. He was awarded the Chevening Scholarship of the British Council to undertake Master of Laws degree at the University of Manchester in 1992 where he bagged the R.G. Lawson Prize for his brilliant performance. He later taught at the Nigerian Law School, from where he resigned as a senior lecturer in 2003 to pursue private practice. He speaks with Eric Ikhilae and John Ofikhenua on how to ensure justice at election tribunals, problems with Legal Education, among others.

    As a former teacher at the Law School, why do many consider the Bar final examination very difficult?

    Ok, yes, there could be a few things. The first is that the focus of the Nigeria Law School is that it is a vocational institution. It is meant for practical training, unlike the universities that are meant for academic work.

    You see, there are three levels of Legal Education: the academic, that is, the one in the university. Here, they are taught the substantive law and the rest of that.

    The second level is the Law School, which is a vocational institution. It is like where you use your hands; that is, the how. You are taught the application of the principles that you already know.

    And, the third level is the post-school. That is, after you have been called, you still have post-qualification trainings.

    So, most students that come to the Law School, a few of them don’t appreciate this difference between when you were in the university – that  was purely academic and when you are now at the Law School – which is more practical. And, you see, the kind of questions that they meet at the Law School are different.

    There are two different types of questions, there are questions that are actually trying to test more of your memory and those are the economic questions. You can cram and come into the examination hall and pass and even do well. But there are questions that are actually meant to test your intelligence and most of those questions are problem questions. They are practical questions. So, you find that 80 per cent of the questions at Law School, if not 100 per cent, are practical questions.

    So, you have to know it. There can be no crash programme. When you were very brilliant in the university, you were very good at memorizing; you memorize the entire topic and when the questions come, you pour it as it is.

    You can’t do that at the law school, you won’t go anywhere. So, you must first of all, know it and then apply it in any given situation.  That is why you find that some students, who would have done well at the university, don’t do well here or some, who didn’t do well there, perform better here out of maturity.

    Maturity is very key, because you find that a mature student is likely to do well in Law School, because he is seeing the facts as they are.  So, maturity plays its own role. But by and large, it is still the same thing,  if you were good at the university, you should still be able to come to the Law School and understand what is being taught and improve yourself.

    There is the perception that there is a drop in quality of training for lawyers these days. How to you react to this?

    Yes, I agree with you to an extent. You see, one immediate cause of this is that Law is still part of the entire society. I think it is still a function of the falling standard of education generally. But then, talking specifically about Law, we have to watch our private universities.  Without saying much about them, most of them are purely out for the money.

    So, in which case, the extent of grooming must be thoroughly looked into. Even though there is accreditation and the Council of Legal Education goes round to accredit them and all that, we all know what goes on there.

    At the faculty, the number they admit overshoots the number allowed. You have a class that has about 400 students with facilities for just a hundred,  So, what can you teach ? Apart from the challenges in the school itself, the bulk of the challenges is even with the students.

    The students that we have today are different. This is a digital world and because of that, everything they do, they try to do it on their phones. And like I mentioned a while ago, the issue of maturity is important. You can’t learn Law by just reading law books alone, you must apply them.

    So, it is not as if the students are not being taught, but then, their level of concentration has reduced.  Most of them will spend so much time on telephone, browsing without studying well. Even when you now teach them, how many of them are ready to settle down?

    Above all, we need structural changes in the legal education system in Nigeria.

    What defects can you identify in the current structure of Legal Education in the country?

    I have, since 2003, been advocating that the Law School should be unbundled. You see, it will sound as if you are trying to attack the system, but until we unbundle the law school we will continue to have this challenge.

    The Law School now, as it is, is the only institution in Nigeria where the operator and the regulator are fused as one. There is the Council of Legal Education, which is a Regulatory body that should regulate the law school, but as it is now,  it is almost the other way round.

    The NCC (Nigerian Communications Commission), as a regulatory body, is different form the telephone service providers; so is the West African Examination Council (WAEC) which regulates the School Certificate examination by secondary schools. That is how it should be with the Council of Legal Education and the Law School.

    So, as it is now, where the both institutions are fused, it means that nobody can criticize itself if the Law School is not doing it right. Because they also constitute the council, they will not tell you.

    So, the Law School must be unbundled. Separate the Council of Legal Education from the Law School strictly and the examination should also be an external exam. What we do now is that, it is an internal exam. You see, you should separate the Law School from the council of legal education. Let the council perform regulatory roles. Let the Law School perform its role of teaching.

    Is that how it is in other countries?

    All over, that is how it is. That is how it is in US, that is how it is in the UK.

    But, also, it is a matter of choice. You could finish in the UK and then you decide where you want to go to. But in Nigeria now, it is almost compulsory that once you leave the university, you go to the Law School, and look at the number of students from the universities that don’t have admission at the Law school.

    Will the separation of the Council of Legal Education from the Law School address the problems you have identified, including the crisis of admission at the Law School?

    In a profession that gives so much respect to seniority, you may not get admission for reasons other than you own cause, so it is because of over centralization. The time that Law School was established far back as 1962 you will find that the first set of students at the Law School were just about eight but now, the people that graduate from the universities run into thousands.

    We have almost between 13-15,000 graduates from the universities, and how many can the law school absorb?

    So if we unbundle Law School and make the council to perform its statutory role, the school will be able to concentrate on its core responsibility. I will propose that Law education should be extended to seven years – five years in the university, then there should be a year that is purely devoted to vocational training, and when you have written your exam and passed, you should have one year of internship.

    The reason is that as soon as you are called to bar, I should be able to give you a file to handle any matter.

    But, what we have now, which allows only one year at the Law School inadequate, because it is inside that one year that you have the internship; internship of about six to nine weeks, when you send them to the chambers they come here and they don’t do anything.  They are thinking of how to pass their exams, considering that this is a country that focuses more on certificates than the skill.

    So, under our proposal as well, you will not even have these grades; grading should stop.  It is a professional exam. We will just have pass and then we have distinction.  We should still give room for those eggheads to be recognized, every other person should belong to pass. What is 2-1, Third Class?

    We have to professionalize the profession. If we continue with what we are doing now, we will continue to have poor results. So, there is need for change. Change should also go into the area of Legal Education in Nigeria.

    The Independent National Electoral Commission (INEC) is being accused of frustrating the inspection of election materials, even where tribunals have ordered such inspection. Should petitioners be at the mercy of INEC?

    I was a counsel in the 2011 presidential petition, that is, the one filed by the Congress for Progressive Change (CPC) against INEC and others. And I recall that I was on the petitioner’s side.

    I recall that Justice Ayo Salami (retired) granted CPC an order to inspect the biometric database of INEC in respect of the elections of 2011. As soon as he granted that order, I was on the team that went to INEC, but lawyers from the other side, who were in government then interpreted that order of court in the way that would suit them.

    And when we came back and now reported the matter to the court that its order is being flouted, we actually filled a motion for judgment. That motion for judgment was pending as at when Justice Salami was removed. The petitioner had a motion for judgment pending against the respondents, that is, INEC and the erstwhile President Goodluck Jonathan when Justice Salami was removed.

    The law is very clear. The court has given an order that you should be allowed to inspect materials, then you should be allowed to inspect materials. But even at the level of the presidential petition, we had an order to inspect materials and we were not allowed.

    Now when I watch these things go on, the same people that flouted the order then, are the people that are complaining now. But, the law is very clear; if a court has given an order, it is contempt for you to disobey it. You must obey it.

     

     

    Having in mind that a tribunal has just 180 days, will it be wise for a petitioner to spend time on contempt proceedings against INEC where order for inspection is flouted?

    Yes, that is where the strength and character of the tribunal is called to question.  A contempt proceeding does not take a long time.  It was difficult before because it was business as usual. Remember that we are under a different atmosphere. What we have even found now under research, is that for every tribunal that you had, there was always a lone voice, at least, a lone voice.

    The Judiciary wants to sit up. It is undergoing a lot of cleansing. So, the sensibilities of the judges of today are certainly better than that of that of yester years. We are getting better by the day.

    I expect that a judge, who has issued an order for inspection of documents and anybody stands on the way, knows what he/she should do when contempt proceedings come before him/her. But then, like I said, we had a similar situation at the presidential election tribunal and then we were walked away shamelessly.

    So I don’t think there is any problem about that. Contempt proceedings and then the court knows what to do.

    INEC ought to be fair to all, but it seems to always align with defendants in most election cases. How should INEC conduct itself in election dispute?

    We always hear this saying that, it is almost a cliché now,  that election petitions are on a class of their own. If we really have to go forward, there are the principles of election petitions that we have to go back and look into.

    Basically, on this issue of burden of proof, on who does it rest? This is the area where you tell a man to come and prove what he does not have access to see. There is a school of thought that believes that once a petitioner has laid his petition with the four grounds, particularly when you say that the election was not conducted in accordance with the provisions of the Electoral Act, the burden of proof should move to INEC to show that it did.

    But, as it is today, the burden of proof is still on you, the petitioner.  So INEC is still giving a lot of leeway to do and undo. But I believe that as we grow, we will have to really look at it very that the burden should be on INEC to show that they conducted the elections based on the provisions of the Electoral Act. This is because it is stage by stage, starting from the voters’ registration, the accreditation, the voting, the counting, the releasing of the result and everything.

    It is possible for them to show that, and once they are able to show prima facie, then based on the presumption of regularity, they can enjoy that. But what they have now is that they enjoy that principle of regularity from day one without even showing that they even had a register, which is not good.

    Once it has been challenged, they should come up and show this is the register, these are the accredited voters, these are the result sheets, they were collated, the results were declared, before somebody was returned elected.

    So, once you have been able to show all that, then the burden should now go to the other person to show where in this chain, it was not conducted in accordance with the law. But where we are now is that INEC is given that  presumption from day one and that is where you find that it is a jurisprudential problem, which I believe will also be solved as we move forward.

    Do you think 180 days are sufficient for determining an election petition?

    It is even more than enough. It is more than enough. 180 days, that is six months. Six months is more than enough. Mind you there is a limit to the number of pages of the petition. They are trying to minimize the size of the petitions and the replies. In fact, it is usually when we don’t know what we want to do that we delay. Go to the point, go straight. 180 days is quite enough.

    President Muhammadu Buhari has promised to ensure the prosecution of those found to have stolen public funds. Do you think the court system is ready for this task?

    Yes!  It is so unfortunate for us to think that our courts are weak, very unfortunate.

    We drove ourselves into that hole; otherwise, I can tell you that the Judiciary in Nigeria is one of the strongest Judiciary in the world.  We have produced Chief Justices for countries like the Gambia; we have produced justices at the World Court. So, I must tell you that these are products of the Nigerian Judiciary. It is one of the strongest Judiciary in the world.

    You see, what we have been going through, like I said, is one of the societal challenges.  The judges cannot be divorced from the society from which they grew up. But with the current trend and the change mantra, I can assure you that they have more than enough, both in terms of personnel and the materials, to handle all these cases within a record time, so we can handle them and handle them very well.

    Do you think the whole trial process will not be hampered by the usual delay in the judicial process?

    No. If you watch the judiciary from 2013, the erstwhile Chief Justice of Nigeria, Justice Aluma Muhktar actually brought out what we call practice directions. These are practice directions from the Supreme Court, the Court of Appeal and at the Federal High Court on criminal trials; trials that have to do with corruption. In fact, we call them new generation offenses. So, with these practice directions, they fast track criminal matters and they are given priority.

    Then, with the passage of Administration of Criminal Justice Act 2015 a lot of the focus is now on speedy trial. In fact you are given 180 days. A trial now can no longer exceed 180 days. So the case management system, under the Administration of Criminal Justice Act, is highly enhanced. So, now you are going to see speedy trials.

    We have a better system now and all stakeholders are now involved.  There is a reporting system. I think there is a quarterly report, whereby if a matter is going to last more than 180 days with you, you must state why. The case management regime has improved a lot.

    How would you advise the government to actually proceed with its plans to recover looted funds?

    The government should use all available options that are legitimate. The administration of Criminal Justice Acts 2015 has just given us statutory power for plea bargaining.  And plea bargain is actually used in circumstances where the prosecutor is not too sure of whether he is going to secure a conviction at the end of the day. There is evidence, but you know it is 50-50 and the accused person, who is now called the defendant under the new Act, also is not too sure. Both parties can then strike a bargain; it’s an agreement. So, there are such situations.

    But there are also situations where the laws are very clear, and there is sufficient evidence that you can secure conviction. The Administration of Criminal Justice Act has introduced a new regime of punishment. We are no longer looking at the custodian punishment again.

    The focus now is on restitution, forfeiture. If you have stolen and it is proved, you forfeit the property back to government. So, we don’t want to fill our prisons with criminals.  We just want our assets back.

    So, for those who will willingly return their own, it is good.  There are a group of persons, who will do that. But then, that does not now mean that you are free, because you don’t expect the criminal to return all. So, you will still have to explain how you got the remaining ones that you kept to yourself.

    Then I will also advise a lot of the criminals to also take advantage of the plea bargain option too. Their lawyers should advise them on that. Plea bargain is very good, it hastens the time for everybody and benefits both sides – you get something, I get something.

    The essence of the administration of criminal justice is not really to witch- hunt. That is why I find it amazing that people now want to tend towards the fact that it is a witch-hunt or it’s not a witch-hunt.

    There is a proverb in my language, an African proverb that says: where you fell a tree on another, if you want to dismantle them, you remove the one on top first. So, let us use the evidence we have today to prosecute the people of today. They should not be pursuing the persons of yesterday and let the evidence of today to disappear.

    So, if by tomorrow we get the evidence of yesterday, we will use that evidence to prosecute the offenses that was committed yesterday.

    Why did you choose to study Law?

    I actually wanted to study Political Science. But, out of lack of counseling, I didn’t know that I would require, at least, a pass in Mathematics to be admitted into the Faculty of Social Sciences.

    So, having applied for Political Science twice to the University of Benin, the University of Ibadan and I didn’t get admission, I had no option than to go and take Law . It was more like an Art subject. You did not require a pass in Mathematics to the Faculty of Law then.

    I knew some lawyers then; but then, I preferred to study Political Science just because of the name. You know they called it Pol. Science. So I loved Political Science so much and I love that degree – the B.Sc.

    And again, there used to be this distraction about Law – most people felt that lawyers must belong to one cult and that lawyers do not live long, and cannot be Christians. So, for me, and from a Christian background, it was like, what are you going to do in that profession where everybody is covered in black and all that?

    So, Law was never in my contemplation, I came to study law when my attempt to get admission into Political Science failed and the only option for me was to go for Law because then, I didn’t want to read History or English or Religion . I wanted a professional course. So, that was how I went in to study Law and honestly, I thank God, it is like God directed me that way.

     

     

  • Law as tool for national development

    Law as tool for national development

    At the just-concluded yearly conference of the Nigeria Bar Association (NBA), speakers, including President Muhammadu Buhari and Vice President Yemi Osinbajo (SAN), were unanimous that the nation’s quest for reawakening and sustained growth is imperilled without the support of the judiciary. They suggested ways law could be effectively deployed as a tool for national development. Eric Ikhilae reports.

    For eight days last week, lawyers gathered in Abuja to examine, among others, ways to improve society through the law.

    From August 21 to 28, speakers and other conferees examined the suitability of the nation’s legal framework, identified some flaws and recommended ways the Law and the judicial system could be effectively deployed as agents of national development.

    The event, the 55th Annual General Conference of the Nigerian Bar Association (NBA), which was well-attended, attracted dignitaries, such as President Muhammad Buhari; Vice President Yemi Osinbajo; Chief Justice of Nigeria (CJN), Mahmud Mohammed; Chief Justice and President of the Supreme Court of Kenya, Dr. Willy Mutunga, and key players in the critical sectors.

    About 39 papers, touching all aspects of legal practice, were presented by experts, who were both lawyers and non-lawyers.

    Drawing from the broad theme of: Lawyers and national development, speakers at the various breakout sessions, addressed issues affecting every facet of the nation’s sector and suggested how, with everyone diligently playing his/her part, the required growth and development could be attained.

    Areas explored included: “the role of lawyers in national development; contribution of lawyers in public office to national development; providing legal support for talent based industry; special focus on movies, music, comedy and sports; law officers and national development; the use of Alternative Dispute Resolution (ADR) in election petitions; ending the scourge of abandoned projects in Nigeria, anti-corruption: Fresh strategies, new initiatives.”

    Realising the importance of the involvement of the law community in his administration’s anti-corruption stance, President Buhari, while inaugurating the conference on August 23, urged lawyers and judicial officers to partner with the people in this crucial period of national reawakening.

    Buhari, while enlisting the lawyers’ support for his administration’s resolve to combat corruption and impunity in the land, acknowledged their professional responsibility of defending their clients. He urged them to do so without compromising their professional ethics and the integrity of the legal system no matter how lucrative the brief may be.

    The president drew the lawyers’attention to how pervasive corruption and impunity, which signposted past administrations, have combined to deny the masses access to basic needs.

    “It is the reason pensioners are not paid and potable water is scarce. In effect, corruption diverts public resources meant for millions of people into the private pockets of a greedy few, thereby causing a lot of suffering, deprivation and death. In my view, there can be no greater violation of human rights.

    “Viewed in this way, I think we can all fully appreciate the gravity of this oppressive and destructive evil. This should rouse us to fight it with the same zeal and doggedness as we deploy in the defense of fundamental rights.

    “I am convinced that law, lawmakers, lawyers, law courts and the law enforcement agencies all have pivotal responsibilities to discharge, if the change we seek is ever to materialise,” Buhari said.

    While speaking on the topic: “The role of law in national development,” Prof Osinbajo laid before the gathering, the policy thrust of their administration on the reform  of laws necessary for economic growth and strengthening of legal and institutional framework of key justice institutions in the country.

    Osinbajo, who assured Nigerians of the commitment of the Federal Government at ensuring the effective management of the nation’s resources for the benefit of all, said the government will ensure that all avenues of leakages were plugged and take steps to change every aspect of the economic value chain, while working to improve infrastructure, food production and power generation.

    •President Buhari (right) and Vice President Osinbajo.
    •President Buhari (right) and Vice President Osinbajo.

    The Vice President, however, noted that there was need to reform the justice sector to enable it function in aid of government’s objectives. This, he said, was imperative, because the effective interplay of the components of the justice sector will largely affect the performance of the national enterprise, which elements include security of lives and property, the economy and rights protection.

    Osinbajo stressed the need for players in the justice sector to work with the government to effectively deal with “theft, official corruption and the privatisation of public resources” to allow for the attainment of the anticipated national growth and development.

    “We have to deal with the issue of integrity in our judicial system even as we deal with general problem of corruption. There is no question at all that, if we don’t handle corruption squarely, if our justice system is so degraded, that  it will be practically impossible to get very much done or to encourage anyone to come into our environment.

    “We should be able to hold people to account; to ensure that people cannot escape justice. The self-seeking ways of a few should not be allowed to stall our national enterprise,” he said.

    In apparent response to the challenges thrown at his sector by the President and Vice President, Justice Mohammed assured of the support of the Judiciary and his commitment to sustain the ongoing reforms in the judiciary, which include the review of the process of judges’appointment, deployment of information and communication technologies (ICT) to aid court process and moves to ensure commitment and dedication by judicial officers.

    The CJN, who blamed the delay in court proceedings on mostly lawyers, sought an enhanced collaboration between the Bench and the Bar for the court to effectively play its role of justice dispensation.

    “While it must be acknowledged that our Judiciary is not perfect, we cannot overlook the role of counsel in facilitating the onset of delay.

    “As we all are aware, delay in most instances are either occasioned by the lack of diligent prosecution of a case, antics of counsel such as the use of interlocutory appeals to stall and frustrate a legitimate expectation of justice, or indolence on the part of some Judges.

    “My learned colleagues this state of affairs cannot be allowed to continue. It is one thing to talk the talk, but I am also determined to walk the talk.

    “As we continue to fish out and discipline indolent and lazy Judges by showing them the way out of the system, we must also acknowledge and praise those judges that are diligent and hardworking. To this end, the NJC’s Judicial Officers Performance Evaluation Committee has also been strengthened to perform its functions,” the CJN said.

    He called for enhanced financial allocation to the Judiciary to enable it meet the expectation of the society.

    The conference, in one of its breakaway sessions, emphasised the importance of infrastructural development in the realisation of a nation’s quest for development. It was the general position that there was the need for a synergy between the public and private sector for the nation to overcome its current infrastructure deficit.

    A Senior Advocate of Nigeria (SAN), Wale Babalakin, argued that the government has no reason to abandon any ongoing project on the ground of paucity of funds. He said with planning and proper management of resources, the scourge of abandoned projects in the country will end.

    Babalakin, who spoke from a private sector perspective, warned that the nation’s hope of developing critical public infrastructure as a vehicle for economic development, will remain a mirage without a change of attitude by public officers.

    Relying on his experience as private investor in public infrastructure, Babalakin contended that the prevailing practice, where public officers violate contracts and agreements at will, perceive private investors in public infrastructure as either competitors or inferior partners, would only help sustain the scourge of abandoned projects.

    Babalakin said it was impossible for the government to fully meet the nation’s infrastructure need without the involvement of the private sector, particularly in the face of dwindling national revenue from oil sales.To him, achieving success requires conscious effort by the government to protect private investors from the activities of self-centered public officials.

    Citing cases where negative attitude of government officials have destroyed beautifully conceived private initiatives in the past, Babalakin noted that the lack of cooperation from government officials helped to frustrate such projects that would have helped resolved the infrastructure deficit.

    He argued that, had government officials planned, the current fall in government earnings from oil would not have had any major impact on government’s spending capacity because there were sufficient indicators before now of impending fall in revenue.

    The conference also examined the role of lawyers in the protection of consumers’ rights in Nigeria: Lessons from the telecoms and power sectors in view of the realisation that the interplay of market forces and the investor’s quest for enhanced returns mostly work at the detriment of the consumers.

    Speakers, including the Chairman, Nigerian Electricity Regulatory Commission (NERC), Sam Amadi and, Joe Gadzama (SAN); Head of the Consumer Protection Council, Mrs Dupe Atoki and Moyo Onigbanjo (SAN) examined the nature of violation of consumers’ rights in both sectors, issues of enforcement and effectiveness of the Consumer Protection Act, and how the legal profession can contribute to the promotion and protection of consumers’ rights.

    Amadi, who recently queried the court’s right to question his commission’s decisions, attempted to defend the nebulous charges his commission and marketers of power impose on Nigerians,

    Superior arguments, however, prevailed and it was the general opinion that these charges, particularly the fix charge was not justifiable, and amounted to multiple taxation, a position the NBA adopted in its communiqué, and which it specifically sought the abolition of the fixed charge.

    On how to improve the legal and regulatory framework of the petroleum industry, speakers, including the Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), Dr Ibe Kachikwu, and Senator Victor Ndoma Egba said there was an urgent need for the review of the regulatory framework in the oil sector if the country seeks to improve its earnings from the sector.

    They reviewed key fiscal, commercial and regulatory changes proposed in the Petroleum Industry Bill (PIB), discussed how the Bill could address the challenges in the sector and suggested an urgent passage of the Bill into law, but with some amendments.

    Some of them recommended that emphasis should not only be on the upstream subsector for export purposes, the downstream subsector should also be emphasised for job creation and diversified developmental purposes

    They advised that a review of the Bill should include provisions to ensure that oil companies causing environmental degradation, shall, in addition to fines imposed by the government, pay a fair, full and adequate compensation to any persons aggrieved as determined by a judge sitting in the jurisdiction of injury whether state or federal, provided that the sum payable shall be as determined by an advisory ad hoc multi-disciplinary college of referees appointed by the judge comprising toxicologists, surveyors and values, whose fees shall be charged to the polluter.

    They also suggested the streamlining of the new agencies, which have overlapping functions, the removal of clauses, which disregard the right of citizens to legal redress in the courts and the reduction in the overriding powers of the Minister for Petroleum, before the PIB is passed by the National Assembly.

    Presenting the conference communiqué last Friday, the NBA President, Augustine Alegeh (SAN) reassured the commitment of the body to support the government’s anti-corruption effect and all other efforts aimed at the good of the society.

    “The NBA shall play a leading role in the fight against corruption; the NBA shall continuously pursue systemic reform of the legal system in Nigeria in order to enhance national development.

    “The NBA shall make as a cornerstone of its advocacy, transparency in the appointment of judicial officers as critical to building confidence in the judicial system, a necessary plank in national development,” Alegeh said.

     

     

  • What’s wrong with Administration of Criminal Justice Act?

    What’s wrong with Administration of Criminal Justice Act?

    •Continued from last week

    PART 11 on ‘Control of Criminal Proceedings by the Attorney-General’is concerned with “Discontinuance of criminal cases and Withdrawals from prosecution in trials and inquiries before a court.”

    PART 12 on ‘Institution of Proceedings’deals with “different methods of instituting criminal proceedings, mode of instituting criminal proceedings in a magistrate court and returns by Comptroller-General of Prisons.”

    PART 13 on the subject matter of ‘First Information Report’deals with “Procedure for receiving complaint and first information report.”

    PART 14 covering ‘Enforcing Appearance of Suspect’is concerned with “Compelling appearance of a suspect. Summons and warrants, Making of complaint and issue of process.”

    PART 15 providing for ‘Issue, Form and Service of Summons’deals with”Issue and service, Issue of summons and contents, Hearing by consent before return date of summons, Summons with immediate return date in special circumstances, Discretion in ex parte application, Summons to be in duplicate, Service of summons, Normal methods of effecting service, Service where person summoned cannot be found, Service on public officers, Service outside jurisdiction of court, Proof of service when serving officer not present, Receipt of service of summons, Person refusing to sign receipt may be arrested, Proof of service, Summons disobeyed, warrant may be issued, Issue of warrant for suspect in the first instance, Application of sections 35 to 47 to such warrant, Warrant may be issued before or after return date of summons, Power to dispense with personal attendance of defendant in certain cases.”

    PART 16 on ‘Miscellaneous Provisions Regarding Process’isconcerned with”Irregularity in summons, warrant, service, or arrest, Irregularities which vitiate proceedings, Variance between charge and complaint, Process valid notwithstanding death or vacation of office of person issuing.”

    PART 17  on the subject matter of ‘Saving of Validity Of Process’ deals with “Validity of process: warrant of commitment and warrant of distress, General addressee of process for issue and execution, Certain provisions applicable to all summonses and warrants in criminal matters.”

    PART 18 on ‘Search Warrants’is concerned with “Application for search warrant, Cases in which search warrants may be issued, Discharge of suspected person, Search warrant to be signed by Magistrate or Justice of the Peace, Search warrant to whom directed, Time when search warrant may be issued and executed, Person in charge of closed place to allow access, Occupant of place searched may attend, Execution of search warrant outside jurisdiction, Magistrate may direct search in his presence, Detention of articles recovered, Perishable articles may be disposed of by court, Search for and disposal of gunpowder, Disposal of counterfeit currency and certain other thing, Transmission to court of other State.”

    PART 19 covering ‘Bail and Recognizance: Generally’is concerned with “General entitlement to bail, Power of court to order person in custody to be brought before it, Recognizance by parent or guardian of a child, Bail where a suspect is charged with capital offence, Bail where a defendant is charged with offence exceeding three years imprisonment, Bail where a defendant is charged with offence not exceeding three years imprisonment, Bail in respect of matters in other offences, Conditions for bail, Recognizance in respect of a child, Sureties, Judge may vary bail fixed by Magistrate or police, Reconsideration of bail, Before whom recognizance may be executed,  Release on execution of recognizance, Mode of entering into recognizance, Continuous bail, Defendant bound by recognizance to appear before acourt or police may be committed to prison, Reconsideration of amount of bail on application by law officer or police, Variation of a recognizance if surety unsuitable, Discharge of sureties, Order of fresh security upon original order, Forfeiture of recognizance, Mitigation of forfeiture, Where defendant fails to find surety, Forfeiture on conviction, Where recognizance forfeited warrant may be issued, Arrest on failure to appear,  Payment on recognizance, Appeal, Registration of bondsperson, Bondspersons may arrest absconding defendant or suspect.”

    PART 20 on ‘Property and Persons’covers “Methods of stating multiple ownership of property, Description of persons in criminal process, Remedies of married woman against her husband and others in respect of her person or property, Husband and wife competent as witnesses.”

    PART 21 ‘On the Charge’deals with “Forms of charges in Second Schedule to be used and adapted, Offence to be stated in charge, Legal presumption of charge, Particulars in charge, Charge of criminal breach of trust, Charge of criminal falsification of accounts, Charge may contain the manner in which the offence was committed, Sense of words used in charge, Description of property and joint owners, Description of bank or currency notes, Provision as to statutory offences, Description of persons, Description of document, General rule as to description, Statement of intent, Defendants who may be charged jointly, Separate charges for distinct offences, Attempt same as substantive offences, Trial for more than one offence, Offences falling within two definitions, Acts constituting one offence but constituting a different offence when combined, Where it is doubtful which offence has been committed, Incidental offences in the same transaction.”

    PART 22 on ‘Alteration or Amendment of Charges’ covers “Alteration and amendment of charge by permission of court, Procedure on alteration of charge, When court may proceed with trial immediately after altering, adding to or framing charge, Recall of witnesses when charge is revised, Effect of error, Objection to a charge and  Effect of material error.”

    PART 23 on ‘Conviction When Charged With One Of Several Offences Or Of Another Offence’deals with “Where defendant charged with one offence may be convicted of another, Full offence charged, attempt proved, Attempt charged, full offence proved, Liability as to further prosecution, On charge of an offence conviction as accessory after the fact to that or connected offence may follow, Defendant tried for lesser offence but a higher offence is proved, Conviction of kindred offences relating to property, Defendant charged with burglary may be convicted of kindred offence, On charge of rape conviction under defilement, incest, unnatural or indecent assault may follow, Procedure for trial on charge for certain offences, On charge of defilement conviction of indecent assault may follow,  Where murder or infanticide is charged and concealment of birth is proved, Where murder is charged and infanticide is proved, Where offence proved is not included in offence charged, Withdrawal of remaining charges on conviction on one of several charges.”

    PART 24 on ‘Previous Acquittals or Conviction’covers “Defendant convicted or acquitted not to be tried again for same or kindred offence, a defendant may be tried again on separate charge in certain cases, Consequences supervening or not known at previous trial.”

    PART 25 on ‘Witnesses: Compelling Attendance and Taking of Oath or Making of Affirmation’deals with”Issue of summons for witness, Service of summons and other processes on witnesses, Warrant for witness after summons, Issue of warrant for witness, Mode of dealing with witness arrested under warrant, Penalty on witnesses refusing to attend,  Non-attendance of witness on adjourned hearing, Persons in court may be required to give evidence though not summoned, Manner of taking oath or affirmation, Witness refusing to be sworn, or produce documents.”

    PART 26 on ‘Witnesses: Expenses’covers “Expenses of witnesses for the prosecution, Expenses of witnesses for the defence, Adjournment may be granted subject to witnesses’ costs, Ascertainment of witnesses’ expenses”.

    PART 27 on ‘Examination of Witnesses’deals with “Application of the Evidence Act, Power to call or recall witnesses, Certificates of certain government technical officers, Right of reply, Public to have access to hearing, Court may exclude certain persons while taking evidence of a child or young person, Order under section 259 or 260 not to apply to press and certain others, Prohibition on children being present in court during the trial of other persons, Visit by court to locus, Determination of age, Age in

    •Concluded

  • Court rejects foreigner as surety

    A Magistrate’s Court sitting in Ikorodu, Lagos has rejected a Beninese national, Jimoh Ameida, as surety for his brother, Lamina Ameida, in a case involving the damage of two Mercedes-Benz trucks.

    Lamina, a 30-year-old employee of Blue Sky Pure Water Company, Igbogbo, was first arraigned in June for allegedly pouring salt into the engines of both trucks belonging to one Emily Nwokeduko, and valued at N2.3million each.

    He was granted bail and presented Jimoh and one Christiana Ishola, as his sureties.

    Police prosecutor, Mrs. Abosede Adegesin, however, told the court  that there was reason to believe that the brothers were from Cotonou, and Jimoh, who gave his surname as Hammed, had provided a questionable address.

    She added that the bond provided by Jimoh was unsigned while that given by Christiana had an address different from the one on her utility bill.

    Mrs. Abosede, who substituted the former charge against Lamina for a fresh three-count charge, urged the court to reject the two as sureties for the accused because it would be impossible to trace them if they absconded.

    The defendant’s counsel, Mr. Ilesa Obatayo, argued that there was no evidence that Jimoh was not a Nigerian and prayed the court to allow Lamina to enjoy the bail previously granted.

    The presiding magistrate, Mr O. O. Olatunji, upheld the prosecution’s argument and granted the accused fresh bail of N500, 000 and two sureties in like sum.

    The case was adjourned to September 3.

     

     

  • N1.2b ‘debt’: AMCON ‘takes over company’s property’

    In a bid to recover a debt of N1.2billion from G.CAPPA

    Plc, the Asset Management Corporation of Nigeria (AMCON) said it has taken possession of the company’s property at Kano Street, Borno Way, Ebutte Metta, and at 8, Taylor Road, Iddo, Bond Line, Lagos.

    It follows an order made by Justice Chukwujekwu Aneke of the Federal High Court in Lagos on May 14.

    The court also froze the company’s bank accounts and restrained G.CAPPA from dealing with, assigning or leasing the property to a third party pending the hearing and determination of the substantive debt recovery action.

    In a supporting affidavit sworn to by Mr Victor Igabor of AMCON’s Credit Directorate, the corporation said G.CAPPA approached UBA for working capital to the tune of N880million as overdraft, short term advance, direct credit, bonds and guarantees for corporate restructuring, which were granted through offer letters of April 28, 2000; April 30, 2001 and March 14, 2002.

    The property was said to have been used to secure the loan, which was bought over by AMCON. “At the expiration of the facility, the defendant failed, neglected and/or refused to liquidate its indebtedness to it, leaving an outstanding balance of N1,207,296,646.45 being the outstanding balance as at the 4th day of June, 2014,” AMCON said.

    But in its defence, G. CAPPA denied failing or refusing to repay the debt, saying the issue has always been that of ascertaining its exact indebtedness to UBA Plc.

    The defendant said it has made some payments to UBA amounting to N250million, adding: “The defendant is not bound to pay the sum claimed by the plaintiff because that is not the actual amount it owed the plaintiff.”

    G.CAPPA has also filed a counter-claim against AMCON and UBA, saying that the overdraft facility it took from UBA was N250million by commercial paper and that it owes the bank only N86million.

    It said UBA unilaterally varied terms of the agreement to the detriment of G.CAPPA, which adversely affected its business.

    Meanwhile, AMCOM has filed an application, urging the court to enter judgement against the company as per the N1.2billion claim.

    Justice Aneke adjourned to October 6 for hearing.

     

  • Group to Okiro: resign over fraud allegation

    Group to Okiro: resign over fraud allegation

    A pressure group, Access to Justice (AJ), has asked the chairman of the Police Service Commission (PSC),  Mike Mbama Okiro, to resign following the findings of the Independent Corrupt Practices and other Related Offences Commission  (ICPC), which indicted the Commission of corruption and fraudulent activities to the tune of N133.4 million.

    In a statement in Lagos last week  by its Executive Director, Joseph Otteh and Okechukwu Nwanguma of the Network on Police Reforms in Nigeria (NOPRIN), the AJ said the indictment of the PSC by the ICPC was enough reason for the chairman of the Commission to vacate office.

    Access to Justice said the PSC “leadership has brought upon the Commission a huge credibility crisis and degraded its moral authority too much to be able to effectively hold police officers accountable for misconduct”.

    In view of this, the group contended that the findings made by the ICPC has reached the thresholds for demanding that the PSC chair vacates office immediately.

    “The Police Service Commission cannot be indulging in an entrenched pattern of malfeasance and misappropriations and remain positioned to discharge its constitutional mandate of fighting corruption or abuse of power within the police force or sanctioning police officers guilty of corruption or misconduct,”it argued.

    The group noted that the PSC is responsible for the disciplinary control of police officers and for ensuring that police officers comply with all police laws and regulations, including those on corruption.

    “Where the PSC cannot effectively perform its oversight disciplinary responsibilities, a huge disciplinary and control gap will be created within the Nigerian Police Force, which will, consequently, further entrench and facilitate systematic corruption within the institution.

    “The continuance of the present incumbent of the office of the Chairman of the Police Service Commission is, therefore, no longer tenable. It is in the best interest of the body and for the sake of preserving the PSC’s ability to effectively perform its constitutional duties, that we are, therefore, demanding that he vacates the office now,”AJ contended.

    The ICPC on August 11, ordered the PSC and its Chairman, to refund to the government treasury the sum of N133.4 million out of the N350 million it received from the Federal Government for the monitoring of the conduct of the 2015 elections following an investigation carried out by the commission based on a petition by Mr. Aaron Kaase, a staff of the PSC.

    The petition alleged acts of corruption, abuse of office and fraudulent acts to swindle the PSC to the tune of N275.5 million on the part of the chairman of the PSC.

    Access to Justice noted that the findings of the ICPC on the activities of the PSC revealed that “the Police Service Commission (PSC) received the sum of N350 million from the Federal Government to monitor the conduct of police personnel in the recently conducted general election.

    “The Commission budgeted to expend the fund on training and physical monitoring during the election. Investigation revealed that the Commission budgeted for training of 900 staff to conduct training in Abuja, Lagos and Kano. However, the entire staff force was not more that 391 and that was the figure actually trained in a programme held in Abuja only… “

    The group, in spite of having called for the resignation of PSC Chairman, Okiro, however, faulted the conclusion of the report of the ICPC on the investigation conducted into the commission.

    “Judging from the ICPC’s statement, it is fairly evident that, from the start, an intention to misappropriate funds was clearly incubated, set in motion, and manifested when the Commission projected to train 509 more staff than it actually had. In other words, the Commission received training monies for a large retinue of “ghost staff”.

    “Those preparatory steps were subsequently consummated: the Commission got taxpayers’ monies based upon the misrepresentations it made, and held on to the money that remained afterwards.

    “As the ICPC found, the Police Service Commission even knowingly paid its staff based in Abuja return air ticket money for a programme that held in Abuja; yet another fraud!

    “How these corrupt practices and deceptions could come to be characterised by the ICPC as merely “administrative in nature and within the ambits of career public servants handlings” is baffling,” AJ argued.

    The group recalled that in 2008, a former Minister and Senator were arraigned and prosecuted for failing to return unspent funds in their Ministries/Committees to the government’s coffers.

    “The ICPC’s working definition of criminal corruption sets our alarm bells ringing; it is clearly too flawed and deficit to help Nigeria’s war against corruption. If there were no criminal acts committed, it becomes open to question the business of the ICPC in ordering the PSC to refund money. The ICPC’s mandate, it may be said, extends only to the investigation and prosecution of acts that constitute corrupt practices,” the group said.

     

     

     

  • Breach of rules can only render a proceeding irregular, not a nullity

    This is an appeal against the judgment of the High Court of Delta State sitting at Sapele delivered by Hon. Justice E.N. Emudiainohwo wherein the learned trial judge awarded the sum of N10,488,678.80 to the Respondent.

    The Respondent by a Motion Ex-parte pursuant to Order 23 Rule 1 of the High Court (Civil Procedure Rules) 1988 of the defunct Bendel State then applicable to Delta sought that the Writ of Summons regarding the suit be placed on the undefended list. The Respondent had attached exhibits to buttress his prayers in the said motion.

    The trial Court granted the order as prayed and ordered that the Writ of Summons bemarked undefended and placed on the undefendedlist, service was ordered on the defendant now Appellant. The Appellant’s counsel filed a notice of intention to defend with a supporting affidavit after being served with the court process.

    On the return date, both counsel addressed the Court based on the affidavit evidence filed by them. The Respondent argued that judgment be entered in his favour,  but it was the contention of the Appellant  that the matter be transferred to the general cause list. Judgment was entered in favour of the Respondent.

    Dissatisfied, the Appellant appealed to the Court of Appeal through a Notice of Appeal filed containing one ground of appeal wherein two issues for determination were raised as follows:

    1. Whether the case before the trial Court was properly brought under the undefended list inaccordance with the provision of Order 23 Rule1 of the High Court (Civil Procedure Rules)1988 of the defunct Bendel State now applicable to Delta State.
    2. Whether the failure by the Respondent tocomply with the provision of Order 23 Rule 1 ofthe High Court (Civil Procedure Rules) 1988 ofthe Defunct Bendel State now applicable toDelta State, is a fundamental defect capable of rendering the Writ of Summons and consequently the proceeding null and void.

    The Respondent in his brief identified one issue for determination, the Court however adopted the first issue identified by theAppellant.

    Appellant’s counsel submitted that the procedure under Order 23 Rule 1 of the High Court (CivilProcedure Rules) 1988 of the Defunct Bendel State applicable to Delta State is a special procedure ofplacing certain category of cases under the undefended list, to facilitate expeditious determination of non-contentious cases. Counsel further submitted that the decision to place a case on the undefended list is a judicial function of a presiding judge who is empowered to exercise his discretion after giving due consideration to the processes before the Court.

    Appellant’s counsel posited that the Writ was markedas undefended before the order was given and thattakes away the jurisdiction of the trial judge to hearthe matter. See Nwakama v Iko L.G.A ofCross River &Ors. (1996) DTLR pg 112 at 113ratios 1 & 2, Drexel E and N Res v Trans Int’lBank Ltd (2009) Vol. 15 W.R.N pg 1 at page 10ratio 2, JagalPharma Ltd v Hussaini (2008) 14W.R.N pg 160-167 ratios 1-6.

    Counsel further contended that the Respondent hasto first apply to Court to list the matter asundefended and the grant of such application is acondition precedent to the exercise of the Court’sjurisdiction and as such, the lower Court lackedjurisdiction to entertain the suit since the provision ofOrder 23 was never complied with by theRespondent. The exercise of the Court’s discretion inthe matter was never sought and granted. Counselcited ACB Int’l Bank Plc v Out (2008) All F.W.L.Rpt 406 pg 1817 at 1820 ratio 2, Confex Limitedv Nigeria Arab Bank Limited (1997) 2 N.W.L.R(Pt. 496) pg 643 ratio 1; (1997) LPELR-882(SC), City Eng (Nig) Ltd, vNAA (1999) N.W.L.R (Pt. 625) pg 76 ratio 1,2,6; (1999) LPELR-867(SC)and Drexel E and N Res v Trans Int’l BankLimited (Supra).Appellant’scounsel urged this Court to allow the appeal.

    Respondent’s counsel, argued that there is nothing under Order 23 Rule 1 of the HighCourt (Civil Procedure Rules) 1988 of the defunctBendel State as applicable to Delta State thatrequires an applicant for a Writ of Summons underthe undefended list to apply directly to the judge orany other person than the registrar for the issuance of a Writ of Summons as provided for in Order 5 Rule1 of the High Court (Civil Procedure Rules) 1988.

    Counsel submitted that the Respondent is only required to complete and submit the pro forma Writ to the registrar of the Court who will determine, bythe accompanied documents, whether the Writ is oneto be placed on the general cause or undefended listwho, based on the supporting affidavit, can infer that the case is one the Respondent wished to haveplaced on the undefended list.

    Counsel insisted that in this case, the Writ of Summons was placed on the undefended list upon the order of the Court and theWrit remains a valid Writ of Summons. Counsel cited Waade Investment Nig. Ltd &Anor v TradeBank Plc(2006) All F.W.L.R. Pt 336 pg 352and Order 5 Rule 1 of the HighCourt (Civil Procedure Rules) 1988 of the DefunctBendel State now applicable to Delta State.Counsel argued that it is the registrar or any otherofficer of the Court that marks the Writ “undefended”and Appellant’s position that it is after the Court Order is made that the Writ of Summons is enteredunder the undefended list procedure is deemedissued is fallacious.

    That the trial judge is notconcerned with the issuing of the Writ of Summonsbut with the placement of the Writ in the appropriatecause list for hearing. Counsel cited Order 23 R 1. Respondent’s counsel argued that even if the Writwas marked before the Order of Court was given; it does not invalidate the Writ.

    Counsel cited Abayomi&Anor v Attorney General Ondo State (2007)All F.W.L.R. (Pt. 391) Pg. 1683 at 1686 R.7 & 8,and said that even if the Writ in this case ought notto have been issued before the Order of the trialjudge placing the Writ on the undefended list, thefact that there is no appeal against the Order madeon the 26/05/09 in favour of the Respondent, theCourt should apply Order 2 R. 1(1) of the High Court(Civil Procedure) Rules of the defunct Bendel Stateas applicable to Delta State and treat the situation asan irregularity which will not nullify the proceedingsor any document, judgment or order given by thetrial Court and as such, the Appellant has waived hisright to complain. Counsel cited Ramadan Nigeria Limited &Anor vAfribank Plc. (2005) All F.W.L.R (Pt. 285) pg482 at 486 R. 8 and 9, Barr. EdwardEhimwenmaOsifo&Anor v Okogbo CommunityBank Ltd (2007) All FWLR (Pt 372) pg 1803 at1810 R. 9 and 10, Ezekiel Okoli v MorecabFinance (Nig) Ltd (2007) All F.W.L.R (Pt. 369)pg 1164 at 1170 R. 10 and 11; (2007) LPELR-2463(SC) and urged thisCourt to dismiss the appeal.

     

    Resolution

    The Court stated that the rules provide that a suit may be placed by thetrial Court on the undefended list where it is inrespect of a claim to recover a debt, liquidatedmoney demand or any other demand where the debt is clear and there is no defence against it after perusal of the affidavit filed by the defendant in support of the notice of his intention to defend the suit.

    The Court reviewed the facts on record and the sole ground of appeal and stated that the Appellant who was defendant at the trial Court is not disputing the amount of money or in any other way trying to negate the claim; his complaint is with the regularity of the process the Respondent used at the trial Court to activate judicial process to get the money back. The Court set out the following steps to be followed by the applicant as plaintiff to activate the undefended list procedure thus:

    1. An application must be made to the Court for the issuance of a Writ of Summons. (Ostensibly, the application was made hence the issuance of the writ by the Registrar filed on 18/05/09).
    2. The application must be to recover a debt, liquidated money demand or any other claim. (The endorsement on the writ showed a demand for the liquidated sum of N10,488,678.80).

    iii. The application must be supported by an affidavit setting forth the grounds upon which the claim is based. (The affidavit filed with the motion ex-parte set out the factual basis of the claim in support of the writ).

    1. The affidavit must state that the deponent believes the defendant has no defence. (Paragraph 12 of the affidavit declared that the defendant has nodefence to this suit).
    2. The Court should enter the suit for hearing on the undefended list if it believes there is indeed no defence. (In this case, after considering the motion ex-parte on 26/05/09, the trial Court declared that the suit be placed on the undefended list, marked undefended and all processes served on theAppellant who was the defendant).
    3. The Court shall mark the writ of summons accordingly. (In this case, the writ was marked “undefended”)

    vii. The Court shall set a suitable date for hearing. (The Court set a date- 11/06/09 for hearing as shown on the order). See Nkwo Market Community Bank (Nigeria) Ltd v Paul EjikemeUwaabuchi Obi (2010) LPELR-2051 SC; (2010)14 NWLR (Pt.1213) 169 S.C.

    From the above, the Court held that it is clear that the general position is that a Writ of Summons should be marked undefended by the Court before it be placed on the undefended list. See Bayero v Mainasara&Sons Ltd (2006) 8 NWLR (Pt. 982) Pg. 391; (2006) LPELR-75587 CA, Nwakanma v IkoLocal Government of Cross Rivers &Ors(Supra), Enye v Ogbu(2003) 10 NWLR (Pt.828) Pg. 403; (2003) LPELR-7152 CA, Obaro v Sale Hassan (2013) LPELR-20089 SC.

    Relying on the authority of Olubusola Stores v Standard Bank (1975)LPELR- 2610; (1975) 1 All NLR 125; (1975) 4SC 37,  the Court stated that it is clear that a plaintiff starts the processby applying for a Writ of Summons. The Writ must be filed with a motion on notice supported by affidavit. That it is that same Writ that would be markedundefended AFTER the Order of the Court and served on the Defendant along with other processes. That EveryWrit is issued by the Registrar of the Court.

    The Court agreed with Respondent’s counsel that the purport of Order 23 is not to mandate the judge to issue a Writ of Summons but the placement of the Writ in the appropriate cause list for hearing. In essence, what the trial judge did was not issuance of Writ of Summons on the undefended list by the Order made on the 26th May, 2009. See WaadeInvestment Nig. Limited &Anor v Trade BankPlc (Supra).

    It was held that there is a presumption of regularity in favour of the Writ of Summons that it was marked after the Order had been given by the trial judge and not before and that even if the Writ was indeed marked ‘undefended’ by the Registrar before the Order was given, the act hasbeen regularised by the Order of Court given on the26th May, 2009. That it is trite that the breach of practice and procedurecan only render a proceeding irregular and not a nullity. See Saliba v Lababedi (1972) 12 S.C.197; (1972) LPELR-2993(SC) Agbakoba v INEC (2008) 18 NWLR (Pt.1119) 489 SC; (2008) LPELR-232 SC.

    In the circumstances, the sole issue for reasons stated above was resolved against the Appellant. The appeal was dismissed.

     

    Edited by LawPavilion. Citation: (2015) LPELR-25585(CA).