The Nation Newspaper

Category: Law

  • Their first day in court

    Their first day in court

    The court is open to all – judges, lawyers, litigants and spectators. While judges and lawyers know the rules of the game, the others are novices. ROBERT EGBE writes on some Nigerians’ experiences on their first day in a courtroom.

    I was afraid to cough – Samson Sadiq, Litigation Officer, Surulere, Lagos

    •Sadiq
    •Sadiq

    The first time Samson Sadiq set foot in a court of law, he knew he had to be very careful. He had convinced himself he could be made to pay a heavy price for any indiscretion before the judge. So cautious was he that he was even afraid to cough.

    He told The Nation: “I can’t remember the year I first entered a courtroom, but I remember it was at the Lagos High Court before the Hon Justice Muftau Olokoba. The judge handled the matter in a very nice and coded manner. He was very humble and had a transparent way of giving judgment. On this first day, I didn’t know the do’s and don’ts, so I had to conduct myself very well. I sat quietly in court, patiently watching. When I needed to cough, I had to go out because I was thinking if I coughed in court and the judge heard me, he would say something. I was terribly afraid, so I conducted myself in an orderly manner. That was my first experience in court.

    I heard that judges were very harsh – Ayobami Odole-Akinyemi, student at Bowen University

    Ayobami Odole-Akinyemi could not have imagined the events that played out during her first day at an Ikorodu, Lagos, magistrate’s court. She came prepared to find a stern-looking magistrate, but was pleasantly surprised by the jovial atmosphere.

    “The first time I entered a courtroom was on July 2, 2015. It was a magistrate’s court at Ikorodu (Lagos), and it was actually very interesting because I had always thought – according to what I had heard in school – that judges were very harsh, and (for) any little thing they could just throw you out of the courtroom. But for this one I found the magistrate to be very relaxed, because he was very funny; he was even cracking jokes. Everything was not too serious, and those who wanted to go out were allowed to, and stuffs like that. He wasn’t harsh at all, and the lawyers were okay too. “I didn’t fall victim of the magistrate’s anger,” she told The Nation, “but another day I was in court when someone’s phone rang and it was taken from him. By then I had already known that when you are in court, you have to put off your phone, so, I was prepared.”

  • CJN bars politicians from home, office

    Since the news of Rivers State Governor Nyesom Wike’s unscheduled visits to Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, broke, it has been the talk of town. Last week, Justice Mohammed moved fast to stop such visits in future. He barred politically-exposed persons from visiting his residence and office. Henceforth, his security detail from the Department of State Services (DSS) and police orderly will be part of his interaction with “politically-exposed lawyers”. Is the CJN’s directive in order? Under what cirtumstances can a politician visit a judge? ADEBISI ONANUGA sought lawyers’ views.

    •Lawyers hail decision

    The Chief Justice of Nigeria (CJN) is not just any judicial officer. He is the foremost judge in the land
    and controls all other judges. So, like Caesar’s wife, the CJN must be above board.

    CJN Mahmud Mohammed knows too well that he occupies a delicate post and that he should distance himself from anything that will tarnish his image.

    This may be why he moved fast last week to ensure that he keeps politicians at bay following Rivers State Governor Nyesom Wike’s unscheduled visits to him on July 6 and 8. The governor did not see His Lordship, but the visit sparked a major row. To many, the visit must be in connection with Wike’s governorship election dispute at the tribunal.

    But the governor’s Special Assistant on Media and Public Affairs, Ipunabo Inko-Tariah, said Wike wanted to discuss the lingering crisis in the state’s judiciary, among other issues.

    However, in a bid to protect the judiciary and stave off pressure over electoral disputes, Justice Mohammed barred politicians from visiting him.

    The CJN refused to accede to requests for courtesy calls by governors and legislators who had petitions pending against them at election tribunals and the courts.

    He also warned High Court judges and other judicial officers to stay away from politicians as they strive to discharge their duties without fear or favour.

    Where a lawyer who is politically-exposed  is to meet with the  CJN, security operatives must be present during such interaction.

    The directive is the first of its kind by a CJN and will forestall attempts to drag the judiciary into politics.

    The All Progressives Congress (APC) in Rivers has dismissed the governor’s explanation. Its spokesman Chris Finebone said: ”The excuse by the governor that his visit had something to do with the matter of appointment of Chief Justice for Rivers State flies in the face. That was a mere facade. We understand how government business works and the governor needed not to personally pay any visits to the CJN over that matter in the way it was done.”

    Finebone said the APC was aware of Wike’s visit to the CJN but decided not to make it a media issue and based on the party’s unflinching belief in the CJN’s integrity.

    The party asked the governor to desist from secret visits to the CJN with a view to influencing the outcome of election petitions in various tribunals.

    The office of the CJN, through its media aide, Ahuraka Yusuf Isah, clarified that no meeting took place between the CJN and the governor.

    Isah said the CJN “is veritably committed to upholding the integrity, neutrality and independence of our Judiciary”.

    But political observers are contending that as officers in the temple of justice, the offices and residences of judicial officers should not be an all comers affairs but must be insulated from politicians.

    They also reasoned that there is the need to effectively protect the judiciary’s sanctity and impartiality.

    Is the CJN’s directive in order? Does the Code of Conduct for Judicial Officers prohibits such visits?

     

    What the code says

     

    Rule 1 of the Code says: “A Judicial Officer should avoid impropriety and the appearance of impropriety in all his activities; A Judicial Officer should respect and comply with the laws of the land and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.”

    On Social Relationships, the Code says: “A Judicial Officer must avoid social relationships that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officers’ ability to decide cases impartially, or that bring disrepute to the Judiciary.”

    The Code added: “ A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned…”

    Lawyers are of the view that the restriction is welcome and is in line with the oath of office judges swore to uphold.

     

    Lawyers speak

     

    •Ngige
    •Ngige

    To Chief Emeka Ngige (SAN), a former Edo State Attorney-General Chief Charles Uwensuyi-Edosomwan, Dr. Joseph Nwobike (SAN), Lagos lawyer Olukayode Enitan and Executive Director Access to Justice (AJ) Joseph Otteh, the order is a step in the right direction.

    Ngige said the directive is not only commendable but timely.

    Uwensuyi-Edosomwan (SAN): “It is a welcome development but the circumstances

    •Edosomwan
    •Edosomwan

    that would make the CJN to come out to give such directive is better imagined than real.

    “Nigerian politicians have no respect for the institutions at all. All they are interested in is their selfish agenda. I think the CJN has made a correct call. There is need for us to protect the integrity of that office and that of other judges as well.”

    Nwobike  said the entire members of the judiciary should be protected from unholy visitations and interactions by persons with potentially conflicting interests.

    “The foregoing notwithstanding, it is not being suggested that politically exposed persons and lawyers cannot meet with or visit members of the judiciary in respect of official matters,” he said.

    •Enitan
    •Enitan

    Enitan said the CJN’s directive cannot be faulted.  ”A visit to any judicial officer by a public officer  for official purposes and in public glare is perfectly in order.

    “However an official visit by a potential or  existing litigant  who is a public officer would definitely raise eyebrows but a private visit raises alarm bells even though the judicial officer may be totally unaware of the visit as has happened in the instant case.

    “The simple reason is that it suggests to the members of the public the possibility of an unconscionable relationship, and as you know, perceptions are very important, particularly in the judicial process.

    “There are rules that a judicial officer is to conduct himself by and whilst none of the Rules specifically prohibit such visit, the clear intendment of all the Rules prohibit a Judicial Officer from doing anything that will raise a question of impropriety or the appearance of impropriety or partiality or prejudice in all his activities whether privateofficial (judicial and administrative) or social.

    •Otteh
    •Otteh

    Otteh said it is possible some of the CJN’s predecessors may have practised a similar policy of avoiding visits by political office holders although they practised some quiet diplomacy around it.

    “I think this is a legitimate resolution: visits to the CJN by politically-exposed persons is fraught with risks that adverse perceptions may be drawn from such visits by members of the public.

    “Rightly so, particularly when it is remembered that these persons may have litigations in courts and someday those litigations may reach the Supreme Court.

    “Even where they don’t, the CJN has come to be regarded, rightly or wrongly, as being capable of exercising some leverage over how justice services are mediated or delivered in courts nationwide,” Otteh said.

    To him,  no CJN worth his salt would want to influence judicial outcomes in other courts, but that possibility is not a “never heard of circumstance in our recent history.”

     

    What should be done

     

    Ngige said there is an urgent need for review of Code of Conduct for Judicial officers to take care of this type of ‘strange’ visits.

    “In the same vein, spouses of politicians in our courts should be recused from hearing political cases in their courts,” he suggested. Otteh believes the CJN’s decision will help boost public confidence that courts can be trusted to decide cases on the basis of facts and law before them, and not on the basis of “directives from above”.

    “The Nigerian public needs that reassurance,” Otteh added.

     

     

     

  • Court refuses church’s bid to nullify order

    An Ogun State High Court sitting in Sagamu has dismissed an application by  the Registered Trustees of the Redeemed Christian Church of God (RCCG) seeking to set aside an order restraining it from building on a piece of land in Odofin Village,  Shimawa Road, Sagamu Local Government Area.

    The trustees sought an order setting aside an interlocutory injunction made against it in April. They also asked for an order setting aside the service effected on it for not  complying with Section 97, 98 and 99 of the Sheriffs and Civil Processes Act, LFN, 2004.

    UBA Co-Operative  and Multipurpose Society had approached the court seeking for declarative reliefs and possession of the land in dispute against the defendant in the suit  N0. HCS / 01 / 2015.

    The Cooperative society had alleged that the defendant illegally invaded and demolished its property acquired from Olowoto-olisa Chieftaincy Family years ago.

    It claimed that the demolition was done on the  November 28, 2014 with the assistance of one Alhaji Taoreed Farounbi (aka Alado) and  some hoodlums who invaded the land and carried out the act.

    The claimant also stated that Baale of Mowe and Baale of Imedu nla were also among those who invaded its property.

    On April 1, 2015, Justice Oshinuga had granted order of interlocutory injunction against the defendants in the suit.

    However, on April 7, 2015 the defendants had approached the court vide a motion on notice seeking to set aside the orders and to also set aside the service effected on the defendant.

    Counsel to the  claimants,  Omodele also filed its counter affidavit with a written address opposing the defendant’s motion on notice.

    The defendant did not file a reply affidavit or reply on point of law to the claimants opposition.

    The trial judge heard the defendant’s application and after taking  arguments from both parties and adjourned for ruling. Delivering  his  ruling at the resumed hearing of the matter last week, the trial judge, Justice Oshinuga,  dismissed the application for lack of  merit. The court  awarded N10,000.00 cost against RCCG for wasting the time of the court and ordered it to file memorandum of appearance and its statement of defence in the suit brought against it by the UBA Co-Operative  and Multipurpose Society.

    The court held that substantial justice would not be done on the matter if it relied only technicalities. The court stated that the purpose of service is to get the defendant informed of the case in court. Justice Oshinuga therefore held that  the service of the originating court process on the General Overseer of RCCG, who is a principal officer of the church, was proper and that  it substantially complied  with Order 9 Rule 3 of the Rules of the court and that the fact that the claimant failed to obtain  the leave of the court to serve outside the jurisdiction does not vitiate the suit.                                                             The court noted that the defendants had up to seven days under the rules of the court to react to  motion for interlocutory injunction after service but chose not to come before the court until the order was made.

    The trial judge noted that  RCCG hid under the 30 days rules but only filed a motion on notice to set aside the orders of the court and the service of the originating processes.

    The court held that the service made by the claimants is a proper service and that  under Section 99 of the Sheriffs and Civil Processes Act, it is the duty of the court registry to endorse writ of summons and not that of the litigants or their counsel and not doing so cannot be visited on the litigants.

    “The defendant cannot enjoy the favour of this court”,  the court held adding, “It is not the law that the defendant should not enter appearance either conditionally or unconditional which it failed to do. The defendant did not come properly before the court and the motion on notice dated April 7, 2015 is not proper. The application is accordingly dismissed”.

    Justice Oshinuga also adjourned till September 10, 2015 for hearing of the contempt proceedings filed by the claimants through their counsel, Yemi Omodele against the church.

    Omodele had prayed the court for the  contempt proceedings to be heard during long vacation of high court judges.

    However counsel to the defendants, Olumuyiwa Obanewa, opposed the request  and urged the court for an adjournment to enable them file necessary papers for the contempt proceedings against their clients. The court granted his prayer and adjourned the matter accordingly.

     

     

     

     

     

     

     

     

  • Can Buhari appoint INEC acting chairman?

    Can Buhari appoint INEC acting chairman?

    Lately, there has been controversy as to whether the President’s powers to appoint a substantive Chairman for the Independent National Electoral Commission (INEC) also includes powers to appoint anyone to act in an acting capacity. This intervention is designed to contribute to the raging debate as well as offer insights into the legal position having regard to the relevant statutory enactments and provisions on the subject matter.

    The powers to appoint a substantive Chairman of INEC are regulated by Sections 153(1) and 154 (1) (3) which provide as follows:

    153 (1) “There shall be established for the Federation the following bodies, namely:

    (a)     Code of conduct Bureau;

    (b)     Council of states;

    (c)     Federal Character Commission;

    (d)     Federal Civil Service Commission;

    (e)     Federal Judicial Service Commission;

    (f)      Independent National Electoral  Commission;

    (g)     National Defence Council;

    (h)     National Economic Council;

    (i)      National Judicial Council;

    (j)      National Population Commission;

    (k)     National Security Council;

    (l)      Nigeria Police Council;

    (m)   Police Service Commission; and

    (n)     Revenue Mobilization Allocation and Fiscal Commission; 154(1 & 3) “Except in the case of ex-official members of where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate … in exercising his powers to appoint  a person as Chairman or member of the Independent National Electoral Commission, National Judicial Council, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State”

    The summary of the above constitutional provisions is that the President retains the power to appoint INEC substantive chairman subject to confirmation by the Senate after consulting with the Council of State. Therefore, the power of the President to appoint a substantive Chairman of INEC is clearly not in doubt.

    The next question is whether the outgone Chairman of INEC, Professor AttahiruJega was entitled to assign responsibilities to anyone within the INEC hierarchy to take over his responsibilities pending the time anyone would be appointed to act in acting capacity and before the appointment of a substantive chairman? The answer to that query can be resolved by reference to Section 160(1) of the 1999 Constitution (as amended) which provides as follows:

    160(1) “subject to subsection (2) of this section, any of the bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its function.”

    The clear implication of the foregoing is that Professor AttahiruJega could only delegate such powers to anyone with the prior express approval of the President or else the action would be unconstitutional.

    However, the next question is whether the President can appoint anyone as Acting Chairman of INEC as he had done recently? There appears to be no clear answer to this controversy from constitutional provisions. However, reference can be made to the provisions of Interpretation Act to resolve the controversy.

    Sections 11(1)(a, b,c) and 11 (2) on powers of appointment conferred by an enactment generally provides :

    11(1)(a, b,c) “Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes:

    (a) Power to appoint a person by name or to appoint the holder from time to time of a particular office;

    (b) Power to remove or suspend him;

    (c) Power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint –

    (i) To reappoint or reinstate him;

    (ii) To appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.

    (2) A reference in an enactment to the holder of an office shall be construed as including a reference to a person for the time being appointed to act in his place, either as respects the functions of the office generally or the functions in regard to which he is appointed, as the case may be.”

    Clearly from the above, powers to appoint include power to remove or suspend, power to reappoint or reinstate and power to appoint in an acting capacity. Therefore, President Buhari clearly has powers to appoint an Acting Chairman of INEC by virtue of the provisions of Interpretation Act.

    It would seem that on the strength of the provisions of the Interpretation Act, such an appoint in an acting capacity pending the appointment of the substantive Chairman of INEC would not require prior Senate approval  as it arises by virtue of the express powers conferred on the President by constitutional provisions. It is only when such appointment relates to a substantive position of the Chairman of INEC that the Senate approval must be sought and obtained before the appointment would be deemed valid and constitutional.

    The controversy as to whether President Buhari has the powers to appoint an INEC Acting Chairman pending the appointment of a Substantive Chairman should therefore be regarded as closed.

  • 53 convicted in four years for copyright offences

    53 convicted in four years for copyright offences

    No fewer than 53 persons have been convicted in four years for piracy and violation of copyright laws, Director-General of the Nigerian Copyright Commission (NCC) Afam Ezekude, a lawyer, has said.

    He told newsmen that over 20 containers of pirated good have been seized within the period.

    The convictions were secured at various divisions of Federal High Court for film, book, music, cable and software piracy.

    The sentences range from fines of up to N250,000 to maximum terms of imprisonment without the option of fine.

    “It is instructive to note that prior to 2011 the commission did not secure up to 10 convictions throughout its existence from 1989 to 2010.

    “NCC is currently prosecuting about 172 criminal copyright infringement and civil cases at various divisions of the Federal High Courts,” Ezekude said.

    According to him, it was all towards realising NCC’s vision to harness the potentials of creativity for national development; and mission to advance the growth of the creative industry through the dissemination of copyright knowledge and efficient administration and protection of rights.

    On whether NCC has achieved its mandate so far, Ezekude said: “To a very large extent we have been able to fulfil our mandate. The primary mandate of the Commission is enforcement and prosecution of copyright offenders and in those two key mandates we have done a significant lot.

    “We have had a very good working relationship with the Nigerian Customs Service (NCS), which has led to the seizure of over 20 containers which is unprecedented in the history of this Commission.

    “Some of these convictions are not just a slap on the wrist of the offenders but severe prison sentences for Copyright offences. We intend to continue to prosecute copyright offenders,” he said.

    On enforcement challenges, Ezekude said his men have suffered attacks during raids at markets but will not relent.

    “We have got to realise that this is a risky job. Wheen you go to places like Alaba International Market in Lagos, you don’t expect that you are going to have an easy ride because these people see this kind of piracy as a way of life and they are ready to do anything to protect their so called means of livelihood.

    “But we have a job to do and we will continue to do our best against offenders so that the copyright owners can reap the fruit of their work and investment.

    “The pirates should know that in the last four years it has not been easy for them and the next four years while I remain in charge, we are going to ensure that we make their lives absolute hell.

    “So my advice for them is to find another day job because the people at the NCC are more serious than ever before to make sure that Copyright owners are protected and the owners of Copyrights get the benefits of their talents and investments so pirates should beware.”

    Ezekude said an effective copyright regime facilitates development through foreign direct investment, job creation, access to knowledge, information, transfer of technology, trade, services, domestic innovation as well as research and development.

    Recounting NCC’s recent raids, he said: “The commission carried out the public burning of 722,000, 000 units of pirated copyright works and contrivances estimated at N6.5billion, comprising literary, musical, film works and contrivances, including those from the broadcast industries, which were confiscated between 2007-2011.

    “The purpose was to demonstrate the commission’s commitment to zero tolerance policy on piracy and send a warning signal that piracy would no longer be a profitable venture. We conducted 235 anti-piracy surveillances in piracy endemic locations across the country.

    “The commission carried out 201 strategic anti-piracy operations against book, software, broadcast, film and music piracy in different infamous piracy hotbeds across Nigeria, including Alaba International Market, computer village Ikeja, Ajegunle, Ojuelegba and Ijora in Lagos State; Ariara Market Aba, Abia State; Ochanja market, electronic market, and upper Iweka Market  in Onitsha, Anambra State; as well as other markets in FCT Abuja, Akwa Ibom, Bayelsa, Benue, Cross Rivers, Edo, Enugu, Ebonyi, Kano, Kaduna, Kogi, Niger,  Zamfara, Plateau, and so on. We arrested 443 suspected pirates.

    “We have removed 6,081,384 assorted pirated copyright works comprising of books, software, DVDs, VCDs, CDs, MP3, and so on, from different piracy outlets and seaports across Nigeria with estimated market value of N6, 423,221,600.

    “This value of the materials removed in the course of the anti-piracy operations, represents income that would have been lost by government and copyright owners across the country to people who indulge in the criminal and nefarious act of copyright piracy.

    “Then there is the unprecedented confiscation of a total number of 20 40ft/20ft containers of infringing DVDs, VCDs and books of foreign and local titles at different seaports across the country, in collaboration with the NCS.”

    Ezekude said NCC’s challenges include the increasing cost of overhead operations against drastic reduction of budgetary allocations; inadequate human and institutional capacity, low level of awareness arising from lack of funds to execute public enlightenment campaign, lack of office accommodation and communication facilities; insufficient operational vehicles and rising cost of prosecution.

    Despite the challenges, its efforts, he said, has resulted in over 50 per cent increase in sales and profit, business expansion and job creation in the copyright–based industries and has boosted tax earnings from the industry practitioners.

    For instance, he said the Copyright Society of Nigeria (COSON), a collecting society for music and sound recordings, in the last four years, shared over N240million to their members as royalty.

    Nigeria, he said, is more favourably perceived in the global fight against copyright piracy, having been consistently removed from the United States 301 List of countries that are not seriously addressing copyright piracy and other intellectual property crimes.

    To boost the digital enforcement skills of its staff, Google trained 210 of them on Internet Piracy and Digital Literacy Programme; while several of its staff has undergone numerous training.

    NCC has also conducted anti-piracy sensitisation campaigns on the commission’s zero tolerance for piracy at different piracy endemic markets, he said.

    “In order to improve the protection and market viability of Nigerian creative products, the commission developed and launched an electronic platform for registration of copyright works, the Nigerian e-Copyright Registration System (NeCRS),“ Ezekude said.

  • Lawyer advocates specialised courts for commercial disputes

    Lagos lawyer, Babatunde Fagbohunlu (SAN), has said   specialised courts are better for resolving commercial disputes than the conventional courts.

    Fagbohunlu, who specialises in commercial litigation and is a member of the National Committee on the Reform and Harmonisation of Arbitration/ADR Laws in Nigeria, listed the advantages of such courts to include sensitivity of the judges in such courts to the importance to the economy of quick resolution of commercial disputes.

    “First of all, specialised courts mean enhanced efficiency,” Fagbohunlu said, “You would have a group of judges or a team of judges who are specialised in handling commercial disputes, who have an understanding of what the needs of the commercial community are and who have sensitivity to the importance to the economy of quick resolution of commercial disputes.

    “And you can only have those qualities when you have a team of judges who are focused specifically on resolving commercial disputes, in the sense that they belong to a specialised commercial division.”

    Fagbohunlu, who regularly represents Nigerian as well as foreign and multinational clients in arbitrations administered by arbitral institutions such as the International Court of Arbitration of the International Criminal Court (ICC), also addressed the question of whether arbitration is cheaper than regular litigation.

    He said: “Is arbitration really cheap? Is mediation and reconciliation really cheap? I think it’s very easy to say when you look at the type of fees that arbitrators charge today and when you compare that to the fact that when you go to court, you pay very minimal fees to file your case, you don’t have to pay the judge to hear your case, he’s a public servant and is paid by the state.

    “When you think about that, you’re likely to come to an intuitive conclusion that arbitration is definitely more expensive than litigation, but what needs to be borne in mind is this; if you have a good case, and you take it to arbitration and win, you are likely to recover all that you have expended, unlike in the courts where there’s a lot of controversy as to whether if I win a case against you, then I’m entitled to recover from you all the money I paid my lawyer. So, there’s controversy as to whether that can happen in court. With arbitration, it is specifically spelt out in the Arbitration Act that I can recover all the fees I paid to my lawyer. I can recover it from you because you lost the case.”

  • NBA Ikorodu plans co-operative society, lawyers’ estate

    The Nigerian Bar Association (NBA), Ikorodu Branch, is set to establish a Co-Operative Society and Lawyers’ Estate for its members.

    The Chairman of the branch, Adedotun Adetunji, who made this made this known during the Annual General Meeting (NBA) of the body, also said the branch had  amended its bye-laws, adding that the amended laws take immediate effect.

    He said when work on the Co-operative Society was completed, the 166 lawyers on the association’s register, as well as new members, would have a befitting Lawyer’s Estate.

    The AGM, which was the 10th to be organised  by the branch since its formation, and which held at the branch’s secretariat in Ikorodu, featured the adoption of the branch’s amended By Laws, the adoption of its 2014/2015 Audit, Treasurer’s and Secretary’s, and Chairman’s Reports respectively, as well as a public lecture.

    The reports highlighted the Executive Committee’s activities in the past one year, since being sworn into office on July 7, this year. In April, last year, the branch made history by equipping the Ikorodu Court House with 24-hour’ internet services, becoming the first NBA branch in Lagos to do so.

    The chairman gave an update on the branch’s website, urging past chairmen to supply the information required by the secretariat, so that the website can be up and running.

  • Ex-Editor hails ‘Top 100 Lawyers’ list

    Ex-Editor hails ‘Top 100 Lawyers’ list

    A former Chambers Global editor,  Mr. Lloyd Pearson, has praised the listing of “Nigeria’s Top 100 Lawyers”  by City Lawyer Magazine.

    He described the publication  as a brave effort by its editor Emeka Nwadioke, a Lagos-based lawyer.

    Announcing the ranking on his official website, Pearson who held senior editorial positions at leading legal directories in the United States and UK, recalled that he had taken interest in the ranking since 2014.

    “Last year I wrote about a proposed new survey of the top 100 lawyers in Nigeria. News of the planned list – the first to be published in Nigeria by a native company – caused a furore locally,” he said.

    Pearson noted that while some “disgruntled younger lawyers” said it was a conspiracy to stop them from competing with older, established names.

    “There were even threats to sue the publishers to prevent the release of the list.”

    According to Pearson who has held senior editorial position at White and Case, the world’s largest law firm, “despite what appeared to be insurmountable challenges, City Lawyer Publishers bravely went ahead and released the results,” adding that the publishers have assured that “print copies are on the way.”

    Hinting on the survey’s methodology, Pearson noted that peer review “was the main way” in which the awardees were determined, saying “Senior advocates in Nigeria were asked the question: ‘If you could not handle a case/brief yourself, to whom would you, with utmost confidence, refer it?’ And the lawyers with the highest number of nominations (were) selected to the list.”

    Pearson has worked on several legal directories including ‘Chambers Global,’ ‘Chambers USA,’ ‘Chambers UK,’ ‘Best Lawyers,’ and ‘Best Law Firms’ survey.

    He later joined Herbert Smith, a leading international law firm,  and moved to White & Case in New York to manage the firm’s global directories programme. He is the industry’s first dedicated law firm directories manager.

    Meanwhile, writing under “Editors’ Pick” in The Global Legal Post, Ms. Catherine Berney said there was “much ado” about the ranking.

    A CEDR mediator and globally renowned governance specialist whose clients include the UK Law Society, Goldman Sachs, and Baker and McKenzie, Berney stated that the publication is envisaged to be “transparent.”

    The full list of the Top 100 lawyers features leading litigators, transactional lawyers and lawyers in the academia who have shaped the legal industry over the years. They include acclaimed litigators Chief Wole Olanipekun (SAN) and Mr. Rickey Tarfa (SAN) and ‘new kid on the block,’ Mr. Adeniyi Adegbonmire who, perhaps as a validation of his ranking, was recently listed among those to be conferred with the rank of Senior Advocate of Nigeria (SAN) in September.

    Others include Nigeria’s oldest surviving Senior Advocate, Chief Richard Akinjide (SAN), Prof. Ben Nwabueze (SAN), Prof. Alfred Bandele Kasunmu (SAN), Chief F. O. Akinrele (SAN) and Chief George Uwechue (SAN). Aside from leading human rights activist, Dr. Olisa Agbakoba (SAN) and renowned arbitrator Mrs. Funke Adekoya (SAN), the non-SANs who also made the list are respected solicitors such as Messrs Asue Igbodalo, Lawrence Fubara Anga and Bankole Sodipo.

    According to Nwadioke, the all-gloss compendium highlighting the career paths and accomplishments of the awardees will be released soon.

    The foreword to the over 100-page compendium was written by renowned Justice Emeritus of the Supreme Court, Hon. Justice George A. Oguntade (CFR) while the Board of Advisors is chaired by Prof. Akin Oyebode of the Faculty of Law, University of Lagos.

  • Unpaid wages: An abuse of labour rights

    Unpaid wages: An abuse of labour rights

    Just when one thinks the ugly past of working without pay, was over for Nigerian civil servants, the workers’ survival and welfare have again come under severe attack for over five months, and this is due to no fault of the workers.

    Ordinarily, the average civil servant is usually paid mere pittance by the state. But even the pittance now seems a luxury as about two-thirds of the states of the Federation are unjustifiably in arrears of civil servants’ salaries and benefits.

    The law seems weak in aiding and rescuing civil servants whose livelihood is being emasculated by their employers. The helplessness of the current situation, in which the civil servants have found themselves, exposes the fundamental limitations of the Nigerian Labour Law.

    The Nigerian Labour Act represents the key framework for the protection of every class of workers including skilled and unskilled workers, private and public workers as defined under Section 91 of the Labour Act. The Nigerian Civil Servant is therefore not excluded from the protection of the Nigerian Labour Act.

    The Nigerian Labour Act not only makes provision for employment issues but also protects wages. Section (7) of the Labour Act provides that a worker should have a written statement that specifies the rate, manner and period of payment of his salary. Section (15) of the Act provides that;”wages shall become due and payable at the end of each period for which the contract is expressed to subsist, that is to say, daily, weekly or at such other period as may be agreed upon. Provided that, where the period is more than one month, the wages shall become due and payable at intervals not exceeding one month”

    The combined interpretation of the provisions of Sections 7 and 15 of the Labour Act above would mean that every employer, inclusive of the government, is bound to issue within three months, a detailed letter of appointment stating the amount of the agreed wages and period of payment.

    Upon fulfilling those responsibilities, the employer shall further ensure that such wages are paid at the agreed time and if the employment subsists for more than a month, then such payment shall be paid monthly. A Month, according to Section 18(1) of the Interpretation Act Cap I23 LFN 2004, is defined as meaning a calendar month reckoned, according to the Gregorian calendar. It would therefore mean employers shall make payment at the end of each Gregorian calendar month.

    Unfortunately, while the Labour Act makes provision for the protection of workers in Nigeria, it has failed to provide any sanction on any person who fails to obey the letter and the spirit of the Act. The non-provision of both penal and civil sanctions is a recipe for anarchy in the labour market especially as to payment of wages in Nigeria.

    Scandalously, the state governments, who ordinarily should be the most protective of their workers welfare, are now the biggest culprits needlessly owing salaries of civil servants for periods up to five months.

    This executive lawlessness is subjecting civil servants to economic hardship, pains and penury. There is no known instance of any of the state governors responsible for this mindless decimation of their workers’ wellbeing having stopped salaries of public officials in the affected states nor have stopped the undeserved and bogus pensions they pay to ex-governors and other public officials as a sign of regard and commitment to their workers salary as first line priority. Not one instance yet, and this speaks volumes of the sense of service lacking in these states some of whose governors just handed over the huge debt portfolio to their successors.

    A government should at all times maintain, and comply with the provisions of the law. This responsibility is one that has been entrusted on them, neither by providence nor circumstances but by the constitution to which all persons, including the government, must submit. Section 1(1) Constitution of the Federal Republic of Nigeria 1999 (CFRN) as amended provides thus “this Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” The Labour Act having been passed by the legislature, pursuant to enabling powers from the constitution, must be obeyed by private and public employers, including the government.

    Any contravention of the Act should therefore be seen as a direct contravention of the Constitution that must not be tolerated by the society, and to which such violators must face the wrath of the law irrespective of their status as private or public organisations.

    Civil servants are the minds through which government responsibilities are undertaken. They ensure the implementation of government policies and directive principles of the constitution. They assist the government in carrying out the responsibilities assigned to her, responsibilities that cannot be subrogated to other sections of the Nigerian society.

    Therefore, every government that is serious about fulfilling the responsibilities that has been saddled on her must ensure that civil servants are properly and timely paid their salaries and benefits. Provision of Infrastructural development need not be at parallel lines, or be mutually exclusive with payment of workers’ salary.

    While it is necessary to commit to infrastructural development, it must be noted by every government that the law does not command the impossible. As such, pretending to undertake misplaced infrastructural elephant projects at the detriment of workers’ basic welfare is an affront on the rights to human dignity of the affected workers.

    The Fundamental Objectives and Directive Principles of State Policy as enshrined in Chapter II of the 1999 Constitution (as amended) does not encourage the starvation of any class of people including civil servants.

    Section 16 (1) of the Constitution provides that the government shall “control the national economy in such manner as to secure the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity.  Section 16 (2) (b) further directs that “the material resources of the nation are harnessed and distributed as best as possible to serve the common good.” It is, therefore, imperative that every government must find a balance between the welfare of the civil servants and the infrastructural development of the society.

    The failure of the government in securing the welfare of the civil servants and the lack of attendant enforceable sanctions and remedy for the mass of affected workers, indicts our Labour Law as too weak to bring the government in check when it abuses workers mass rights as currently being done.

    While a short term resolution is being expected to assuage the needless pains Civil Servants have been put through over the months, it would be necessary to re-evaluate the Labour Act to meet with the new dynamic labour challenges that workers are facing.

    Perhaps, it is time to make payment of workers’ salaries the priority before any public official is paid. If workers cannot be paid, we can as well not pay public officials who are responsible for the proper, or improper, management of the resources in the first place. Sanctions and penalties for defaulters of the Act, which is inclusive of the government, should be better spelt out, and enforced.

    In provision of sanctions and penalties, the amendment must not only criminalise the breach but also provide for compensation for the aggrieved workers. An effective system must also be developed to ensure that such breaches are reported while also providing for the non-victimisation of the whistle-blower.

    Fortunately, the newly inaugurated administration in setting a new agenda for the country has emphasised the indispensable role of the Nigerian worker, and the Labour Unions. It would therefore be instructive that the new government pays proper attention to the plight of the workers and ensure that their salaries and benefits are paid promptly, and likewise must not turn a blind eye to the perpetual refusal of some state and local government to pay salaries of their diverse workers.

    It should ensure, in keeping up with “Change” mantra that it provides for a robust system that ensures a satisfying reward for workers. The new administration must also create a proper monitoring strategy that tracks private employers who also breach the provisions of the Law with respect to prompt payment of workers’ due salaries.

    The new administration must not just seek to create jobs for the unemployed but also seek to keep the employed paid so that the fundamental objectives of the state can be achieved.

    It would be a disaster that the new administration, which has the goodwill of the masses, including the currently oppressed Civil Servants, should fail in providing a comprehensive legal and regulatory framework that ensures the betterment of workers’ welfare in Nigeria.

     

    • Akinpelu is a Lagos based lawyer
  • ‘How to recover stolen funds’

    ‘How to recover stolen funds’

    Babatunde Fashanu became a Senior Advocate of Nigeria (SAN) in 2002. In this interview with ADEBISI ONANUGA, he gives recipe for recovering of stolen funds and bares his mind on other contemporary issues within the judiciary

    The administration of Muhammadu Buhari has promised to recover stolen funds by politicians. How do you think government should go about this?

     

    It is no longer a matter of conjecture that corruption is endemic in this country. I think the problem is so big and if government says it wants to take a wholesome approach to it, it will never do any work. It will not benefit the people in terms of development. It has to be selective; some people are just coming out of government and others were there before. I think they have already set up economic commission under the Vice President to look into some clear cases of financial misdemeanour on the part of some public servants. There are cases where funds were allocated to local government councils, but it didn’t get there or where it did, one tenth gets there. There, the records are shocking and the papers are there. They can easily pick them up. There are also some former governors who have lost their immunity. The best thing to do is to pick them up to provide accounts of their stewardship when they were in government. I think, this is the best time for the Economic and Financial Crimes Commission (EFCC) to come alive, because the anti-graft agency has been virtually asleep for some time now. They can look at the lingering and obviously misleading records of the Nigerian National Petroleum Corporation (NNPC). If it is found that records were messed up, the law takes its course by either EFCC or ICPC taking over the investigations and press charges on those suspected to have had a hand in such a fraud. I am sure that if there is no respect for any person, there will be positive results from the trial.

     

    But the EFCC saddled with fighting corruption has been losing a large number of cases. What do you think can  be done to curtail the rate at which the EFCC loses cases?

     

    They are losing cases because people they take to courts have money to get the finest of lawyers to handle their case. I know EFCC too have SANs helping them in most of their cases, but the system is in such a way that courts favour accused, unfortunately. It is sad that some cases that are obvious still do not get a head way. How can anyone explain that a public officer to whom money was handed over to, ostensibly for general development and the money gets missing without traces? Although it is clear that the money is missing, the burden is still on the accuser to prove that money was given to the accused. This is abnormal. It should have been the reverse. The man who spent money or in whose possession public money allocated to him got missing should have been the one to explain what he did with the money. It is so sad that we have this kind of system in Nigeria. Really, where we cannot change this warped system, we then need a specialised court.

     

    It takes more time to dispense with cases at the Court of Appeal. What do you think can be done to quicken dispensation of justice at this level?

     

    Suspects cannot always appeal a case; there comes a time when the judge will get to the end of the case which is what happens in most civilised climes. Then, like I said, the appellate system too, they need to help them with modern working tools so as to make dispensation of justice faster. I said that because at the Court of Appeal, you still need to compile records; especially as appeals have so much to do with records of what happened at the lower court. The records should be done very fast by installing technical aids so that they could dispense cases fast. So, when you deal with 20 people and they go to jail, and you are able to recover some money, like the former President Olusegun Obasanjo did when he was in government, it will serve as a deterrent to others. Mind you, our constitution still has to be amended to make our justice system perfect or near perfect. If we adopt the legal system; continental laws, in use in countries like France, Germany or the entire European system, it will benefit us.

     

    Which among these international  laws do you think can be borrowed from these countries to make our society better and corruption free?

     

    Personally, I think continental laws are one of them. When you talk of corruption, which like I noted at the start of this interview is endemic and a serious disease requiring serious solution, we mean acts that inhibit the general development of the nation and people of a country. We can retain the common law, but if we must fight corruption we must adopt the continental system. But I know it can be used for political purposes. But if we want to do it, we make good study of it So as not to misuse it. I think it a law that we need to critically look into, especially in our fight against corrupt practices by public officers.

     

    A federal high court in Port Harcourt nullified the elections of local government chairmen in Rivers state but few days after, the National Industrial court gave a ruling reinstating the chairmen. Can the NIC over- rule a federal high court?

     

    It is not possible because though, both are superior courts of record under the 1999 Constitution (subsections (c) to (k) of section 6), their specific jurisdictions are stated in section 257 for the Federal High Court (FHC) while that of the National Industrial Court (NIC) are in section 254(C). But with regard to their powers, they both have the powers of a High Court. So, they are courts of coordinate powers in their respective specified jurisdictions as to subject-matter.

    We all know that when Local Government elections were to be held in Rivers State during the administration of former Governor Rotimi Amaechi, the PDP went to the FHC joining INEC in the suit asking that the voters register be not released to the State Independent Electoral body. Though that was surprising to me because being Local Government elections,  that should concern only the Rivers State Independent Electoral Commission which should ordinarily be within the jurisdiction of the state High Court. But, I haven’t seen the claims as I am not involved in the cases but are relying on what we read in the newspapers and electronic media. So, it depends on how the claims are couched that will determine whether the FHC was the proper court to go. From my deductions, what was taken to the FHC was for a restraining order on INEC so that it would not release the voters register to the State IEC. The court said they should maintain the status quo, but later on, elections were conducted to the state Local Government councils which the PDP claims was in defiance of a subsisting court Order. The chairmen emerged and were sworn in and councils were constituted following the results. So, the case came up again before the Judge who, in his wisdom, nullified the elections upon a complaint that the court Order was breached. Though the opposing argument is that no order was breached because there was no order not to conduct the elections. That was the situation. The new Governor, Nyesom Wike, then dissolved the councils, purporting to appoint caretaker committees upon which some employees of the Local Governments went to the NIC complaining that such action affects their employment and is unlawful and got an Order of the NIC restraining the dissolution of the Councils which runs in conflict with the FHC order . This is so because if you say don’t dissolve the Councils, then the elected ones would continue to stay there.

     

    So, which of the orders of the court should be obeyed in your wisdom?

     

    Both Courts are of competent jurisdiction to make orders whose orders must be obeyed, but they have the same powers as a High Court meaning their power is not superior to the other. Therefore, those affected by the orders can choose which one to obey and your guess is as good as mine as to which parties will obey which order. Of course, that could lead to anarchy, hence, the solution is for the parties to go to the Court of Appeal by appealing against both courts’ orders as they affect them. Fortunately, it seems the FHC case had earlier been referred to the Court of Appeal by the Presiding Judge on point of law referral. The Court of Appeal can be moved to accelerate hearing and give judgment quickly which will then have precedence over both courts’ orders.