Supreme court Justice Nwali Sylvester Ngwuta, will on July 4, at Sir Louis Mbanefo Bar Centre, in Onistsha, Anambra State chair the presentation of Legal works comprising of selected rulings, judgements and reviews of the Chief Judge of Anambra State, Justice Peter N C. Umeadi as part of the activities marking the 60th birthday programme of the Anambra State Chief Judge.
The Governor of Anambra State, Chief Willie M. Obiano will be the special guest of honour. HRM Obidiegwu Onyesoh, Eze Nri Enwelana 11, will be the royal father of the day while the Speaker of Anambra State House of Assembly, Hon. Princess Chinwe Claire Nwaebili will be the guest of honour.
Two weeks before his exit, former President Goodluck Jonathan signed the Administration of Criminal Justice bill into law. In this piece, Prof. Yemi Akinseye-George (SAN) examines the law’s key provisions.
• Continued from last week
Receive evidence by video link. (b) permit the witness to be screened or masked. (c) receive written deposition of expert evidence. (d) any other measure that the court considers appropriate in the circumstance.
The Act also stipulates that anyone who contravenes the provisions of section 232 shall be sentenced to a minimum term of one year imprisonment.
Electronic Record of proceedings
Section 364 provides the legislative backing for court proceedings to be recorded electronically. It states that in certain exceptional circumstances, where the evidence of a technical, professional or expert witness would not ordinarily be contentious as to require cross-examination, the court may grant leave for the evidence to be taken in writing or by electronic recording device.
Similarly, section 362 states that where it appears to the court that a person who is seriously ill or hurt may not recover, but is able and willing to give material evidence relating to an offence and it is not practicable to take the evidence the during trial, the Judge or Magistrate shall take in writing the statement on oath or affirmation of the person. The Judge or Magistrate shall preserve the statement and file it for record.
Compensation to victims of crime
Victims of crimes are often neglected and left without any form of compensation even when the offender has been found guilty and sentenced. The ACJA has addressed this ugly trend by broadening the powers of the court to award costs, compensation and damages in deserving cases, especially to victims of crime. The Act adopted and improved on the provisions of the Criminal Procedure Act and the Criminal Procedure Code.
By the provisions of Section 319 of the ACJA, court may within the proceedings or when passing judgment, order the convict to pay compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant, where substantial compensation is in the opinion of the court recoverable by civil suit. The court may order the defendant to pay a sum of money to defray expenses incurred in the prosecution. The court may also order the convict to pay compensation to an innocent purchaser of any property in respect of which the offence has been committed who has been compelled to give it up. The court may also order the convicted person to pay some money in defraying expenses incurred in medical treatment of any person injured by the convict in connection with the offence.
Non-Custodial sentences
The ACJAin Sections 453, 460 and 468 attempted to address the problem of excessive use of imprisonment as a disposal method by introducing some alternatives to imprisonment. These include the introduction of suspended sentence, community service, parole and probation. It also provides that the court, in exercising its power shall have regard to the need to: (a) reduce congestion in prisons; (b) rehabilitate prisoners by making them to undertake productive work; and (c) prevent convicts who commit simple offences from mixing with hardened criminals.
By virtue of 467 courts may sentence and order a convict to serve the sentence at a Rehabilitation and Correctional Centre established by the Federal Government in lieu of imprisonment. The court in making an order of confinement at a Rehabilitation and Correctional Centre shall have regard to the age of the convict; the fact that the convict is a first offender; and any other relevant circumstances necessitating an order of confinement at a Rehabilitation and Correctional Centre.
The section further provides that the court may make an order directing that a child standing criminal trial be remanded at a Rehabilitation and Correctional Centre.
Service of court processes by courier companies
This is another innovative provision in the ACJA which states that service of court processes may be effected by registered reputable courier companies, recognised and authorised by the Chief Judge. This is to ensure that service of court processes is handled by professionals for efficient delivery of service.
Establishment of monitoring committee
Section 469 of the ACJAestablished a body to be known as the Administration of Criminal Justice Monitoring Committee. Its membership is made up of the major stakeholders of the criminal justice system. By the provision of Section 470, the Committee is to ensure that: (a) criminal matters are speedily dealt with; (b) congestion of criminal cases in courts is drastically reduced; (c) congestion in prisons is reduced to the barest minimum; (d) persons awaiting trial are, as far as possible, not detained in prison custody; (e) the relationship between the organs charged with the responsibility for all aspects of the administration of justice is cordial and there exists maximum co-operation amongst the organs in the administration of justice in Nigeria; (f) collate, analyse and publish information in relation to the administration of criminal justice sector in Nigeria; and (g) submit report quarterly to the Chief Justice of Nigeria to keep the Chief Justice abreast of developments towards improved criminal justice delivery and for necessary action; (h) carry out such other activities as are necessary for the effective and efficient administration of criminal justice.
Conclusion
One of the major improvements brought about generally by the reforms is that conscious effort was made to strengthen the rights of the defendant and reduce delays in the criminal process. Though most of these rights had existed before now, the ACJA 2015 has added emphasis to them and has also ironed out a lot or grey areas that had been long overdue for change. With the passage of this Act, the Criminal Procedure Act (CPA), Criminal Procedure Code (CPC) and the Administration of Justice Commission Act stand repealed.
Justice Olabisi Ogungbesan of a Lagos High Court sitting in Ikeja will on July 10, rule on an application seeking to stay a writ of execution obtained by a judgment-debtor, Jagal Nigeria Limited over a property located at Plot B, Ikosi Road, Oregun Industrial Estate, Ikeja.
A Lagos-based company, Johnson Products Nigeria Limited had filed an application praying the court to set aside the writ of execution obtained by the judgment-debtor.
The new date for the ruling in the application was announced to parties in the suit by the registrar of the court at the resumed sitting of the court on the matter last week. The court registrar had earlier held a brief meeting with the parties during which the new date for the ruling was mutually agreed.
Johnson Products Nigeria Limited had approached the court, praying it to restore them to status quo ante as at April 29, 2015, pending the hearing and determination of its application for re-listing in the Court of Appeal.
Joined as second defendant in the suit is Chief Samuel Agboola Akintan, who is said to have earlier leased the property to Wire Manufacturing (Nigeria) Limited for 20 years, having had a Deed of Conveyance dated 1971.
During the last sitting of the court, the applicant through its counsel, Gabriel Olawoyin (SAN) had told the court that the order of the Court of Appeal upon which the writ of execution was predicated was obtained by deceit.
He contended that the defendant misled the court on the matter.
He argued that as at the time the defendants rushed to obtain the writ of execution, they already had applications seeking for re-listing of their appeal before the Court of Appeal. The defendants, according to him, were duly served with copies of the application and that they duly acknowledged receipt of the documents. “We have three applications, including brief of argument, pending before the Court of Appeal and they filed a counter to every application, which means they have been served”.
Olawoyin had also told the court that his client had eight grounds for bringing its application for stay of the writ of execution before the court and that all the averments in the supporting affidavit of its various processes listed the events in the Court of Appeal that led to the higher court’s order.
He had pleaded with the court that since the averments were not controverted by the defendants in any way, they should be taken as the true positions of things.
But the defendant’s counsel, Qudus Mumuney had opposed the application on the grounds that the prayers of the applicants had no basis in law.
Mumuni contended that the issue before the court was not only the proceedings of February 5, 2015 when the Court of Appeal struck out the appeal of the appellant but the entire proceeding which dated back to 2009. He described the application filed by the applicants as an invitation to review the order of the Court of Appeal, adding that it would amount to calamity of the jurisprudence when a lower court would sit to review the order of a superior court.
Mumuni, however, maintained that the court has no jurisdiction to entertain the application and that the court should throw out the application which he described as abuse of court process.
But Olawoyin had insisted on the jurisdiction of the court not only to grant the prayers of the applicants but also to stay the writ of execution obtained in respect of the disputed property.
Olawoyin also contended that the issue before the court was the writ of execution for which they are praying the court to set aside pending the determination of their application for re-listing of their appeal against the judgment of Justice Ayotunde Phillips, now a retired Chief Judge of Lagos State, which in 2008 granted possession of the disputed property located in Oregun Industrial Estate, Ikeja to Jagal Nigeria Limited.
Johnson Products had dragged Jagal Nigeria Limited before Justice Ayotunde Phillips of a Lagos State High Court over the ownership of the disputed property.
The firm had averred that the Memorandum of Agreement executed by the two parties on April 17, 1980 “effectively transferred Jagal’s interest in the property” to it upon the payment of N1, 340, 000 and that Jagal issued a receipt No.1351 dated June 2, 1982, which stated that the payment is for the assignment of the property in question.
Johnson Products had further averred that Jagal acknowledged its (Johnson Products) ownership of the property in a letter addressed to Ault and Wilborg (Nig) Limited.
But Justice Phillips, in her judgment delivered on July 11, 2008 in the suit delineated ID/1466/98 held that the Memorandum of Agreement transferred no interest in the property to Johnson Products and affirmed Jagal as the owner of the property.
Not satisfied with the decision of the court, Johnson Products Limited, appealed against the judgment on July 16, 2008 and claimed to have filed its Brief of Argument as at December 8, 2010.
However, the matter assumed a new dimension in February 2015 when the matter slated for hearing by Appeal Court, was struck out for want of diligent prosecution.
Johnson Products re-approached the appellate court, asking the matter to be relisted but while the process was ongoing, the defendant (Jagal Nigeria Limited) obtained a Writ of Possession of the court to effect the judgment of Justice Philips against Johnson Product which also affected some interpleaders.
The Director-General of the Electoral Institute, Prof. Abubakar Momoh, has called on stakeholders in the electoral process to join hands with the INEC to evolve a credible electoral system for the country.
Prof. Momoh made the call at the Special Democracy Week Interactive Seminar and presentation of the book, Cases and Materials on Election Petitions and appeals (post 2010). He lauded the INEC for the progress made in the 2015 general elections which resulted in far less number of election petitions than what we had in the country in the past years, let us rethink our our electoral process and engagements.
He said: “ I commend the INEC chairman, Prof. Attahiru Jega for the successful conduct of the elections, but as you know, INEC alone cannot do it. INEC has laid the foundation, it is left for the stakeholders including the media to build thereupon, it is the responsibility of every Nigerian to collaborate with the commission to ensure that we consolidate on the gains made so far, we are not perfect yet and we have to aspire to perfection” Prof. Momoh said.
In his welcome address, the author of the book, Prof. Yemi Akinseye-George thanked participants for making it to the occasion, he circulated a notice from the National Judicial Council (NJC), which frowned at the presentation of books in honour of serving Judges and Justices in the country. Prof. Akinseye-George informed his guests that it was in response to this circular that he cancelled the presentation previously scheduled in honour of the President of the Court of Appeal, Justice Zainab Bulkachuwa (JCA).
“Our electoral system has began to improve, we cannot leave politics for politicians alone. We are making progress though slowly”
Benue State Governor Samuel Ortom has charged the National Assembly to enact quality legislation that would enhance good governance in the country.
He gave the charge when the Speaker of the House of Representatives, Rt. Hon Yakubu Dogara paid him a courtesy call at the Benue State Governor’s Lodge in Abuja.
Governor Ortom listed critical areas of immediate concern as corruption, power supply and security stressing that if legislation is targeted at these areas and enforced the nation would make a quantum leap forward.
He appealed to the Speaker to put the intrigues that led to his emergence behind him and build bridges between the leadership of the All Progressives Congress, APC, and its members.
Governor Ortom described Rt. Hon Iorwase Hembe, member representing Vandeikya/Konshisha federal constituency who led the delegation to see him as a worthy ambassador of the state who had the vision to identify and invest in the leadership qualities of the Speaker.
The Governor described Rt. Hon Dogara as a humble man and urged him to sustain the virtue in his relationship with members.
Earlier the Speaker had appealed to the Governor to invest in building people as that was the most lasting legacy that a leader could leave behind.
He expressed appreciation to Ortom for his support and that of the members of the House from the state which he said contributed to his emergence as Speaker and urged the Governor to put landmark development projects on ground in line with the APC manifesto so that friends and well wishers could come to Benue State to celebrate with him.
Rt. Hon Dogara urged leaders of the party to put the eschew the current bickering and hit the ground running in the provision of democracy dividends to the electorate who voted for change.
On the other hand, the Benue State Government has signed a Memorandum of Understanding with a group of Chinese companies under the auspices of CGC Alliance for industrial and commercial revitalization of the state.
Areas of focus include coal power plant, potable water and irrigation, renovation of agriculture service centers, construction of Makurdi-Guma road, and reticulation of water in Makurdi, Otukpo and Katsina-Ala.
Others are airport and industrial park construction, sugar cane plantation and refineries.
Governor Samuel Ortom signed on behalf of the state government in his office in the Benue Peoples House while Managing Director of the Group, Tony Ye signed on behalf of the companies.
Governor Ortom expressed confidence in the ability of the group to deliver as it had successfully constructed the Otobi and Katsina-Ala water works.
He said although the state owed CGC large amounts of money on the two projects he appealed for understanding while assuring that his administration would do its best to honour contractual agreements.
Managing Director of the group, Mr Ye stated that various companies have teamed up under the alliance in order to handle all infrastructural projects in the state if given the opportunity and expressed appreciation to the Ortom administration for inviting them to partner in the development of the state.
In another development, Governor Ortom has appealed to the Bill Gates Foundation to consider the whole value chain in its approach to promote the cultivation of cassava and rice in the state.
He made the appeal when he received a delegation from Synergos Institute led by Adewale Adewale Ajabi on behalf of the foundation.
The Governor who expressed the willingness of the state to partner with viable investors and create the enabling environment of investments to thrive pointed out that unless attention was given to the whole value chain the cassava produced would be wasted at the end of the day.
Mr. Ajabi had disclosed that the foundation was willing to collaborate with the state government to assist in cassava and rice processing.
He said the objective was to assist farmer to get value for their produce and to boost the economy of the state.
Governor Ortom also received a delegation from the Mutual Union of Tiv in America, MUTA, who were in the state for a health fair.
He assured Mr Doo Gar and Mrs Tivzenda who visited that although things were difficult the state would give assistance to the team.
The Eastern Bar Forum (EBF) of the Nigerian Bar Association (NBA) will on Saturday at the Bar Onitsha elect new officers to run the affairs of the Forum for the next two years. Thewnew officers will take over from the Mr. Ogbonna Igwenyi led Executives of the Forum.
A statement from the Chairman of the Electoral Committee, Mr Gerald Ezeh, states that the following candidates have been cleared to contest for the following offices: Messers Ekong E. O. Effiom, Ogbeche O.S. Richard and Essien Essien have been cleared for the office of Chairman; Barth Aniche N. Okoye-Aniche and Chukwu Arthur have been cleared to contest for the office of the Vice-Chairman, while Aguigwo Basil O. and Anosike E. Emeka have been cleared to contest for the office of Secretary and Mr. Onah Cyprain I. was cleared for the office of Treasurer.
The EBF Electoral Committee was set up at the general meeting of the Forum held on March 7, 2015 at Finotel Hotel, Awka, Anambra State
Did the emergence of Senator Bukola Saraki and Hon. Yakubu Dogara as Senate President and House Speaker violate the law? Yes, say some constitutional lawyers; no, argue others. They all agree that the matter be taken to court, writes Eric Ikhilae.
Politricks was at its height in Abuja last week when, against the plan of the ruling All Progressives Congress (APC), Senator Bukola Saraki (Kwara State) and Yakubu Dogara (Bauchi) emerged Senate President and House of Representatives Speaker.
Its lawmakers-elect had, during a straw poll elected Senator Ahmed Lawan (Yobe State and Hon. Femi Gbajabiamila (Lagos) for the positions. But Saraki and his supporters boycotted the session; Dogara’s loyalists protested Gbajabiamila’s choice.
In the wee hours of June 8, the day set for the proclamation of the Eighth National Assembly, APC’s legislators-elect were invited to a meeting with President Muhammadu Buhari at the International Conference Centre in Abuja. The meeting, it was learnt, was intended to further educate them on the rationale behind the party’s decision.
While loyal party members went for the meeting, others headed for the National Assembly. It was at the meeting venue that Lawan and his group saw on television Saraki’s emergence as Senate President.
When they raced to the National Assembly, it ws too late for them to do anything.They met Saraki wielding the gavel, the symbol of authority of his office. APC also lost the Deputy Senate President’s seat to Senator Ike Ekweremadu of the Peoples Democratic Party (PDP).
The dust is settling over the matter. The party has reversed its position to sanction Saraki and others; Gbajabiamila has put the episode behind him and expressed his willingness to work with the House leadership.
Observers are blaming the development on multiple factors, including party leaders’ inability to sacrifice self-ambition/interest for national good, lack of internal democracy and APC’s inability to discard its opposition mentality. The party, they added, must overcome the euphoria of its electoral victory and come to terms with the reality of being in power.
They argued that since last Tuesday’s legislative businesses were conducted on the floors of both chambers and quorum met as required, the legality of Saraki’s and Dogara’s emergence may not be an issue. To them, what should concern all are issues of morality, the need to entrench internal party democracy and for political players to subject themselves to party supremacy.
Observers noted that APC’s near loss of the National Assembly leadership resulted mainly from membership indiscipline, caused by conflict in their understanding of party supremacy, party discipline and the need for legislative independence, within the context of the doctrine of separation of powers.
They contended that in true democracy, the party, on whose platform every candidate rises to power, is supreme. Every member, having subscribed to the party’s ideology, is directed by the party’s interest. Its positions on issues are binding on all members, who have subscribed to its ideology and values. An act of disobedience, as exhibited by some APC members on June 8, is seen as betrayal and rebellion, and treated as such.
Observers, however, noted that it is too early for anyone to seek strict adherence to the time tested principle of party supremacy among Nigerian politicians, in a political environment devoid of party ideology, and where political participation is driven solely by self-interest (with scant regard for national interest); avaricious tendencies (as against selflessness in service); individual good (as against the general good), among other crude philosophies.
They also argued that because of the nation’s recent political history and the fact that the political amalgam called APC is still fragile, the party needs to tread softly and continue to accommodate members’ excesses.
They warned that a rash application of the rod could result in inflamed disaffection, which could scare away members, capable of serving as the party’s assets. Democracy, they argued, thrives on the effective management of conflicting interests for the good of all.
Lawyers have equally examined the legal and moral implications of the matter. Nigerian Bar Association, (NBA), President Augustine Alegeh (SAN), Prof Itse Sagay (SAN), Mahmud Magaji (SAN) and Ebun-Olu Adegboruwa proffer divergent views.
Alegeh argued that Saraki’s and Dogara’s emergence as leaders of both chambers of the National Asembly is not illegal. He said it is a moral issue and not a legal one.
• Saraki
Alegeh said the 57 senators, who were in the chamber when the election of Saraki took place were enough to form a quorum, and that having formed a quorum; the decision taken at the time was binding on the Senate.
He urged the APC to quickly resolve its internal conflict to avoid the kind of errors that resulted in PDP’s implosion.
“Inaugurating the National Assembly is considered as an ordinary business and for an ordinary business, the requirement of a quorum is one-third. So, legally, there was a quorum. You can argue from a moral perspective but legally, it is in order.”
“The general election was held in March/April and we are in June. There was enough time for the party to meet with the lawmakers and agree on all these issues. Why wait till the last minute? We must understand that if a time had been fixed for the inauguration, one would expect that all those who want to be inaugurated, given the importance of that event, should have arrived on time.
“The Clerk of the National Assembly, who is in charge of determining such, said there was a quorum. It will be difficult for me to fault that. We must understand that the National Assembly belongs to the entire country and parties from both sides are members of the Assembly.
So, for a meeting of one of the parties to lead to the closure of the Assembly would be unfair. The issue that led to some PDP members joining the APC should not be quickly forgotten,” Alegeh said.
Sagay argued that the process leading to Saraki’s emergence was fraudulent. He also queried Saraki’s moral credentials.
“If you look at the moral point of view, that purported election was fraudulent. When you purport to hold an election deliberately in the absence of your opponent, knowing that he is absent, and intending to win at any cost unopposed by ensuring that absence, that constitutes fraud.
“Not only that, I think it’s an act of gross indiscipline, not just against his party, but against the whole country because we are all stakeholders in the electoral process, in who becomes the Senate President and we all felt cheated because there was no proper election. Again, it’s also an act of gross impunity.
“In effect, he was saying ‘I know my opponent is keenly interested in contesting, I know my opponent is not here yet, and therefore, I will rush an election in his absence in order to be certain of victory at any cost.’ It’s absolutely unacceptable in a decent democracy.
“My opposition to his sitting illegitimately in that office is not because of his (Saraki’s) “baggage”; he may not be my first choice. But if he had won legitimately, in a fair, square and equitable way, I would have no objection. Yes, he has a huge baggage. Presently as far as I know, he’s under investigation and possibly a lot of inquiry by the EFCC. The matter has not been cleared.
Normally, it would be better for the first arm of government – that is what the legislature is, and he is the third most senior political personality in the country – for that person to have a clear table; not to have any baggage hanging around his neck.
“This is because if you have a heavy baggage like that hanging on your neck, and you’re presiding over such an important establishment, then that establishment is also going to carry that heavy weight of a burden along with you, and it will necessarily affect the respect and intergrity which his decisions will have and the whole process of operation of that institution will be impeded by that heavy load,” Sagay said.
Magaji praised the party for the matured way it has chosen to handle the issue, and for not insisting on sanctioning Saraki and others.
He said it was dangerous for the party, at this stage, to seek to be dictatorial. He urged the party to be magnanimous and learn to accommodate the interest of its members, particularly those who risked their all for its success.
Adegboruwa, who contended that the issue of legitimacy was not in question here, noted that whether one goes by the simple majority of 55 Senators, as prescribed by the Constitution, or that of 38 Senators, as prescribed by the Rules of the Senate, the Senate leadership was properly and validly elected.
“It is indeed unfortunate, that some Senators chose not to be present at the inauguration, for whatever reasons. Their absence, without lawful excuse, will not invalidate the proceedings of the Senate of June 9, 2015.
“Upon proclamation of the Senate by the President through the Clerk, the business of the Senate had commenced. There was then immediately a transition of power, from the President to the Clerk. The only duty of the Clerk was to proclaim.
“The immediate assignment after that is the election of the principal officers, especially that of the Senate President and his Deputy. That could not be postponed to await the APC senators, whatever party assignment that they had secured for themselves temporarily.
“The best option before APC presently, is not some specious or cloudy legal process, but rather a political solution, if it can muster enough will and support, to remove the principal officers already elected, on the floors of their respective Houses.
“But that will be a needless distraction, as we need the Senate urgently, to settle down to appoint other principal officers, to constitute the committee members and most importantly, to approve the much awaited ministerial list, of the President.
“APC as a political party cannot hold Nigeria to ransom, due purely to its own internal crisis. It precipitated this whole problem, through the illegal and sham mock elections that it arrogantly conducted, as a demonstration of its bogus prowess and political dominance, which was clearly unnecessary.
“My very humble advice is that the APC should lie low and let Nigeria move forward. Nigerians voted for APC in order to depart from this feudalistic dominance of the political space, by some set of people, and we cannot seek to be going back to the PDP vomit, that we have all gloriously escaped from,” Adegboruwa said.
The law firm of Olisa Agbakoba Legal (OAL) has opened its new arbitration and mediation centre at 10 Ilabere Avenue, Ikoyi, Lagos.
Its Director Mrs Priscilla Ogwemoh, said OAL provides legal services to a broad spectrum of clients.
Its practice areas include Alternative Dispute Resolution (ADR), litigation, banking and finance, corporate and commercial law practice, maritime, energy and natural resources to mention a few.
Ogwemoh said: “As a responsive commercial lawyers, OAL understands that clients now try to avoid litigation as a first option in resolution of commercial, dispute.
“Companies and private individuals now require new ways to circumvent the slow judicial process and encourage accelerated and quick resolution of disputes.
“The firm became one of the foremost law firms in Nigeria to introduce law firm annexed ADR Centre, a destination where disputes are amicably resolved out of court to the satisfaction of client’s commercial exigencies.
“To satisfy its clientele and interested public, OAL recently expanded and relocated the ADR center to Ilabere Avenue, Ikoyi. The beautifully designed office and its new location depict taste for serenity, accessibility and exclusivity.
“The center will provide services including designing and setting up of Alternative Dispute Resolution Framework peculiar to companies operations, representation in arbitration and ADR proceedings as well provide design for mono or hybrid ADR systems depending on evaluation and assessment of company operations and dispute scenarios.”
These statistics do not include those deaths that were unreported or those that were premeditated politically motivated assassinations, arson and other mayhem unleashed on the populace by politicians and their thugs. These deaths do not also include the Boko Haram attacks in Bauchi, Gombe and Yobe States during the elections which claimed several lives.
Factors militating against the effective use of police powers during general elections
The impression one gets is that these acts of violence and mayhem can proceed unchecked and unabated, without the intervention or control of the law enforcement agencies in Nigeria. The question arises why the NPF is seemingly helpless and hapless in the prevention of these criminal activities? Indeed when arrests are made why do the suspects appear invincible and beyond the prosecutorial reach of the law enforcement agencies? Under the Police Act the prosecution possesses undoubted powers to prosecute offenders in violation of our penal legislations before any court in Nigeria appropriately designated for such an exercise. It is therefore a regrettable matter that the National Assembly has created an unsalutary state of affairs by denying Police the complimentary power to prosecute offenders apprehended by it for committing electoral offences. The power to prosecute and bring offenders to justice is a necessary adjunct to police powers. Indeed, stakeholders maintain the unassailable position that power to prevent and apprehend criminals without a corresponding power to prosecute is an exercise in futility. Consequently when the Electoral Act 2010 provides in section 150 (2) of the Electoral Act that ‘Any prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it.” It has expressly and openly emasculated the Police in its task of securing electoral peace and harmony.
This section has far-reaching implications; firstly, it removes prosecutions of electoral Offences from the Police and the Federal and States Ministries of Justice and restricts this important exercise to legal officers of INEC or legal practitioners appointed by the commission. The implication is that criminal prosecution will be centralised Quere? Has INEC got the manpower to prosecute even 10 per cent of electoral offences? By divesting the police of powers to prosecute such summary offences, who will investigate the offences, because, the fall-out of this prosecutorial ban is that the police will lose an interest in investigations.
At any rate, it is settled law that the Hon Federal Attorney-General can take over or discontinue any criminal proceedings in the Federation or state. So, what is the functionality of this provision? It seems clear that the provision which seeks to preserve the independence and integrity of elections under the Act by limiting participation in prosecution to INEC staff or lawyers briefed by her, loses sight of clear constitutional provisions which fetter its power to do so. For instance section 214 of the 1999 Constitution which prescribe that there shall be only one police force in Nigeria and the provision of section 174 and 211 which vest powers to prosecute criminal offences on the Attorney-General of States and the Federation. Secondly, has the Commission the man power to prosecute all offences charged to court in the Federation? The answer is in the negative, prosecution is expensive and rigorous business, and it is also a specialized art. Till date, INEC Legal Department is not equipped to prosecute any offender under the Act as the necessary facilities are not in place. In any event, the Commission has stated on many occasions that it does not possess the wherewithal to carry out such additional functions that will cause distraction to its core duties.
Great care has to be taken to organise and dedicate a battery of lawyers in the INEC legal department to prosecution of cases. The essence of a democracy is to have functional machinery of Government, which in turn will provide safety and stability for her people to express their political rights in any atmosphere devoid of rancour and instability. In other words, where hoodlums are allowed to operate freely, troubling innocent by-standers, wishing to cast their votes and or exercise their civic rights, without let or hindrance, the credibility of the election and the integrity of those elected through such chaotic situation would have suffered a fatal blow. Finally by way of recommendation, Government needs to return to the drawing board and fully implement the Hon. Justice Uwais Report on Electoral Reforms which provides for an Electoral Offences Commission and a Tribunal to be its adjudicative arm. This step is imperative for the maintenance of law and order during elections and beyond.
The legislative arm of government
The survival of our model of Presidential Democracy is hinged on the optimal performance of the three arms of Government i.e. Executive, Legislature and the Judiciary. The three arms are expected to act in check to one another. However it has been observed that the weakest link at the level of State governance is the legislature. It appears that the checks and balance that they are expected to provide is completely absent. The clearest example is the passing into law legislation to authorise outrageous ‘so-called severance pay package for governors, deputy governors, commissioners and other motley political office holders’.
This is coming at a time when the 85 per cent of the nation’s resources is reportedly being spent on recurrent expenditure at both national and states it is inhuman to take such largesse from Government Treasury just because of a 4 year service. This kind of conduct is anti-democracy and it is perpetrated because there is no one within the system to call them to book. It is a vicious circle with every aspirant looking forward to climb the political ladder by any means most especially through violence and godfatherism in the hope that ultimately it will be his turn to enjoy such largesse for life. In my humble view, this is not the intendment of democracy. The people from where we copied the system have no equivalent of such brigandage.
The Court of Appeal sitting in Abuja has ruled that a Nigerian-American, Mr. Imokhuede Ohikhuare is the rightful owner of plot of land at No 1809, Asokoro, Abuja.
Former Nigerian Ambassador to South Africa, Alhaji Shehu Malami, had earlier laid claims to the property and had purportedly transferred ownership to another businessman, Sir Emeka Offor, via an irrevocable power of attorney.
But in a landmark judgment in Suit No CA/A/370/2012 delivered last week by Justice Mohammed Mustapha, the Appeal Court resolved four of the five issues raised for determination in the suit in favour of Mr Ohikhuare.
The Court held that Mr. Ohikhuare’s “appeal therefore succeeds, perforce, and is allowed”.
The court set aside the judgment of the trial High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/105/2010, and delivered by Justice M.S. Umar on May 17, 2012 with N30,000 for the appellant, against the first to fifth respondents.”
In 2006, Mr. Ohikhuare had bought Plot No 1809, Asokoro, the land in dispute for N50 million, and perfected instruments on it and built residential apartments valued worth about N1billion on the land.
“Between the time Mr. Ohikhuare bought the land, built the apartments and moved in with his family, had lived there four years during which the first and fifth respondents in the appeal, that is Ambassador Shehu Malami and Sir Emeka Offor, their privies or agent did not lay claims to Plot 1809 Asokoro”.
Ohikhuare was living with his family in the property until he was allegedly ejected with force from it, on the strength of a verdict of an Abuja High Court.
In his amended notice of appeal, Mr. Ohikhuare, through his lead counsel, Paul Erokoro (SAN), asked the Court of Appeal to determine “whether the lower court was right in its findings that the appellant was a bona fide purchaser for value without notice; whether the plea of larches and acquiescence was not available to the appellant against the 1st respondent (Malami) having regard to the conduct of the 1st respondent and all the circumstances of this case; whether the learned trial judge’s failure to evaluate and consider key pieces of evidence favourable to the appellant did not amount to a denial of fair hearing; whether there being no proper plaintiff, the trial court had jurisdiction to determine the matter; and whether the proceedings and judgment of the court were not vitiated by fraud, the plaintiff having falsely misrepresented in his pleading and testimony that he was claiming the land for himself when, as subsequently revealed by Exhibit IM06, IM07, IM08, IM09, IMO10 and IMO10A, he was not.”
After a thorough review of evidence before it and findings on the first issue for determination, the Appeal Court justices resolved it “in favour of the appellant and against the respondents.”
Ruling on issue two, the Court of Appeal held: “The trial court was in error, therefore, in the considered opinion of this court, in dismissing the defence of larches and acquiescence set up by the appellant at the trial; this issue is accordingly resolved in favour of the appellant and against the respondents.”
On the third issue for determination, the Appeal Court stated that it was “satisfied that the appellant’s right to fair hearing was breached by the failure of trial court to consider the evidence of the three defence witnesses, showing that there was no fence on the land in dispute” at the time the appellant bought it.
Resolving the fourth issue of whether there was a proper plaintiff at the lower court in favour of Mr. Ohikhuare, the Appeal Court ruled that Malami “no longer had the power to initiate the proceedings at the lower court for himself; because it is settled that an Irrevocable Power of Attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee”.
On the fifth and last issue for determination, however, the Appeal Court observed that “while there may have been misrepresentation” on the part of Malami in trying to assist Offor to “perfect his title and register his interest” on Plot 1809, “there is no evidence of fraud proved to the satisfaction of this court”. It, therefore, resolved the fifth issue “in favour of the respondent.”
Thereafter, the Appeal Court declared that Mr. Ohikhuare’s “appeal therefore succeeds, perforce, and is allowed; judgment of the trial High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/105/2010, and delivered by Justice M. S. Umar on the 17th day of May 2012 is hereby set aside, with N30,000 for the appellant, against the 1st to 5th respondent.”
