The Nation Newspaper

Category: Law

  • Death for Morsi and life for Mubarak

    Fair trial under the rule of law, surely has variants. One uncanny type, is the Egyptian model.May be because, democracy there, is in infancy, despite the age of that ancient civilisation. Last Saturday, May 16, an Egyptian court sentenced the first democratically elected, but ousted President Mohammed Morsi and 105 others, mainly from the abolished, but feared Muslim Brotherhood, to death, for their role during the ouster of President Hosni Mubarak. A week earlier, an Egyptian court after several rigmarole, also sentenced former President Mubarak and his two sons, to three years in prison for corruption, during his 30 years rule.

    Morsi and company were sentenced to death for their role in a mass jail break, during the 2011 uprising that eventually ended the Mubarak era. According to media report, armed members of Hamas entered Egypt through illegal tunnels during the uprising and taking advantage of the crisis, they fought their way to various prisons, to release Morsi and several other members of the Islamic brotherhood, who were in jail. In the process many prison guards were killed, while thousands of other prisoners were set free. Parts of the jails stormed by the attackers, were also destroyed.

    Amnesty International (AI) has, however, described the trial, as a charade. According to Al Jazeera report, Al said: “condemning Mohammed Morsi to death after more grossly unfair trials shows a complete disregard for human rights … he was held for months incommunicado without judicial oversight and that he didn’t have a lawyer to represent him”. Again Morsi and 12 other defendants were last month sentenced to 20 years imprisonment, for their role in the detention and torture of protesters outside the presidential palace, in the uprising, in December 2012; that eventually culminated in his ouster bythe military. For Morsi, there will be several more trial days ahead, as there are many more charges against him.

    While it may be tenable to hold Morsi and his Islamic Brotherhood, partly responsible for mismanaging the gains of the 2011 revolution that toppled the authoritarian rule of Mubarak, it is ridiculous that a so called democratically elected government of Gen Abdel Fattah el-Sisi, would allow this abuse of the judicial process, for temporal gains. Unless there is a change, Egypt’s sputtering democracy may wobble and fumble to a final stop, in the nearest future. According to assistant Professor Abdullah Al- Arian of Georgetown University, School of Foreign Service in Qatar, there are over 41,000 Egyptians in prison on political charges.

    In an article: “The many trials of Mohammed Morsi”, the history scholar holds the judiciary, as an accomplice in the degradation of democracy in Egypt. He wrote: “There is a method to madness that has become the Egyptian judiciary.” He furthered, “not to be outdone, the Egyptian judiciary has played an equally critical role throughout these events.  Its ruling throughout the post Mubarak’s transition from the dissolution of Egypt’s democratically elected parliament to its failure to convict any official from the former regime ensure that any attempt at revolutionary change would be thwarted”.

    Conversely for former President Mubarak, he and his two sons got a mere three years jail term, for what had been dubbed by the media, as the ‘presidential palaces’ affair. The media has not missed the irony that Mubarak’s trial was conducted in the same court, were Morsi was earlier sentenced to 20 years in jail. Again unlike Morsi, Mubarak was granted bail in 2013, and has since been staying at a military hospital. However like Morsi, he faced several charges after his ouster in 2011, but the tide changed in his favour, as soon as the revolution that toppled him was truncated, following the ouster of the Islamic Brotherhood, which won the first democratic election, but couldn’t manage their victory.

    In December 2012, this column had forewarned President Morsi thus: “Political power apparently tastes like a honeyed alcohol or a sweetened intoxicant. And when there is substance abuse as in most third world countries, the result is ruination. But for the eternal vigilance of Egyptians, President Mohammed Morsy’s careless overdose of that dangerous drug would have turned to an addiction. Nonetheless, Morsy and his Muslim brotherhood despite warning signals from their countrymen appears hell bent on taking that historical country through the ignominious road of the disgraced former President, Hosni Mubarak. By his request to be allowed to exercise autocratic powers for a period, the President was asking for a medical clearance for a pre-arranged insanity in other not to be culpable for a planned murder”.

  • Activists, others seek re-classification of youths

    Activists and stakeholders in youth development have called for the review of the 1999 Constitution to legally  re-classified  youths as persons between the ages of 18-45 years and accommodate them within the constitutional age requirements for elective positions.

    The demand was made at one-day summit of the Nigerian Arise/Nigerian Youth Think-Tank Group Summit, Western Region Summit, themed: “Generation Change and Transformation in Government: Nigerian Youths and Young Professionals Arise: re-write your history, take your destiny in your hands, looking beyond 2015”, held at the Sheraton Hotels, Ikeja.

    The Nigerian 2009 National Youth Policy defines youth in Nigeria to include all members of the Federal Republic of Nigeria aged 18–35.

    Activist and Lead Advocate, Constitutional Rights and Peoples Development Advocacy Initiative (CRAI), Ikechukwu Ikeji, in his paper titled: “An Analysis of  Youths and  Young Professionals Involvement in Governace from the first republic: The prospects in 2015 and beyond”, called for an immediate review of the Nigerian National Youth Policy of 2009 to reflect changes taking place around the world and the setting up of a National Youth Commission to serve as the regulatory organ for Youth Affirmative Action.

    Ikeji advocated for a Youth Affirmative Action in political and elective positions for at least 35 per cent representation of youth in all structures, positions, committees and congresses of political parties, and that which would ensure that at least 35 per cent quota is reserved for young people in all elective and non elective positions as well as reserving the position of national youth leader in all political parties for young persons within the age bracket of 20-45 years.

    Drawing from experiences from European countries, Ikeji argued for more involvement of youths less than 50 years of age in the governance of the country and cited various studies to buttress the fact that productivity in the elderly persons declines by the time they attained 55 years.                                                                                                                                                             According to him “a  study on  “Age and individual productivity: a literature survey”, by Vegard Skirbekk, Max Planck Institute for Demographic Research, 2003 found that people’s numerical and reasoning abilities are at their best in their 20s and early 30s; that a study for America’s Department of Labour showed job performance peaking at 35, and then declining while another study by Fredrik Nerbrand of HSBC, a bank, shows that  worker’s productivity peaks somewhere between the ages of 30 and 50, and declines more quickly after the age of 55″.

    To buttress his argument, he cited Dutch Prime Minister, Mark Rutte, who assumed office at 43 years of age; British Prime Minister, David Cameron who was 43 years when he became Prime Minister 5 years ago; American President, Barack Obama became President at 46 and Prime Minister of Italy, Matteo Renzi assumed office at age 39, among others.

    He lamented that the nation’s laws, including the Constitution completely excluded the youths from participating in the governance of the country.

  • Try corrupt judges before retirement, NJC advised

    Try corrupt judges before retirement, NJC advised

    A justice of the Court of Appeal, Olubunmi Oyewole, has advised the National Judicial Council (NJC), to henceforth prosecute  judges found to be corrupt before their retirement to serve as deterent to others.

    Justice Oyewole made the suggestion last week in a  lecture tittled: “The role of the bar in exterminating the termite of impunity from Nigeria”, delivered at the Alao Aka-Bashorun annual memorial lecture, as part of activities marking the 2015  law week of the Ikeja branch of the Nigerian Bar Association (NBA).

    He insisted that lawyers, who encourage impunity in the administration of justice through filing of frivolous applications, should also be discouraged from such acts through appropriate rules.

    ”We must not venture the thought that it is only through corruption that lawyers encourage impunity in the administration of justice.

    “When frivolous applications are filed to frustrate trials, when unceasing interlocutory appeals are filed, when we totally turn professional ethics upside down all to satisfy clients, we as practitioners are engendering impunity.

    “When we look the other way while our clients jump bail, interfere with witnesses and in the conduct of our cases do everything to impede the flow of justice under an unbridled commitment to our clients, we encourage impunity.

    “And when we, as Judges, grant unnecessary adjournments, delay rulings and judgments, fail to take control of our proceedings and apply extant case management strategies, we unwittingly encourage impunity.

    “Impunity is a pattern of behavior that challenges the very fabric of any organised society, done out of a consciousness that the particular society lacks the institutions or is too weak to prevent or punish deviance. It is a conduct without (fear of) consequence or repercussion; crime without (fear of) punishment,” he emphasised.

    Justice Oyewole, who is of  the Benue State division of the Court of Appeal, lamented a situation whereby electoral offenders goes freely without being punished.

    He said: ”We have just gone through a nerve wrecking electoral process which questioned the very essence of our being as a nation. Today, many of our courts are engaged in the unending rituals of election petition adjudication, leading to a development of needless and unhelpful jurisprudence, all because our electoral process is far from being transparent.

    “A little scratch will reveal the presence of impunity. Year in year out, perpetrators of electoral offences go unpunished. In many instances, they are never apprehended and where apprehended, they are processed through the justice system and freed once the tendency they worked for, gains political power.”

    He berated the bar for being part of this abberation. “The  Bar appears disengaged while the criminal justice system is routinely abused in this manner. Leading members of the Bar even join the clamour for there to be put in place an Electoral Offences Tribunal so that electoral offenders could be brought to justice.

    “This is a mantra regularly chanted after every election as if the criminal codes do not capture these offences or that offences involved are not triable by the regular courts.

    “Murder is murder whether committed during electioneering campaigns or at any other time. Ditto for possession of dangerous weapons, and other violent conducts characterising our electoral process.

    “Our criminal codes are sufficiently capable of capturing the essence of these unacceptable conducts unless we want to be hypocritical,”he stated.

    Justice Oyewole decried  human rights abuses in the country in spite of constitutional provisions on the need to respect other person’s right to dignity.

    Said he: “When Courts impose penalties for human rights abuses by law enforcement agencies and tax payers are made to compensate the victims via damages paid by the agencies and not the offenders who in most cases even continue their careers as if nothing went wrong, impunity is enthroned.

    “It will be interesting to compute how much actually goes into settling damages imposed by courts against the Federal Government for human rights abuses annually. I have an inkling that the result would be very very interesting.”

    The Justice of the Appeal Court expressed regret at the level of drug abuse in the country, noting, “it is routine these days for flights in and out of Nigeria to be disrupted on account of the presence of suspected drug traffickers.

    “Many Nigerians have met their untimely deaths in some less tolerant jurisdictions on account of drug trafficking. A review of our investigative, prosecutorial and adjudicatory approach to the drug problem will reveal a systematic perpetuation of impunity over the years.

    “A few years ago a Nollywood star was caught attempting to ferry hard drugs across our borders. She got off with a slap on the wrist; a light penal sentence with an option to pay a ridiculous fine, amounting to a seeming judicial endorsement of her illicit activity.

    “Apparently encouraged, a couple of months after the sentencing, another Nollywood star, this time of the male specie, was arrested for a similar offence and he similarly got off,” he said.

    Justice Oyewole viewed piracy as an area where impunity has equally done grave damage to the rule of law in the country. “This time with our Nollywood stars, musicians and other creative talents as victims is in the battle against piracy,” he said.

  • Firm asks court to set aside judgment on property

    Firm asks court to set aside judgment on property

    A Lagos based company, Johnson Products Nigeria Limited, has filed an application before a  Lagos High Court, sitting in Ikeja, to set aside the execution of a judgmnent which granted possession of a property located at Plot B, Ikosi Road, Oregun Industrial Estate, Ikeja to Jagal Nigeria Limited.

    In a Motion on Notice supported with an affidavit of urgency before Justice Olabisi Ogungbesan, the firm is praying the court to restore the status quo ante pending the hearing and determination of a pending application before the Court of  Appeal.

    Joined as second defendant in the suit was, Chief Samuel Agboola Akintan, who was said to have earlier leased the property to Wire Manufacturing (Nigeria) Limited for 20 years, having had a Deed of Conveyance dated 1971.

    Justice Ayotunde Phillips, (now a retired Chief Judge of Lagos State), had on July 11, 2008 delivered a judgment in suit no. ID/1466/98 in which judgment was given in favour of  Jagal Nigeria Limited concerning the Oregun Industrial Estate property.

    Jagal Nigeria Limited and Johnson Products claimed to have executed a Memorandum of Agreement on April 17, 1980, under which Jagal was said to have assigned its ‘unexpired interest in the said property to Johnson Products for a consideration of N1, 340, 000: 00 (One Million, Three Hundred and Forty Thousand Naira).

    However, Jagal claimed at the lower court that the Memorandum of Agreement entered into with Johnson Products in 1980 was ‘inchoate and transferred no interest in the property’ to Johnson Products; that the N1, 340, 000:00 paid by the Johnson Products to Jagal was in consideration of the sublease of 1982; and that Johnson Products holds the property only as tenant/sub-leasee and not as an assignee.

    It was this premise that Jagal claimed at the lower court.

    However, while Jagal claimed that its relationship with Johnson Products was that of a landlord and tenant, Johnson Products claimed that the relationship was that of an assignee and assignor.

    But Johnson Products averred at the lower court 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: 00; that Jagal issued a receipt No. 1351 dated 2 June 1982, which ‘clearly stated that the payment is for the assignment of the property in question.

    Johnson Products further averred that Jagal acknowledged its ownership of the property in a letter addressed to Ault and Wilborg (Nig) Limited.

    Delivering judgment on the matter at the lower court, Justice Ayotunde  Philips (as then was) of the Lagos High Court, held the claims of Jagal as the court affirmed that the Memorandum of Agreement ‘transferred no interest in the property to Johnson Products.’

    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.

    The matter assumed a new dimension on December 8, 2010 when the matter slated for hearing  by the appellate court, was struck out for lack of legal  representation for the appellant, Johnson Products.

    Consequent upon the new development,  and alleged ‘misrepresentation’ of its position to the Court of Appeal, Johnson Products Limited  applied for a relisting of the suit at the Court of Appeal.

    However, while waiting for the relisting to be done,  Jagal Nigeria Limited,  obtained a Writ of Possession of the Lagos High Court, Ikeja to effect the 2008 judgment of Justice Philips against the first defendant (Johnson Products).

    In a letter to the Administrative Judge of Lagos State, dated May 4, 2015, counsel to Johnson Products, Dr. Wale Olawoyin (SAN)  claimed that Jagal’s action was “contrary to trite principle of law’, urging the court to set aside the claimant’s (Jagal Nigeria Limited)  execution order and further execution of the judgment.

    ”The staff of the first defendant (Johnson Products) no longer have any office space to work from and are now constrained to operate from the personal office of its Chairman in GRA, Ikeja.

    “We have now filed a Motion on Notice together with an Affidavit of Urgency to set aside the claimant’s execution and further execution of the judgment and restore the status quo ante pending the hearing and determination of the pending application before the Court of Appeal,” the letter read in part.

    At the fresh sitting on the new application last Friday, Justice Ogungbesan urged all parties in the suit, including an inter-pleader, Olayiwola Dada, to file their responses to Jagal’s application and other applications already filed before the court.

    Dada, who joined in the fresh suit, told the court through his counsel, Emmanuel Ogbitisen that although the previous judgment of the court did not affect him, but he urged the court for an order to “allow us to maintain the machines and have access to them so as to service them”.

    Counsel to the claimant (Jagal), Qudus Mumuneey, however, opposed any order of the court until he replied to all applications before the court. Mumuneey averred that as far as his client is concerned, “the case is technically dead”. He further told the court of his client’s intention to move a preliminary objection on the jurisdiction of court to hear the fresh application.

    But counsel to Johnson Products, represented by J.O. Omisade, his client was misrepresented before the Court of Appeal that his client ‘had not been diligent in prosecuting the appeal by its failure to file its Brief of Argument.

    “However, as shown in our Motion before the court and contrary to the misrepresentation of the claimant to the Court of Appeal, the 1st defendant (Appellant) had filed and served its Brief of Argument since 8 December 2010,” he said.

    Justice Ogungbesan has, however, adjourned the matter till tomorrow to address all the applications by the parties.

    Johnson Products Limited, in its brief of argument  before the Court of Appeal listed four main issues for determination in line with its ground of appeal and the facts and circumstance of the case.

    It asked the court to determine “whether the trial judge was right in holding that the Memorandum of Agreement dated April 17, 1980 and admitted as exhibit 8, has not conveyed any interest recognisable in law to the appellant; whether the learned judge was right in holding that the appellant”s  payment to the first respondent was not payment under exhibit P8 when the payment receipt, exhibit D2, clearly states that the payment was for the assignment of the first respondent’s unexpired residue”.

    The company also asked the court to determine “whether the appellant failed to prove its allegation of fraud against the first respondent at the lower court considering that the whole evidence adduced by the appellant in proof of the fraud was wrongly rejected by the trial judge” and “whether from the totality of evidence presented before the lower court, the trial judge was right in holding that the relationship between the first respondent and the appellant was landlord and tenant’s and not that of assignor and assignee.

    On the first issue, the appellant, citing authorities to support its argument, submitted that on the basis of exhibit P8, obtained valid and subsisting equitable interest in the subject matter of the appeal and urged the court to so hold.

    It further submitted that the payment of N1,340,000 by the appellant to the first respondent evidenced in Exhibit D2 was validly made and stands as the consideration under exhibit P8.

    It argued that the trial judge was wrong in holding that the first respondent is entitled to possession of the res, arrears of rent and mesne of profit and urged the court to so hold.

    The appellant urged the court to sustain its appeal and reverse the judgment of the lower court on the ground that the memorandum of agreement conveyed equitable interest in the property, subject matter of the appeal, to the appellant contrary to the decision of the trial judge; that the sum of N1.340,000 paid to the first respondent and acknowledged by the first respondent, is a valid payment under exhibit P8 and was never converted to any other purpose.

    It further submitted that the evidence adduced by the appellant in proof of its allegation of fraud was improperly evaluated by the trial judge and that occasioned miscarriage of justice and emphasised that by the totality of evidence adduced before the trial judge, the relationship between the first respondent and the appellant is that  of assignor and assignee.

     

     

  • Journal on business and property makes a fresh comeback

    The Gravitas Review of Business and Property Law, has hit the news stand again after 22 years of being out of circulation.

    The journal, which was first published in 1988, was forced to suspend publication as a result of the socio-economic crisis of 1993.

    Addressing a press conference in Lagos last week, its Managing Editor and Chief Executive, Gravitas Legal and Business Resources Limited, Moshood Shehu, told journalists that the journal, which was initially a bi-monthly publication, would now be published quarterly, adding that the new publication came back well packaged than what it used to be 22 years ago.

    Shehu said the publication would be a platform for robust and in-depth analysis of business and legal issues by experienced practitioners and academics.

    He said the journal would be a resource material to practitioners, businessmen and students of law as it would publish well researched and peer-reviewed articles on all aspects of business and property law including on energy, international finance and transactions, economic crimes and sanctions, capital market and securities, maritime, taxation, project finance, land transactions and intellectual property, tourism and travel law, project finance, arbitration law, labour law, mining law, consumer protection law, estate, wills, trust and their administration, among others.

    According to him, the journal would serve as a permanent archive for lecturers and researchers as it would contain their works and business articles by legal luminaries including those of Prof, Yemi Osinbajo, Prof Akin Ibidapo-Obe, Prof. Akin Oyebode among others.

    He said articles  would also be sourced from other jurisdiction to engender international comparison and distillation of practices.

    Shehu disclosed that the publication would also be online full time, on stream as from next month for sale of digital copies to willing corporate bodies and other customers in line with technological trend.

  • How president-elect Buhari can achieve a fair deal for victims of corruption

    How president-elect Buhari can achieve a fair deal for victims of corruption

    Today the level of confidence in Nigeria is remarkably high, and president-elect General Muhammadu Buhari has been described by many as embodying ‘the promise of change’. Hardly surprising, given that one of the reasons he became president-elect is because of his apparent zero-tolerance approach to corruption. Nigerians have indeed, continued to offer increasingly passionate support to the president-elect, and have been very busy setting agenda for the incoming government on how it can bring about real change. Expectedly, high on the list is the need to prosecute and punish corrupt high-ranking government officials.

    But one useful complementary legal remedy against corruption has been largely ignored: the use of human rights law to empower the citizens and provide effective remedies for victims of corruption.

    Corruption is anathema to effective enjoyment of human rights, but it is often considered an ‘ordinary and victimless crime.’ It isn’t.

    Yet the myth that corruption is a victimless crime has prevailed for many years, in part because of the narrowed conception of corruption, and the perceived legal and practical challenges, such as causation, legal stand­ing, and evidence-gathering. However, it is not that those who characterise corruption as victimless completely disagree that it causes harms, especially to the economically and socially vulnerable (that is, any individual or determinate class of persons, who by reason of poverty, or disability or socially or economically disadvantaged and vulnerable position, suffer most the immediate effects of violations of human rights caused by corruption).

    On the contrary, the argument often put forward is that since no one victim suffers more harm than others, and that there may be no direct victim, it is probably pointless to labour in search of ‘invisible victims’. This line of reasoning would appear weak and difficult to sustain, for the following reasons. First, apart from causing both direct and indirect economic and other harms to citizens and the public in the form of the loss of the common wealth and public revenue, corruption also causes non-monetary loss in the form of wide­spread and consistent denial of impartial application of the rule of law.

    While it may be difficult to quantify the harms that corruption causes, this doesn’t make the harms less real, less destructive, or less corrosive. In fact, the manifestations and indicators of these harms can be easily recognised in the form of poverty and the systematic, gross human rights violations that millions of economically and socially vulnerable Nigerians have suffered for many years.

    As former UN Secretary-General Kofi Annan stated during the 2003 adoption by the General Assembly of the United Nations Convention against Corruption (UNCAC) corruption: ‘(H) as a wide range of corrosive effects on societies; undermines democracy and the rule of law; leads to violations of human rights; erodes the quality of life…hurts the poor dis­proportionately by diverting funds intended for development, and undermines a state’s ability to provide basic services.’

    While it is true that the causes of poverty and underdevelopment in Nigeria are complex (and no single factor causes poverty), the longstanding problem of corruption is unquestionably one explanation for deficits in the rule of law, a drain on public treasury, and exacerbation of existing vulnerabilities and inequalities.

    The Buhari government, therefore, can’t afford to treat grand corruption as an isolated incident if he doesn’t want to be accused in four years’ time of leaving both communities and individual victims of corruption powerless and without effective remedies.

    At the moment, the legal frameworks against corruption in Nigeria do not reflect elements of the accountability of the government for the human rights violations faced by victims of grand corruption. The victims are largely neutralised (and virtually anonymous) in the criminal process, with no access to human rights remedies.

    The overriding priority for the Buhari government starting on 29 May is, therefore, first, to provide a strong leadership by proposing and facilitating the passage of a bill by the National Assembly that would characterise grand corruption as a breach of national trust and grant the citizens enforceable human right to ensure the eradication of corruption and abuse of power and, second, to establish a Trust Fund for victims of corruption in the country.

    With respect to the first point, the Buhari government can take a clue from the abandoned 1995 draft Constitution of Nigeria (proposed, ironically, while Abacha, regarded as one of the most corrupt leaders of Nigeria, was in power), which explicitly grants legal standing to the citizens to sue for violations of their human rights occasioned by corruption. The draft constitution provided in Section 35 that  ‘Every person shall have the right to: (a) ensure the eradication of corrupt practices, and abuse of power; (b) protect and preserve public property; (c) fight against misappropriation and squandering of public funds.’

    The proposed legislation can also contain provision to characterise the failure of national and foreign banks to prevent stolen funds from being cached in their banks and to aid in their recapture as complicity, after the fact, and itself, a delict.

    Secondly, the Buhari government should establish a Trust Fund for victims of corruption, drawn mostly from recovered stolen wealth and other interest that might be generated from this. Given the limited resources available, fines should be imposed on corrupt officials, and such fines should be set aside as endowment for the trust funds. The proposed trust funds can also be aug­mented by support from international development agencies and other relevant institutions and the private sector.

    Part of the funds should be used to establish victims’ assistance programmes to ensure the victims’ perspec­tive is fully integrated into the fight against corruption.

    The notion of trust funds for victims of human rights violations is a well-established mechanism in international law and relations, such as under Article 75 of the Rome Statute of the International Criminal Court (which creates a fund for the benefit of victims of international crimes and their families, the assets of which may originate from money or property col­lected through fines or forfeiture imposed by the ICC on the individual perpetrator).

    The idea of a trust fund is also frequently adopted in mass claims pro­grammes (such as the Iran-United States Claims Tribunal of 1981) to provide ‘effective remedies for numerous individuals who suffered losses, dam­age or injuries as a result of an armed conflict or a similar event causing widespread damage’. The existence of armed conflict is not a requirement for mass claims: similar types of claims would arise from environmental disasters, causing widespread damage or injury, or from systematic human rights violations in peace time caused by corruption.

    The goal is presumably to achieve ‘practical justice: that is, a justice that would be swift and efficient, yet not rough’. Mass claims cases are clearly similar in kind to the adverse effects of corruption on human rights. Therefore, the Buhari government should replicate the mass claims principles, and work towards establishing trust funds (as an essential element of remedial justice) for victims of corruption.

    By establishing such trust funds, the Buhari government will also be signalling that victims will no longer be marginalised in the fight against corruption.

    Indeed, the UN Basic Principles of Justice for Victims of Crime and Abuse of Power provides some guarantees for victims (including family members of direct victims), such as those that suffer ‘substantial impairment of their fundamental rights’ through acts or omissions, including abuse of power. Corruption is implied here as the ultimate abuse of power. Victims of human rights violations would be entitled to effective remedies regardless of whether they bring their claims against the state in an individual or collective capacity.

    On the one hand, the institutions of gov­ernance and the society as a whole are the victims. On the other hand, corruption disproportionately inflicts grave harms on the economically and socially vulnerable, who, in addition to violations of their specific human rights, are also denied access to effective operation of the rule of law and institutions of government.

    In his ‘Covenant with Nigerians’ the president-elect stated ‘I believe if Nigeria does not kill corruption, corruption will kill Nigeria.’ He is spot-on. But if any significant and sustainable success is to be recorded in the fight against corruption, the Buhari government will need to avoid more of the same. Nigerians want to see General Buhari taking creative, radical, evolutionary, and bold initiatives to fight corruption and thereby working to create a state that serves its people’s interests.

    Make no mistake, the road to ‘change’ will be filled with ‘potholes and blind curves.’

    But four years from now, Nigeria can be ‘a new country’ where corruption is no longer considered ‘normal’ if the Buhari government can show strong leadership, political will, and the courage to do something dramatically different.

    As John Maynard Keynes said in his famous speech in Manchester in 1926: ‘The political problem of mankind is to combine three things: economic efficiency, social justice and individual liberty.’ Buhari’s primary task in the next four years is to produce a country that will come closest to passing Keynes’s triple test.

    • Olaniyan, PhD, is the author of ‘Corruption and Human Rights Law in Africa’

  • Wrongful dismissal:  Lawyers want labour laws reviewed

    Wrongful dismissal:  Lawyers want labour laws reviewed

    The Nigerian Bar Association (NBA), Ikeja Branch has held its 2015 Continuous Legal Education Programme, a platform  intended to sharpen the skills of its members and make them more knowledgeable about new developments around the world. The two-day programme, which focussed on various aspects of the law, was attended by justices of the Court of Appeal, judges of the High Court of Lagos State, the National Industrial Court (NIC) and other legal practitioners, reports ADEBISI ONANUGA

    Legal practittioners, including justices of the Court of Appeal, judges of the High Court of Lagos State and the National Industrial Court (NIC) and other lawyers converged on Ikeja, penultimate week to sharpen their skills, share knowledge in new areas of their profession and exchange ideas in order to keep themselves abreast of developments around the world.

    The occasion was the two-day continuous legal education programme (CLEP) of the NBA Ikeja branch. The programme, which  held at the at Adetiloye Hall of Arch Bishop Vining Memorial Cathederal Church, Ikeja, afforded the legal practioners oportunity to  examine new areas of the laws, review basic practice and trial principles.

    The lead speaker and expert on labour laws and industrial relations, Abiodun Owonikoko (SAN), in his 34-page presentation, dealt essentially on “the termination of private employment, employment with statutory flavour on grounds of misconduct  with or without element of crime: How validly done; effect of such termination on employee’s  entitlements, legal remedies available to such employees,  Defences Available to the Employer, Impact of section 12 of the National Industrial Court Act 2006 allowing departure from applicability of Evidence Act to Labour     litigation”.

    Owonikoko, who enumerated the type of employment available in Nigeria to include employment made under the common law, employment with statutory flavour, employment where office is held at pleasure of employer and hybrid employment, said the crux of his paper was specifically on the determination of employment, that is, how to put an end to working relationship between employer and employee. Pointing out that there are just two ways by which an employment relationship can come to an end, he explained that determination of employment can either   be by termination or dismissal.

    The senior advocate took time to explain the determination of employment under the different types of employment available to employees. He explained that the effect of termination of employment under both private/common law employment and statutory employment generally, is that there ceases to be a contractual relationship between the parties and that, neither of the parties are bound by the terms of the employment contract.

    Citing various authorities to support his submissions, Owonikoko dealt extensively on legal remedies available to employees after determination of employment, which include remedy of damages and entitlement to a remedy of re-instatement. On how to challenge wrongful determination of employment, the erudite lawyer said “the omnibus provision of section 254(c) (1) of the 1999 Constitution (as amended), gives the NIC original jurisdiction to hear matters involving employment determination. It thus follows that the appropriate court with jurisdiction to hear matters of this nature is the NIC and that the procedure to follow is to come by way of a General Writ of Complaint.

    The senior lawyer, however, identifies a gap in the employment laws,  which he noted, does not make for fairness in employment relationships, that is in the area of wrongful dismissal. According to him, injustice exists in the Nigerian labour market.

    According to him, the courts, the employment and labour laws are yet to adequately embrace the challenge of unfair dismissal as contrasted with wrongful dismissal. He explained that unfair dismissal covers a whole range of unspoken, but apparent ill motivated grounds for causing an employee to lose his or her job. He stated that generally in Nigeria, motive is not a ground for contesting termination of employment. He said employer can terminate for good or bad or no reason at all.

    ”Except for the omnibus of Section 42 of the Constitution, there does not appear to be  clear labour employment specific law in Nigeria that protects employees from unfair termination as a result of discrimination on grounds of sex, age, religion, ethnic group, gender, birth and HIV status, among others.

    “This lacuna in our laws should be given urgent attention, especially as we transit into a new era of change with the in-coming administration of the All Progressive Congress (APC) at the federal level that has made job creation as one of its cardinal manifesto commitments,” he said.

    Kemi Pinheiro (SAN), in his paper titled: “Preferring and Quashing Bare Charges, Holding Charges, Remand Charges etc”,  citing relevant authority, said it is only when an accused pleads either guilty or not guilty to a charge as the case may be, that issues are joined in a criminal trial. He said until this happens, the accused person is technically outside the pale of the court’s jurisdiction”.

    On the effect of making an application to quash a charge, the senior lawyer pointed out that “any objection to a formal defects in the charge should be taken before plea, otherwise the objection is taken as having been waived.

    Citing Section 167 of the Criminal Procedure Act, Pinheiro counselled lawyers that a want of jurisdiction, which ordinarily could be raised at any stage of the trial, is better raised before plea is taken.  He said in other jurisdiction, either party may move to quash either the whole of the indictment or a count. “The obvious time for doing so is before the accused is arraigned, although it would be seem that the defence may make the application at any stage of the trial,”he said.

    He explained that the effect of a successful application is that the accused may not be tried for the indictment (or particular count to which the motion relates). “However, this does not mean that the accused is thereby acquitted,” he said.

    An accused person, according to Pinheiro,  does not have to enter the dock when challenging a charge preferred against him, even if present in court. Citing an authority to support his view, the senior lawyer posited that the appellant can only be ordered by the learned judge to enter the dock and plead to the charges when he had heard full arguments on the objection and ruled one way or the other.

    Titilola Akinlawon (SAN), in her paper titled: “Adoption of Children: National and International Perspective”, said   it is impossible to adopt a child without a court order. According to her, “a mere agreement in which a parent seeks to transfer his rights and  duties to someone else, is ineffective and will not be recognised as an adoption. The idea of defacto adoption, that is, an arrangement where the child lives permanently with people, who have put themselves in “loco parentis” to the child is ineffective to give the carer, parental responsibility to remove that of his parents”.

    Akinlawon explained that the Child Rights Act 2003 addresses children generally, but has specific provisions relating to adoption. She explained that Section 277 of the Act defines a child as a person under 18 years while Section 128 provides for when a court can make an order for adoption of a child and listed children that could be adopted to include those with no surviving parent or those abandoned, neglected, persistently abused or ill treated, and that for which there are compelling reason in the interest of the children on why they should be adopted.

    The senior lawyer, however, clarified that provisions of Sections 145(1) and 131(1)(b),(c) and (d) put it beyond doubt that inter-country adoption is not allowed under the Child Rights Act.

    She explained that  allowing inter-country adoption would undermine the current effort by the government as well as non-governmental organizations to combat the rising spate of child trafficking.

    Earlier, Lagos Chief Judge, Justice Olufunmilayo Atilade had stressed the need for lawyers to continuously update their knowledge of the law. She said this has become necessary if they must be abreast of developments in the legal circle around the world.

    Justice Atilade who declared open the two-day Interactive seminar which has as theme, “Sustaining the Tempo of Cutting Edge Professionalism”   said, “there is no limit to education. We must try at all time to meet all standards in international and domestic law practice. This is the only way we can ensure that we are current and up-to-date as members of the  legal profession”, she stressed.

    Justice Atilade remarked that the just concluded Commonwealth Law Conference held in Glasgow and at which she was in attendance, was part of the international effort to develop the profession and its practitioners.

    The Lagos Chief Judge commended the quality of papers delivered by Nigerian lawyers who were speakers at the conference saying that they exhibited high intellectual capacity.

    While commending the NBA for the seminar, she advised then to organize more of such retraining programme for their members in order for them to be able to discharge their  functions in the best way possible.

    Earlier in a welcome address, the chairman of the branch, Yinka Farounbi explained that the programme was intended to refresh and update legal practioners with new knowledge and modern day practice.

    Farounbi expressed confidence that by the end of the programme,  participants would have learnt new developments and abreast of new methods of litigation and adjudication.

     

     

     

  • Amending the constitution: Fed Govt v. Nass

    On the decision of the Supreme Court to halt the constitutional amendment process being undertaken by the National Assembly, I think it is a good decision which will allow the incoming National Assembly the opportunity to start the process afresh, if need be. This raises the issue of setting up a separate Constitutional Court to whom all issues of political and constitutional implication ought to be submitted so as to free the Supreme Court proper to deal with the litany of cases before it.

    It has to be noted that for now, the case has not been fully decided as what the court ordered is for parties to maintain status quo, which in effect put in abeyance or suspension the constitution amendment process for now.

    The point the Federal Government is making is that the National Assembly appears not to have followed due process in the process of amending the 1999 Constitution. My own take is that, if you have been panel beating a car severally, is not better to buy a new one especially where you can afford it? Clearly, Nigeria can afford to make a completely new Constitution instead of the incessant amendments and alterations being undertaken on it. The confusion is so much that it is becoming difficult to know exactly what the provisions of the Constitution are especially since the National Assembly has not made any effort at producing one single document that incorporates all the amendments and alterations, excluding, by the document, all the deleted provisions.

    The National Assembly seeks to amend the Constitution such that the process of amendment of same is made similar to what obtains in the amendment of an ordinary Act of the National Assembly. To me this is against the tenets of the principle of Checks and Balances, which modifies the principle of separation of powers to the effect that each arm of government should serve as a check on the other arms so that no single arm arrogates to itself absolute powers within the government. What the National Assembly seeks to do is to arrogate to itself absolute powers in the law and constitution making processes. Power corrupts and absolute power corrupts, so says Thomas Jefferson. I am not in support of the proposal by the National Assembly. I think the powers of the executive represented by the President to have a say in constitution making and amendment must remain sacrosanct.

    We shall however have to wait for the decision of the Supreme Court as to the constitutionality or otherwise of the procedure being adopted by the National Assembly.

    Another point to note is that the process of making or amending an ordinary Act of the National Assembly is quite different from the process of amending the Constitution, while the process of amending the Constitution itself is different from the process of amending Section 9, Section 8 and Chapter 4 of the 1999 Constitution (on fundamental rights).

    Section 9 of the Constitution, which is the relevant section provides as follows:

    “9. (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution.

    (2) An Act of the National Assembly for the altertion of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States.

    (3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States.

    (4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.”

    This provision is clear. For the National Assembly to amend the Constitution, it is enough if it gets two thirds of the entire membership of the National Assembly and two thirds of the States Houses of Assembly vote in support of the amendment. But for it to amend Section 9, it must get at least four fifths of the entire membership of the National Assembly in addition to the two thirds of the States Houses of Assembly. In purporting to amend Section 9 to make it unnecessary to get the President’s assent to amendment of the Constitution, did the National Assembly get the requisite four fifths of the entire membership of the National Assembly? Section 9 made reference to Sections 48 and 49 in deciding how members are required to vote. It clearly portends that the calculation must include all members (whether present or not) of both Houses, Senate and House of Representatives. This means 103 Senators plus 360 Members of the House of Representatives making a total of 463 members of the National Assembly. Four fifths of this figure is approximately 370 members. Has 370 members of the National Assembly voted in support of the amendment of Section 9? This is the question before the Supreme Court.

    We cannot go into the answers at this stage since it will amount to subjudice and contempt of the Supreme Court to start commenting on the substance of the case until the court gives its decision.

    But it must be stated that the step taken by the Federal Government is a good one submitting, as it were, to third arm of government.

    Again, the Federal Government should also be commended because it might as well have left the National Assembly to do what it was doing knowing that the effects can only be felt by the incoming Buhari administration thereby possibly causing it problems.

    All in all, we must wait on the Supreme Court to hear the case fully and give its verdict. For now, the court is asking whether or not the case was properly instituted or not in the sense of whether it was not better for the President to have brought the case in his own name instead of bringing it through the Attorney General of the Federation. The court’s decision in this regard will go a long way to enrich the Nigerian jurisprudence.

     

  • Why Fed Govt can’t establish land registry, by Okunnu

    Why Fed Govt can’t establish land registry, by Okunnu

    When it comes to land matters, legal icon and former Federal Commissioner for Works Alhaji Femi Okunnu (SAN) is no push over. He is versed in land law. He challenged the decree  empowering the Federal Government to confiscate land within 100 metres of the sea shore in court and won. In this interview with Assistant Editor LEKE SALAUDEEN, Okunnu talks about contemporary issues on state land administration.

    Why did you take Federal Government to court over Lands Title Vesting?

     

    Former Military President Gen. Ibrahim Babangida promulgated a decree on Lands Title Vesting which empowered the Federal Government to appropriate or confiscate lands within 100 metres of the shore of the Atlantic Ocean belonging to whoever, whether states, firms or individuals. For example, any land from Benin Republic border to Cameroun border, within 100 metres of the sea shore, was simply expropriated without compensation. The decree vested the title on the Federal Government. It affected all the coastal states: Lagos, Ogun, Ondo, Edo, Delta, Bayelsa, Rivers, Akwa Ibom and Cross River.The one that affected Lagos in particular was the land reclaimed from the Atlantic Ocean for the lagoon. In effect, the whole of Victoria Island, Lekki, Lagoon shore of Lagos Island or any land reclaimed up to Ikorodu, Iddo, Apapa on to Badagry were affected. So what was left of Lagos?

    I took the Federal Government to court as a Nigerian citizen, with the backing of the then governor of Lagos State, the late Sir Michael Otedola. The case dragged on till 2000 when I got judgment. In spite of the judgment, former President  Olusegun Obasanjo re-enacted the decree in 2004, not by going to the National Assembly for a new Act. He acted under a section of the Constitution which still empowers the President or a Governor to amend an existing law. But the law (Lands Title vesting) ceased to exist in 2004 because the Federal High Court has declared it illegal and unconstitutional. Obasanjo was badly advised by his Attorney-General at the time because that Act was still in the laws of the Federation. That was the subject matter of the first and second editions of my book titled: “Contemporary State Land Matters in Nigeria: The case of Lagos State.’’

    The decision in that case effectively nullified the obnoxious Lands (Title Vesting) Decree No 52 of 1993. Anyone who claims to have any kind of title to land on the foreshore or islands must regularise his title with the Lagos State Government.

    The entire landmass of Lagos State as prescribed by all the laws establishing the state of Lagos, excluding those lands granted to the Federal Government for Federal purposes, belongs to the government and people of Lagos State.

     

    What is the focus of your new book?

     

    The book is on a different format. It discusses the Federal State Land and the State Land of the state. For example, in Lagos State, the problem is bigger here because of large volume of federal land in Lagos.

    The new edition also discusses fully other areas of dispute between the Federal Government and the State governments. For instance, the Federal Government has established land registry in Lagos supposedly to register Federal lands in Lagos and probably it is being done in other states. It has no legal basis. It has no backing in law. Land is a state matter. When we talk of land administration, we are talking of physical planning which is a state function. Federal Government should have no land registry in any region or state. Since the Federal Government was established in 1954, federal state lands in any region or state are used to be registered in land registry in the state capital.

    All I have said about land registration do not apply to the Federal Capital Territory (FCT) in Abuja. Federal Government owns the land in Abuja as it used to own the land in Lagos before the creation of Lagos State. But since the creation of Lagos State in May 1967, Titles to State Lands in Lagos was transferred to Lagos State Government. That is why the Title of a place like Ikoyi which used to be vested in the Federal Government was transferred to Lagos State Government.

    Another issue discussed in the new edition is about issue of Certificates of Occupancy (C of O) in respect of Federal State Lands in Lagos. Only state government has the power in law to issue C of O to any land owner including the Federal Government in respect of lands located in that state. But in recent years, Federal Government has been issuing C of Os in respect of land transaction concerning Federal State Lands in Lagos. There is no legal or constitutional backing for that.

    The third issue raised in the new edition is what are Federal Lands in Lagos? For example, the issue of ownership of Tafawa Balewa Square (TBS): Who owns TBS, Federal or state government? Who owns a good number of lands being claimed by the Federal Government in Lagos.

    Another issue addressed in the book is about land along navigable waterways like Lagos lagoon. For example, the Federal Government with armed police/soldiers stopped construction work on the land on Lagos lagoon behind Falomo Police Barracks. The project belongs to Lagos State Government. But the Federal Government  officials with armed soldiers stopped the project. The question is who owns the land along navigable waterways like Lagos lagoon. That problem was highlighted recently by some incident along the Lagos lagoon in Southwest Ikoyi wherein officials of National Inland Waterways Authority (NIWA) with armed police demanded fees from land owners along the lagoon for being within the right of way of the lagoon. These are issues raised in this new book including how much of Navigable Inland Waterways Act is legal or illegal? It also touches on political and constitutional history of Lagos from 1861. It also talks about land tenure in different states of the federation and many more issues.

    What motivated you in writing the book?

     

    One, as a Nigerian, I am trying to show in various states of the country what is state land belonging to the state government of a particular state and what is federal state land within each state of a particular state.  I have presented the distinction of going back to 1954 when the colonial government set up the federal system of government in Nigeria. The controversy assumed new proportion in Lagos State after the Gowon government defined what was federal state’s land and what was Lagos state land after discussions between the representatives of the two governments and the approval by the Supreme Military Council headed by Gen. Yakubu Gowon.

    Another motivation is that it pleased Allah that I was a Federal Commissioner for Works and Housing during Gowon’s era from 1967 to 1974 and in-charge of Federal lands throughout the country. I thought I should pass my knowledge acquired as the Minister in-charge of federal lands at the time and the knowledge acquired since I left government in 1974 to the Nigerian public all in the interest of good governance, harmony and peace among the states and the people of the country.

     

    To what extent will it benefit  the public

     

    The issues raised should interest general readers. A number of people bought lands from the Federal Government in Ikoyi and other parts of Lagos city. They have problems with Lagos State about titles. The claim to land with the right of way of inland waterways will have profound effect on all landed properties along the right of way of all navigable inland waterways in Nigeria including Rivers, Niger, Benue, Sokoto, Kaduna, Gongola, Taraba, Cross River, Forcados, Benin, Ethiope, Warri, Imo, Lagos Lagoon, Anambra and Ogun Rivers, Lake Chad and several others as defined in the Act.

  • Man remanded for theft

    Man remanded for theft

    Chief Magistrate Abimbola Komolafe of an Ikeja Chief Magistrate’s Court has ordered a 58-year-old man alleged to have stolen a N120,000 phone to be remanded in prison custody pending the advice of the Director of Public Prosecution (DPP).

    The prosecutor, Inspector Eramus Nnamonu, alleged that the defendant used a toy gun to rob one Chief Omololu Adegbuyi.

    Peter, whose residence is unknown, was said to have committed the offence on February 24, this year at Gbagada Junction, Lagos.

    The accused was arraigned on a one-court charge of stealing before Magistrate Komolafe.

    According to the Police Prosecutor, Inspector Nnamonu, the offence was contrary to  Act, Cap. 398 vol. XX11 of the Federation of Nigeria 1990 as amended.

    However, when the charge was read to the defendant,  he pleaded not guilty to the one count charge preferred against him by the police.

    But Chief Magistrate Komolafe rejected his plea, saying that the court would wait for the advice of the Director of Public Prosecution (DPP).

    Subsequently, the prosecutor urged the court to remand the accused, pending the advice of the DPP.

    The court granted his request and ordered the defendant to be remanded in prison custody.

    Chief Magistrate Komolafe adjourned the matter till June 4, this year.