The Nation Newspaper

Category: Law

  • A vote against hooded democracy

    The picture of a hooded gunman shown on the front page of this paper strutting in the street of Osogbo, prior to the last governorship election on August 9, in the State of Osun, is a metaphor of sorts for our nation. This image hung in the air for me last Friday, as I listened to the Indian Head of Chancery, Mr. Chouhdry, read his country’s president’s address on the occasion of the 68th Independence Day anniversary celebration of the world’s largest democracy. That unknown gunman dressed in a military camouflage, different from that worn by our national armies, could have been anybody, as his identity was hidden. This unidentifiable armed man, perversely protecting our democracy, is actually a denigration of the very foundation of our democracy, particularly safeguarded by section 6(6)(b) of the 1999 constitution, which is the fulcrum of the rule of law.

    That constitutional provision contemplates clearly that there will be disputes in the affairs of men and in the conduct of governance. To avoid resort to self help, which is man in a state of nature, the constitution provides for the resolution of disputes through the courts as arbiters. By wearing a mask, and hiding his identity, the gun man by that act unconstitutionally denies any person or authority he may act detrimental to his/her or their rights, the opportunity to seek redress as contemplated by the constitution. This is because the offended is denied the basic opportunity to indentify the culprit. Thus it is ironical that those behind this aberration did not realize the inherent tragedy of using an unlawful means in their beleaguered attempt to protect our democratic process.

    So as I sat in the audience with the President of the Indian Universities Alumni in Nigeria, Collins Onyenze, who invited me to the ceremony, I listened to the instructive words in the President’s address, that: “Good governance is critically dependent on rule of law, participatory decision-making, transparency, responsiveness, accountability, equity and inclusiveness.”  Again the Indian President said: “A country our size, heterogeneity and complexity calls for culture-specific governance models. It calls for cooperation in the exercise of power and assumption of responsibility, by all stakeholders. It calls for constructive partnership between the state and the citizen. It calls for taking a responsive administration to the door step of every hut and habitation in the land.”

    As I joined others to wish India well on her anniversary celebrations, it occurred to me that the country represents a fair democratic trajectory, as our country struggle to enthrone an enduring democracy. India, made up of diverse peoples, has held on tenaciously to democratic government since her Independence from Britain, 68 years ago. While her economy was nearly at par with ours in the 1960’s; it has been able to lift her economy to one of the biggest economies in the world. Borrowing again from the President’s speech, it said: “Economy is the material part of development. Education is the essential part of it. A sound education system is the bedrock of an enlightened society. It is the bounden duty of our educational institutions to provide quality education and inculcate the core civilizational values (sic) of love for motherland; compassion for all, tolerance for pluralism; respect for women; performance of duty; honesty in life; self-restraint in conduct; responsibility in action and discipline in young minds”.

    The fear for every discerning Nigerian should be that our love for opacity in other spheres of our national life seems to be descending into our national security plans during elections. This is very dangerous. To my knowledge I am not aware that any security agency has owned up as the source of that frightful depiction of official security during an election, in the form of a hooded gun man. While the Osun episode went by without any incident, it is better imagined what will be the reaction of the local people if lives were lost in the hands of these unidentifiable armed men. As far as I know, the only circumstance where security operatives wear mask on official duty is when they are fighting terrorists. And the reason is simply to avoid a backlash, from the terrorists. So the only plausible reason for using similar outfit, during an election, would be to officially harass and intimidate the electorate; which is an aberration in a democracy.

    Obviously those at the helm of affairs are borrowing from the way they operate in other spheres of our national security. As I pen this column, those who surreptitiously bought off our electricity distribution companies through ‘man know man’ instead of technical competence, are still selling darkness to us. While they were able to organize mock sales in their friends favour, they forget that it requires financial muscles, technical savvy and management ingenuity to turn the acquisition into success. Now because the people who sold and the people who bought are one and the same, they are planning to further infuse public funds into private enterprises to make up their inadequacies.

    Reminiscent of the hooded gun man, Nigerians are kept in the dark, while the federal government is seeking for bank loans to buy prepaid meters when some people are the owners of the distribution companies. Again just like in the days of the old National Electricity Power Company of Nigeria, (NEPA) the new owners are also shamelessly sending out crazy bills for electricity not supplied, and like armed robbers, they threaten consumers, if they make representations that the bills are unreasonable; and they will not pay. No doubt, the only road to progress is transparency and accountability whether as a government or a private person.

    Correction: Against my claim last week, the Medical Doctors are still on strike, despite the Ebola threat.

  • Ebola: Lawyer urges caution at NBA conference

    Ebola: Lawyer urges caution at NBA conference

    Lagos  lawyer, Mr. Emeka Nwadioke,has advised the  leadership of the Nigerian Bar Association (NBA) to take steps to prevent the spread of Ebola virus at its Annual National Conference (AGC) in Owerri, the Imo State on Sunday.

    In a statement  titled: “Ebola: NBA should take steps to guard participants and others”, he urged the NBA leadership to assess the threats the conference may pose to lawyers and efforts of local and international stakeholders to stem the spread of the disease.

    He noted that the AGC is reputed as the largest gathering of lawyers on earth, with as many as over 10,000.

    “In consistent with the mode of transmission of the Ebola virus, which include direct physical contact with body fluids of an infected person such as blood, saliva, urine and sweat or contact with objects contaminated by these fluids, I urge the NBA leadership not only to put measures in place to

    safeguard participants at the week-long event, but to also critically assess the adequacy of emergency health care measures aimed to protect lawyers, exhibitors and visitors.

    “This is the least that can be done under this grave national emergency. No effort should be spared to contain this potential pandemic that is already affecting the socio-economic and religious life of the nation”, she pleaded.

    Nwadioke stressed: “If the NBA leadership comes to the view that the risk of Ebola virus spread cannot be adequately managed at this time due to inadequate health care facilities and personnel and the inherently electric nature of AGC activities, perhaps a postponement of the conference may be a valid option.”

    He expressed doubts on the ability of the incoming executive to cope with the potential danger posed by the virus on the grounds of negligence by its wilful endangerment of life.

    Nwadioke recalled:”A Nigerian staff of the Economic Community of West African States (ECOWAS) died of the Ebola Virus Disease (EVD), becoming the third victim of the dreaded virus since its emergence in Nigeria. The latest victim, Jatto Asihu Abdulqudir, a Protocol Assistant at the ECOWAS Liaison Office in Lagos, was among those who assisted the Liberian diplomat, Patrick Sawyer, the index case believed to have brought the disease to Nigeria.

    ”Sawyer exhibited symptoms of the disease on arrival in Lagos on July  20 for an ECOWAS Conference, and died on July 25 at a private hospital in Lagos. This latest incident again gives vent to the highly fatal nature of the Ebola virus disease.

    “The Ebola virus has no known cure and up to 90 per cent fatality rate. There is no vaccine or specific treatment for Ebola. Outbreaks can spread rapidly, with an incubation as brief as two days. Therefore, preventing the Ebola virus from spreading remains the best option.”

    He described the virus manner of spreading “as the largest and worst in history, with the death toll now at 1,014 from 1,848 cases. “In Nigeria, 177 primary and secondary contacts of the index case have been placed under surveillance, with nine having developed EVD, bringing the total number of cases in Nigeria to 10. “Of these 10, three have died while seven are  quarantined in Lagos. Further tracing of contacts is ongoing,” she said.

    The World Health Organisation (WHO), she noted, has declared the  outbreak an International Health Emergency requiring extraordinary response in an effort to contain the pandemic and that the organisation has also taken the unusual step by declaring as ethical the use of ZMAPP, an untested and unproven drug, to try and contain the scourge.

    He added: “Though the role of the Federal Government in preventing the emergence of the Ebola virus disease in Nigeria remains questionable, it was heart warming to note that the government has followed the WHO example by declaring its outbreak a national emergency.”

    Nwadioke stressed that the Ebola threat is real and the development has explained why many countries have put their health care and ports personnel on the highest alert.

    He recalled that barely a week ago, Ken Isaacs, the spokesman for Samaritan’s Purse, whose two American staff contracted the virus while treating patients in Liberia, warned the United States Congress that Ebola is going to emerge with a fury in Nigeria in about three weeks due to Sawyer’s case.

    The United States Centre for Disease Control and Prevention (CDC), Adekoya said, also issued a ‘Level 2 Travel Alert’ on Nigeria, warning travellers to take precautionary measures to minimise their risks of contracting the disease. She pointed out that the above scenario paints a grim picture of the serious hazards posed by the current pandemic in the face of weak healthcare systems and scarce national resources, emphasising that even with less than 15 EVD cases, Health Minister, Onyebuchi Chukwu, raised an alarm on the shortage of care-givers to treat Ebola victims by asking for more volunteers.

    The Ebola virus, according to her, poses a serious threat to care-givers, some of whom have died in the process of treating patients adding: “It is, therefore, better imagined than described if the current state of the Ebola outbreak in Nigeria is allowed to exacerbate.”

    H said it is expected that all concerned will act in a manner that aids a speedy containment of the Ebola outbreak, saying it was against this backdrop and the forthcoming NBA Annual General Conference (AGC)  that made her to urge the NBA leadership to critically assess the threats posed by the AGC to lawyers.

  • Breach of contract: Passenger sues Aero in the wrong court

    The Appellant as Plaintiff at the Edo State High Court, Benin Judicial Division filed an action, by way of a writ of summons, dated July 23, 2008. The Appellant, in her evidence before the trial Court, narrated that she procured a return ticket No.LB 041681E for Benin-Lagos-Benin flight, from the Defendants/Respondents on April 7, 2008.

    The following day, she was to travel from the Lagos airport to Benin airport, but instead, the Appellant was taken to Warri, contrary to the agreement contained in her ticket and boarding pass. Consequently, the Appellant incurred costs and suffered damages, having missed all her engagements and appointments in Benin City on that day. Wherefore she claimed against the Defendants/Respondents general damages for breach of contract by taking the plaintiff to Warri as against the contractual obligation to take her to Benin City and special damages for the shock, psychological trauma and hardship suffered by the plaintiff as a result of the delay and for not been able to meet up with her important appointments.

    The Defendants/Respondents at the trial Court filed a statement of defence dated May 5, 2009, and nine months later, filed a motion on notice asking the court to strike out the suit for lack of jurisdiction. The Learned Judge after taking arguments from both parties, ruled in favour of the Respondents to the effect that the proper Court to hear the suit is the Federal High Court, and struck out the suit for want of jurisdiction.

    It is against this ruling of the Court, that the Appellant now appeals to the Court of Appeal by way of a notice of appeal dated  June 1, 2010, containing two grounds of appeal; seeking an order of the Court setting aside the ruling/decision of the trial Court delivered on the 19/5/2010, and remitting the suit to the Edo State High Court to be determined on its merits by a different judge. On the 11th of June, 2014, both parties adopted their written briefs. The Appellant by their brief of argument formulated two issues for the resolution of the appeal. They are as follows:

    “1. Whether the learned trial Judge was right when he held that the appellant’s claim does not border on breach of contractual obligation but relates to matters arising from aviation and safety of aircraft, under S.251(1)(k) of the 1999 CFRN, or pertaining to carriage of passengers and Goods under S.2 of the Federal High Court (Amendment) Decree No.60 of 1991.

    2. Whether the learned trial Judge was right when he held that the claim of the Plaintiff is not the major determinant factor for the jurisdiction of the Court.”

    The Court adopted the issues formulated by the Appellant in the determination of the appeal.

    On the first issue, Counsel to the Appellant submitted that the trial court was in error, when he held that the Appellant’s claim was principally in relation to matters arising from aviation and safety of aircraft under Section 251(1) (k) of the 1999 Constitution and pertains to carriage of passengers and goods under Section 2 of the Federal High Court (Amendment) Decree No. 60 of 1991. He went on to submit that the Appellant’s claim is based on breach of contract by the Respondent, for being unable to airlift the Appellant from Lagos to Benin as expressly shown on the flight ticket and boarding pass issued to the Appellant. He argued that the ticket confirms that the nature of the transaction between the parties was one of contract as indicated on the top left hand corner of the ticket. Counsel argued that Decree No. 60 of 1991 is not applicable to the Appellant’s case.

    On his second issue, Appellant’s Counsel posited that the jurisdiction of a Court is determined mainly by the nature of the claim as settled by numerous cases. Referring to the case of Oloruntoba-Oju vs. Abdul Raheem (2009) 26 WRN 1 at 15; (2009) LPELR-2596(SC), Counsel submitted that jurisdiction of a Court is determined by the nature of the claim as against the event that gave rise to the claim. Finally, Counsel submitted that the jurisdiction of a Court is determined by the pleadings and not the statement of defence.

    The Learned Counsel for the Respondent arguing the appeal submitted that it is the Plaintiff’s claim that determines whether the Court has jurisdiction or not. Counsel referred to Section 48(2) of the Civil Aviation Act, 2006, which implements the conventions for the unification of certain rules relating to international carriage by air signed at Montreal on 28/5/1999 as modified, and submitted that the Appellant’s claim is governed by the convention. Referring to the case of Patkun Industries Ltd. vs. Niger Shoe Manufacturing Company Ltd. (1988) 5 NWLR (Pt. 93) 138 at 152; (1988) LPELR-2906(SC), Counsel submitted that the trial Court was right to hold that Appellant’s claim was that of carriage of passengers by air.  On whether the High Court had jurisdiction to entertain the claim, Counsel argued that Section 272(1) of the Constitution confers jurisdiction on State High Courts; subject to the provision of Section 251(1), and other provisions in the Constitution. He submitted also that Section 251(1) allows for additional jurisdiction by an act of the National Assembly, and the Federal High Court Act as amended by Decree No. 60 of 1991, conferred additional jurisdiction on the Federal High Court, to include the carriage of goods and passengers by air. Counsel cited Sections 2(7)(1), to 2(7)(5) and submitted that by the combined provisions of Section 251(1) of the Constitution and S.7(1) of the Federal High Court Act, as amended by Decree 60 of 1991, the Federal High Court has exclusive jurisdiction pertaining to carriage of passengers and goods by air and meteorology. He argued that by the limitation in Section 272(1) the State High Court lacks the jurisdiction to hear the Appellant’s claim.

    In determining the appeal, the Court stated the trite position of the law that determination of a matter, by a Court is null and void if done without jurisdiction, and it does not matter whether the proceedings were well conducted or the resolution well decided. And consequently it is usually considered expedient to resolve same first before proceeding further to decide the matter on the merit. The Court stated that the fact as narrated is not what is in dispute and the vexed question is whether the State High Court (to which the Appellant approached for relief) had the requisite jurisdiction to hear and determine the case before it. The Court further stated that in the cases of KLM Airline vs. Kumzhi (2004) 8 NWLR (Pt.875) 231; Kabo Air Ltd vs. Oladipo (1999) 10 NWLR (Pt.624) 517, it was held that the combined understanding of the provisions of the Federal High Court Act 1973, as amended by Decree No. 60 of 1991, is to oust the jurisdiction of the State High Court, in matters relating to matters covered under Section 251 (1) (k) as amended by the Federal High Court Act, 1973 as supplemented by Decree No.60 of 1991; and aimed at increasing the scope of the jurisdiction of the Federal High Court in respect of the subject matter specified therein. On the other hand it removed from the State High Court, the hitherto concurrent jurisdiction in respect of the affected subject matters or actions: Egypt Air vs. Alh. Abdullahi (1997) 11 NWLR (pt.528) 179 at 187 – 188; (1997) LPELR-6287(CA).

    The Court resolved the issues in favour of the Respondent, and held that the trial judge was right when he agreed with the Respondent, that the Appellant’s claim was not anchored on simple contractual relationship, but that founded on a contract for the carrying of passengers by air, and for which the State High Court lacks jurisdiction to entertain. Consequently, the Court held that the appeal lacks merit and it was thereby dismissed.

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23319(CA)

  • Tribute to Chike Offodile (1924-2014)

    A lawyer Ike Uko in this piece pays tribute to the late Attorney-General of the Federation and Minister of Justice, Chief Chike Offodile.

    When earlier in the month, the news of the passing on of a great jurist and cultural icon Chike Offodile broke, most people, who knew him mourned the passage of the great man.

    I first met Chief Chike Offodile in  2000 at Sheraton Hotel and Towers Abuja, during the Annual General Conference of the Nigerian Bar Association. I was a candidate for the office of Assistant Publicity Secretary in that year’s election.

    Since all senior advocates were automatic delegates, I approached any such senior lawyer I could reach. I approached the genial old man and sought his support for my ambition. He listened to me, wished me well and promised to vote for me.

    I was excited and thanked him. It was unbelievable that such a great man that was Attorney-General of the Federation and Minister of Justice as far back as 1984-1985 could be so approachable. That encounter led me to know more of him.

    As a boy growing up in Onitsha Urban Town in the 70s, one cannot but hear of his name as one of the great lawyers in town. But nothing more than that except seeing lawyers in their trade dress as one went to school in the morning passing through the High Court.

    I discovered that the legal icon attended the great Christ the King College, Onitsha, taught briefly at St. Mary’s Primary School and worked for about 10 years at the then post and Telegram Department (fore-runner to NITEL) before he travelled to England to study law. He qualified in 1959 and came back to Nigeria same year to enroll as a barrister and solicitor of the Supreme Court of Nigeria. There was no Nigerian Law School then and newly qualified lawyers merely enrolled in the Supreme Court and go straight to practice.

    Chike Offodile practised under another giant of the legal profession, Chuba Ikpeazu, the illustrious father of Dr. Onyechi Ikpeazu, SAN and others. You can tell much about a person from the company he keeps. Chuba Ikpeazu also attended Christ the King College, Onitsha being among the second set of students.

    He studied Pharmacy at the then School of Pharmacy Yaba and practised it before jetting out again to Cambridge University where he studied law and was called to bar in 1946. He practised and became a Queens Counsel in 1961 before his elevation to the High Court of the Federation Capital Territory, Lagos, in 1962. He was among the pioneer members of the inner bar, who took appointment as judges (as is common in the United Kingdom).

    Back to our subject-matter, apart from legal practice he was very much at home with his Onitsha custom and tradition. He took the Ozo Title and rose to become the Onowu Iyasere of Onitsha. He became Senior Advocate of Nigeria in 1979. As at his death he was the oldest practicing senior advocate in the old eastern region and junior only to two others who got the rank in 1978. In 1984, he became Attorney-General and Minister of Justice under the Military Government of Major-General Muhammadu  Buhari and Brig-Gen Tunde Idiagbon. It was a trying period for the nation that was divided between following the rule of law to the letter and stemming the tide of monumental corruption by the ousted civilian regime of Alhaji Shehu Shagari. Decrees were churned out as is customary in Military regimes to deal with the challenges of the revolutionary government. My condolences go to the family, especially to the Senior Advocate of Nigeria (SAN) son Francis Chukwuemeka Offordile and Nneka Offordile the daughter, a past Legal Adviser of the Nigerian Bar Association.

    •Ike is a former Assistant Publicity Secretary of Nigerian Bar Association (NBA).

  • NBA opens new complex to boost revenue

    The Nigerian Bar Association (NBA) has opened a six-storey building  on Victoria Island, Lagos.

    The building, which was erected through a Build, Operate and Transfer (BOT), is  behind the NBA House and was built by Dr. Wale Babalakin (SAN) through one of his firms, Stabilini Visinoni Limited.

    Outgoing President Okey Wali (SAN) praised Babalakin, describing him as ‘a pride to the legal profession in Nigeria’.

    He said the land, which was given to NBA by the Law School, had remained unutilised despite being located at a prime place.

    Wali said the property was developed in order to boost NBA status as well as shore up its revenue base, just as he emphasised the need for continuity in governance.

    Wali said: ‘I must thank our colleague, Dr. Wale Babalakin (SAN), for what he has done in putting this up in collaboration with the NBA. The terms are clear. It is a Build, Operate and Transfer. I thank Wale for the industry he has put into this.

    ‘Also, it is the grace of God to start from foundation and see the completion. We have to put on record the gratitude to all past presidents of NBA. It is a testimony to the continuity of governance at the Bar that leadership or government of NBA continues.

    ‘Leaders come and go but the continuity of NBA project persists. Just like you know, by His grace, within the next two years in the life of the next administration, we will be in Abuja to inaugurate the NBA House, which this administration has started.’

    Wali expressed gratitude to the Director- General, Nigerian Law School, Lanre Onadeko, as well as the Chairman, Council of Legal Education,  O.C.J. Okocha (SAN), among others, for granting access to the new building through the Law S

    chool premises.

    Babalakin explained the difficulty in creating access to the property, noting that the area was landlocked.

    “The only way we could go in was if we were able to create that access you see now. With his (Wali’s) determination as well as that of the Director General of the Law School and the Chairman of Council of Legal Education; it happen.”

    Babalakin acknowledged Wali’s “thorough dedication” to the project, adding: “He came to Lagos specifically for this project on a number of occasions, and I recollect with great appreciation and sometimes nostalgia how we walked round this premises, not once, not twice, when we were trying to identify the entry into the building.

    “In the same vein, I want to thank our incoming President, Augustine Alegeh (SAN), who is here today and who has just won a very convincing victory. I have no doubt he has the capacity, the mental fortitude and determination to push the NBA to the next level.”

    Babalakin also expressed gratitude to the former Director-General of the Nigerian Law School, Dr. Tahir Mamman, for his invaluable role in making the project possible.

    At the ceremony were the incoming NBA’s General Secretary,  Afam Osigwe; National Treasurer, Joyce Oduah; a former General Secretary, Obi Okwusogu (SAN); and Executive Committee Member,  Osita Okoro.

  • Whither conference report?

    Whither conference report?

    The National Conference rose last week after a four-month deliberation. Its report is expected to be submitted to President Goodluck Jonathan on Thursday. Where does the country go from there since the conference had no legal backing? Precious Igbonwelundu asks.

    Introduction

     

    FOUR months after it began sitting, the National  Conference rose last week with a voluminous report to  be submitted to President Goodluck Jonathan on Thursday.

    President Jonathan inaugurated the conference with pomp last March 17 to jaw-jaw on how to correct the foundational problems of the nation.

    Coming at a time of ethno-religious conflicts, political tensions, insecurity, massive unemployment and poverty, observers described the President’s action as a ploy to win public sympathy, especially because the conference was not backed law.

    Sceptics insisted that the gathering was not a national conference unless its outcome would be subjected to a referendum so that the Federal Government would neither abandon nor tinker with it as previous recommendations  by such committees.

    But, despite these controversies, Jonathan, at the conference’s inauguration, charged delegates to deliberate on all issues except the nation’s unity, which he tagged “non-negotiable.”

    When the conference kicked off, there was no stopping it. There were occasions the sessions were rowdy, with delegates almost engaging in fisticuffs, but they always resolved their differences at the  end of it all.

     

    Conference’s Recommendations

    In the course of performing its assignment, the conference made far-reaching decisions, including that elected officials should automatically vacate their seats if they defect to another party and that elective offices like that of the president be rotated among the six zones.

    It encouraged the creation of state police for states who desire it; the establishment of constitutional court as well as an anti-corruption court; the creation of 18 new states and that creation or dissolution of local governments should be the business of states, by extension, suggesting a two-tier federal system.

    Other new recommendations are compulsory military service for all Nigerians; approval of independent candidacy; appointment of 18 ministers with at least three from each of the six geopolitical zones; merger of states; and establishment of Independent Grand Jury to investigate impeachable offences against a sitting President.

    The conference also recommended that most of the responsibilities undertaken by the Federal Government be shifted to states and the central government should concern itself with issues of defence, foreign relations, monetary/economic policy and any issue affecting the entire states; it resolved that the revenue sharing formula be tilted in favour of the states since they have been assigned the bulk of the responsibilities; reduction in the cost of governance; local government financial autonomy and removal of immunity currently enjoyed by the president and governors.

    It also recommended the scraping of the government’s sponsorship of pilgrimage;  increment in derivation funds from the current 13 per cent; and life imprisonment for persons convicted of raping minors.

     

    The issue

    Although many Nigerians have congratulated the conference for doing a marvellous job, observers have expressed concerns that the wonderful report like previous ones may never see the light of day.

    Some have expressed doubts that the legislators, saddled with law making and amendments, but most of who have been accused of widespread corruption, would accept the recommendations against their interests.

    They fear that the resources, time and even death of some delegates may come to nought should the Federal Government, out of selfishness, refuse to amend the Constitution to accommodate the conference’s report, especially on devolution of power and a weaker central government, restructuring of the revenue sharing formula and rotational presidency.

    Analysts say the country may be plunged into a deeper crisis should the efforts of the delegates be wasted, bearing in mind that the best the President can do is to draft a bill based on the report and forward it to the National Assembly for approval, which may be turned down.

    For a constitution amendment, at least two-thirds majority of the states must be in support, aside the National Assembly, whereas, for a referendum to come into effect, all eligible voters would be required to participate to arrive at the final binding decisions.

    Either way, the National Assembly, perceived to be anti-conference, has a great role to play because nothing can be accomplished without its support.

     

    Where do we go from here?

    The reality and delicateness of the situation has dawned on Nigerians, who are wondering what the next line of action would be after Jonathan receives the report. Will the Federal Government implement the outcome? Should there be a referendum for the people to decide on the report? What can be done to resolve the dilemma?

    Lawyers, who aired their views, described the position as a dilemma, just as they noted that there was no clear-cut position on the fate of the conference’s report.

    They noted that the National Assembly has a greater role to play to save the Federal Government from ridicule.

    One of the delegates to the conference and a professor of  Law, Akin Oyebode, expressed doubt that the National Assembly would endorse the recommendations because the legislature had shown vehement hostility to the conference.

    “Now that we have concluded our assignment, the ball is in the court of the Nigerians to accept or reject our recommendations. The Federal Government, in my view, had better accepted the recommendations if it does not wish to become a laughing-stock.

    “Here we have a congress of some of Nigeria’s most illustrious citizens coming with far-reaching recommendations after gruelling discussions for more than four months.

    “From day one, the National Assembly had evinced its vehement hostility to the conference. So, quite frankly, I’m not really enthused by the thought of passing our recommendations to it. Their attitude is quite predictable.

    “I am on record as saying that the people themselves should have the last say on the confab recommendations by way of a national referendum just as happened in several African States. After all, we often mouth the shibboleth that sovereignty belonged to the people. Let us for once live up to that averment.”

    A Professor of Law, Taiwo Osiptan (SAN), congratulated the conference, but said the government should not accept all its decisions.

    He said: “The conference did well, but it is now left for the government to accept and reject some of its recommendations. It is not possible for the Federal Government to accept everything. It will accept as many as possible and reject some.

    “I think what the Presidency can do at this point is to sponsor a bill to the National Assembly reflecting the resolutions it accepts for the amendment of the constitution.

    “To me, issues like the devolution of power, local government autonomy are non-negotiable and the government must accept them. Devolution of power aims at making the central government unattractive.”

    Osiptan said a referendum coull only arise if the country was talking about a new constitution.

    “You can talk of a referendum if it is a new constitution, but if it is an amendment of the existing constitution, then, it is the duty of the National Assembly. Again, it is not legally or factually possible for all Nigerians to vote at a referendum. We will still have to rely on representatives,” he said.

    Constitutional lawyer Prof Itse Sagay (SAN) said there have been a lot of confusion regarding where the report should go.

    “Some have said it should go to the National Assembly to be passed into law. Of course, if that is done, it would mean a constitutional amendment, which will involve at least two-thirds of the state.

    “Others are talking about referendum, in which every Nigerian of voting age will participate. Each of the process requires the National Assembly’s endorsement.

    “For me, I would prefer a referendum to be held because that is the only way to get all Nigerians involved and the National Assembly would have no basis for amending or tinkering with the report.

    “Some areas of the report are, indeed, controversial, such as the issue of rotational presidency. This is because it distorts the right of any Nigerian to aspire to any office at a particular time. Such things can be done politically, not legally.”

    He went on:“There is a contradiction in saying local governments belong to the state and a state can create any number it desires or dissolve and then, still saying you want to give it autonomy. That is for the state which created it to decide. The local government is created for the convenience of the state and not the other way round.

    “If you want states to have control of local government creation and administration, then, it has no business being in our constitution and you cannot talk about its autonomy. If local government are going to be states affair, why make provision for local governments in statutory allocation? You let the states fund whatever local governments they have, so, that again is a contradiction. Though, the idea of local governments being within the state is a good one.

    “Despite my observations, I do not think the conference was a waste of time. They did well in a number of areas. They did well in devolution of powers and suggested also that the formula for sharing money between Federal and states should change with states receiving higher.”

    On the proposed creation of new states, Sagay called the recommendation ‘madness’. “That is madness. I do not know another term to qualify it. It is definitely madness for any Nigerian to talk about creation of more states in the sense that virtually all the states we have now are not functional. Most of them survive purely on the hangouts they get from the Niger Delta oil proceeds.

    “So, why create 18 additional babies, who are going to be permanently on a feeding bottle? It does not make sense,’’ said Sagay.

    Another constitutional lawyer, Norrison Quakers (SAN), said Nigerians must understand that constitution amendment is the prerogative of the legislative arm of government.

    “While, we commend the President for initiating the conference , the far reaching recommendations cannot be implemented by the President. The President cannot also initiate a referendum on the amendment of the Constitution, so as to incorporate the far reaching recommendations.

    “I hope that the President’s efforts will not be politicised. It is imperative for the legislative arm of government and the executive to work in the common interest of Nigerians in ensuring that recommendations, which presumably are the expectations and agitation of Nigerians across religious or ethnic divide, are implemented,” he said.

    To former Nigerian Bar Association (NBA) Ikeja branch Chairman, Monday Ubani, the country is in a quagmire over what to do with the conference report.

    He faulted its recommendation on creation of new states, insisting that a referendum should be the way out of the current dilemma. He lamented that the conference had ended with no clear-cut provision of what will happen to its report.

    “Some of the decisions reached at the conference were very qualitative except on the creation of new states, which I consider a minus on those quality decisions. From the look of things the country is in quagmire presently with those decisions. Where should it go to? The presidency? The Legislature? To a referendum?

    “If to a referendum, is there any law backing such? I am afraid none. Warning: May this exercise not be a wasted effort as the survival on this country lies on God and peaceful resolutions of several sore points tearing us apart through a round table discussion like this conference. We should not blow this away as any such action will be to our detriment as a nation,” he said.

    According to Ubani, the conference presented the nation with a last opportunity to stem the tide of disintegration.

    “Everyone in Nigeria except the political class is aggrieved with the present entrenched system that has several faulty foundations. The country is not working. However, it is working for insignificant few that are presently mismanaging the affairs of the country.

    “What some of us advocated from the beginning concerning this conference was for a proper legislation specifying the architecture of the conference which should have Included the modalities, personalities and what will happen to its conclusions.

    “That advice was spurned at and from the look of things the conference has ended without any clear vision as to what will happen to the outcome or decisions of the confab. Our advocacy has always been that we need a new constitution which should be a product of a constituent assembly through instrument of referendum. The people must have the last say on the provisions of the constitution that is needed for the new Nigeria through a referendum,” said Ubani.

     

     

     

     

  • Lawyer wants Nyako reinstated

    ALagos lawyer and human rights activist, Mr. Olukoya Ogungbeje, has asked a Federal High Court sitting in Lagos to reinstate the impeached  Adamawa State Governor Muritala Nyako.

    He claimed he filed the suit in public interest. Ogungbeye is asking the court to declare as “unlawful, unconstitutional, illegal, null and void” the impeachment proceedings and Nyako’s  eventual removal.

    Joined as the first to sixth defendants  are the Acting Governor of the state, Ahmadu Fintiri; the state House of Assembly; the outgone Chief Judge of the state, Ambrose Mammadi; Chairman of the impeachment panel, Buba Kajama; the Independent National Electoral Commission (INEC) and the Inspector-General of Police.

    In the suit numbered FHC/L/CS/1180/14, Ogunbeje is seeking a relief among others, an order of the court to compel Fintiri to vacate office with immediate effect and reinstate Nyako.

    It would be recalled that following the adoption of the report of a seven-man investigation panel, which indicted Nyako of 16 counts of gross misconduct, he was impeached on July 15,  by the state House of Assembly and the  speaker, Umaru Fintiri, was sworn in as the acting governor.

    Ogungbeje contended that the process that led to Nyako’s impeachment was unconstitutional as the ousted governor was not  served with the impeachment notice.

    According to him, the failure of the Adamawa State House of Assembly to serve Nyako with the notice was a violation of Nyako’s fundamental right to fair hearing as enshrined under Section 36 of the 1999 Constitution.

    Setting up the investigation panel after a court order had restrained the House of Assembly from doing so, the lawyer argued, amounted to contempt of court and a display of defiance and flagrant disobedience to the court.

    He also allegd bias on the part of the former Chief Judge, Justice Mammadi, who set up the investigative panel while his order restraining the House from setting up the panel was still subsisting.

    No date has been fixed for the hearing of the suit.

  • Lawyer becomes Labour Party chair

    Labour Party (LP) Federal Capital Territory chapter  has elected Comrade Ashimole Felix Chukwuma as its  chairman   and 19 others to pilot the affairs of the party in the next three years.

    Ashimole, a graduate of the Faculty of Law, Lagos State University(LASU), was called to the Bar in 2003 .

    He was a member of NBA Abuja branch, the (Unity Bar) before he transferred to Bwari Bar.

    He is a partner, Che Oyinatumba & Associates, a labour law, human rights and public interest litigations firm.

  • UN,group call for corruption eradication

    The United Nations Global Compact Network Nigeria and  the Nigerian  Economic Summit Group (NESG) have  called for a collaborative fight against corruption.

    They made the call during a media interaction organised by the group.

    Mr. Innocent Azih  said the organisation is a business community focused initiative to enable operators understand that corruption is an anathema and that there is an international collaboration to punish offenders. He urged the media to collaborate and partner the group to make sure that  this global objective is accomplished.

    The  Senior Civil Society Coordinator, Olajobi Makinwa, who is also the head, Transparency and Anti-corruption unit of UN Global Compact,  said the group had been implementing the call in about 15 countries.

    She said: “Other development policies and agenda will not be accomplished unless corruption and good governance are taken into consideration.’’

    Makinwa said the government needs to address corruption because they are part of it and must be part of the solution

    She called on the government to   include anti-corruption provisions in its development agenda.

    The Company Secretary, Corporate Services,  NTN, Uto Ukpanah said UNDC is public sector driven, noted that in 2012, the theme was sustainability but last June, the call  was made for anti-corruption policies to be embedded in the  development agenda of the world.

    She called on the government to implement the tenets of the UN Convention on corruption which most countries of the world have signed, stating that it is one thing to sign the convention and another thing to implement the provisions of the convention.

    “The call to action is an appeal by the private sector to governments, urging them to promote anti-corruption measures and to implement related policies to establish systems of good governance.

    “All companies are invited to add their names to this statement. In signing the Call to Action, companies commit to pursuing transparency and fighting corruption.

    The Call to Action will be forwarded to UN Secretary General Bank Ki-Moon to high-light the private sector’s continuing efforts to work with other important stakeholders, their names  will also be featured as a signatory on the UN Global Compact’s Website. In addition, signatories to the Call to Action will be acknowledged at the UN Global Compact’s 10th Principle Anniversary to be held  in New York on December 10.

  • Bill on juvenile offenders for National Assembly

    Bill on juvenile offenders for National Assembly

    Will the adjudicating and sentencing guidelines produced by the Nigerian Law Reform Commission  (NLRC) for juvenile offenders serve its purpose? ADEBISI ONANUGA reports 

    Stakeholders converged on Makurdi, the Benue State capital  last week to fine tune a draft adjudication and sentencing guidelines for child offenders.

    The guidelines are based on the provisions of the Child Rights Act 2003. It is intended for use by judges and magistrates  to enable them operate uniform process in adjudicating  and sentencing erring child across the country.

    Mainly, they are meant to create platform for child offenders at pre-trial and after trial stages.

    The stakeholders, drawn from selected states, had representatives from ministries of justice. The judiciary was represented by  judges and magistrates; states’ ministries of women affairs; representatives of the Child Protection Network (CPN) among other NGOs; social workers; the Police and Commissioners of the Nigeria Law Reform Commission (NLRC).

    The three-day conference which held in collaboration with the NLRC, the United Nations Children Education Funds (UNICEF) in partnership with the United Nations Office on Drugs and Crime (UNODC) and funded by the European Union(EU) at Smile View Hotel, Makurdi, between August 11 and August 15, was considered a critical part of  Justice sector Reform programme for the country. It is a five-year programme initiated to  provide support to key stakeholders at various governmental levels and in nine focal states and the FCT. The nine states include, Imo, Anambra, Benue, Yobe, Katsina, Lagos, Osun, Cross River and Bayelsa.

    The guidelines reflected the legal and social protection requirements provided in the Child Rights Act.

    At the conference, professionals in justice delivery sector and other participants committed to justice sector reform and the protection of child rights, carried out a comprehensive  critique of the draft guidelines, with a view to improving  and finalising  the document.

    Once finalised, the guidelines will be forwarded to the Attorney-General of the Federation and Minister of Justice and states’ Attorneys-General before it is placed before the National Assembly for an  enactment of necessary law to back it  usage by the judiciary across the country.

    In reviewing the draft guidelines, participants were grouped and given specific tasks, using specific formats to arrive at decisions that would be in the best interest of the child. This is to ensure that the final document comes out in simple, specific and unambiguous language.

    Examples of offences critiqued include stealing of food of low value from a local shop; stealing of high value items like mobile phones on the street (pick pocketing); planned stealing of lady’s handbags by groups or gangs; assault (single blow) with lesser harm and lower culpability; sustained or repeated assaults with greater harm and lower culpability. There are also planned assaults with a degree of premeditation or group attack and or with use of weapon with greater harm and higher culpability; terrorism; possession of explosives or weapon courier; terrorist attacks including failed attacks and use of psychotropic substances- first incident and very small amount, where the child is a regular user, where the child repeatedly use drug and failed to respond to previous orders.

    Other offences include rape-sexual intercourse involving child offender of similar age, who consented; penetration involving a victim of similar age, who did not consent and penetration involving a victim, who didn’t consent and at least one aggravating factor among other specified offences enumerated in the draft guidelines. The various groups made their suggestions and recommendations as appropriate, and the specifics were agreed on in the interest of the child by participants.

    Participants  shared their experiences on the field. One of them, Lilian Ekanem, said the role being played by Child Protection Network (CPN), other non-governmental organisations and traditional institutions must be recognised and supported by government for the protection of children in Nigeria.

    Ekanem, who is the Chairperson, Cross Rivers State chapter of CPN, said her suggestion was as a result of her experiences on the field. According to her, whenever there are issues of children against the law or rape among others, the organisation is always the first to be called, even by the police, to give assistance because of their experience and knowledge on child related issues. She said in spite of her organisation’s lean resources, the police depend on them for funds for transportation and investigation of abuses. She said they also bore cost of laboratory tests and medications in the case of rape.

    Taiwo Akinlami, who is Executive Director, Child Protection Solution (CPS), Lagos, said the organisation discovered disparities in states that have domesticated the CRA 2003. He lamented that in spite of the high crime rate involving children against the law and large number of police stations, only two stations, Alakara and Adeniji-Adele, have specialised units for child protection. He noted that efforts to include child protection in the curriculum of the Police College have proved abortive to date, including lack of budget for police training.

    Benue State Chief Judge, Justice Iorhemen, Hwande, described the conference as lively saying that most of the issues thrashed by participants are very important in the CRA and in the interest of child offenders.

    Justice Hwande said Benue State has domesticated the Act and is at the stage of implementation. Efforts, he said, are in advanced stage to get the family courts in operation in the state. He said when this is done, judges and others from the state, who came from the Ministry of Women Affairs, would be of great assistance in the implementation of the Act and the guidelines.

    UNICEF Programme Coordinator, Vernice Guthrie, said the forum provided opportunity to talk about a practical framework to give the CRA a firm footing and complete implementation for use in the court and by other key institutions.

    Vernice described the development as a critical begining and part of a much neeeded multi-purpose process for the courts, adding that UNICEF is committed to making the CRA and the guidelines to work for the courts in Nigeria and in the interest of the child offenders with the support of the EU.

    She said participation at the conference has been fascinating, but according to him, there is still a lot to be done to change participants’ mindset and imbibe the new information process to ensure delivery in all areas of the CRA and in the scheme of things.

    On how to reach the states that have not yet domesticated the CRA, she said the programme  would serve as templates for other states.

    Vernice said UNICEF is committed to providing technical services and support to other states to domesticate the CRA into law.

    Chairman, Nigerian Law Reform Commission (NLRC), Prof. Oserheimen Osunbor  said the essence of the conference was to evolve guidelines for bodies involved in handling cases of child offenders. He noted that the conference was well attended as it had in attendance, not just commissioners of the NLRC, but also UNICEF representatives and other stakeholders  involved in advocacy on the right of children.

    Osunbor said it was heart warming that   participants are well informed and  have been working as specialists on child protection and rights, including lawyers and non-lawyers, the police with vast experience on matters concerning the rights and protection of children.

    He stressed that the quality of their contributions reflected their cognate experience on the field, adding that their contributions enriched deliberation and would impact positively on the outcome of the exercise.

    He said the project emanated from the first stage of the sentencing guidelines project embarked upon by his commission in 2012. “It is one of the project directed at introducing the draft bill for purpose of giving legal effect to the use of sentencing guildelines by judges and magistrates in Nigeria.                       ”It is one of that project, in the sense that that bill which would be passed by the National Assembly (NASS), hopefully at some future time, would lead to the establishment of the Sentencing Guideline Council under the headship of the Chief Justice of Nigeria(CJN).

    “And the responsibility of the council is to come up from time-to-time with a guideline of the sort that we are doing now and of the such that we would be in phase two of the project which was directed and devoted to some specific offences”, he stated.

    UNICEF consultant on the implementation of the CRA , Leila Nazarali had earlier taken participant through the draft guidelines and appropriate approaches to developing corrective measures. She said the adjudicating guidelines would serve as practice direction for judges and magistrates and other institutions that are going to use the document. Leila explained that the most important aspect of the Act is to ensure that the child offender is not seperated from the parents and that detention is used only as a last resort.

    Leila said in the course of her tour of the states in Nigeria, she discovered widespread disparity and disproportionate sentencing because of unfettered discretion enjoyed by those adjudication. She said the guidelines would help to ensure that children are given uniform sentences for same offence in all the states of the federation.

    Chairperson of Federation of International Women Lawyers Association (FIDA) in Bayelsa State, Mrs. Pere Egbuson said cases of child offenders are most of the time reported to and handled by the association. Egbuson said they have had to contend with issues of ages of the child offenders particularly onn criminal offences. She said plans to domesticate the CRA has reached advanced stage following their particiapation in the UNICEF workshop on the implementation of the Act in June, this year.