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Category: Law

N10b suit: Court dismisses application against Braithwaite

Justice Doris Okuwobi of a Lagos High Court sitting in Ikeja has dismissed the application filed by Standard Chartered Bank against the N10 billion suit brought by renowned lawyer and elder statesman, Dr. Tunji Braithwaite.

Braithwaite sued the bank for erecting a high-rise structure with a multi-level car park close to his residence on Victoria Island, Lagos.

In her ruling Justice Okuwobi, dismissed the application for lack of merit.

The issues raised by the claimant did not hamper the case, she said.

She said: ”I do not foresee that the defendant/applicant will be denied the right to plead his own case in full and that he will be denied the right to fair hearing. For this reason, this application cannot sail through. Consequently, it is accordingly hereby dismissed.”

The bank prayed the court to strike out some paragraphs of the claimant’s reply to the bank’s amended statement of defence.

The claimant amended his claims, prompting the defence to do the same. Expectedly, the claimant exercising his right of reply to the respondent’s amended statement of defence, raised vital issues in support of its position.

In its response, the defendants urged the court to strike out certain paragraphs it considered inimical to it, and argued that new facts outside the issue in contention were introduced by the claimant.

Earlier, Dr Braithwaite had urged the court to fast-track the proceedings, adding that the defendant is capitalising on the delay to continue to dissipate the res, as they have continued building up to the 13th floor.

But the defendants through its counsel, Adeniyi Adegbonmire in his submission, denied claims that it was delaying trial.

Adegbomire said that he had already started cross examining the witness before the plaintiff sought for the amendment of his statement of claims.

He argued that it is the right of the bank to build, added that the matter had delayed so far because the plaintiff decided to seek injunctive reliefs rather than pursuing the trial.

He said the motion on notice filed on Friday, May 8, was predicated on the fact that the plaintiff decided to introduce new facts that should have been in its statement of claims in the reply to their amended statement of defence.

He prayed the court to strike out the paragraphs containing such averments and hold that the plaintiff includes them in their amended statement of claims.

Opposing the motion, counsel to the plaintiff, Razaq Okesiji told court that the contents of the claimant’s reply to the defence statement and witness statement on oath are relevant to the subject matter of the suit and necessitated by the averments in the amended statement of the defence as well as the documents introduced by the defence, which were not in existence at the time of filing the amended statement of claims.

He further said the claimant had neither departed, contradicted nor added new item to its claim, which should prejudice the defendant.

He cited several Supreme Court authorities, Okesiji that the reply was within the rights of the claimant and that Order 15, Rule 19 of the High Court Rules allows new pleadings to come up in a reply.

He urged the court to dismiss the defendant application.

He argued that the paragraphs of the claimant’s reply to amended statement of defence and corresponding paragraphs of the statement on oath which the defendant seeks to be struck out relate to the Environmental Impact Assessment Procedure in Nigeria, and the failure of the defendant to compete therewith, which has always been the kernel of the claimant’s case right from the commencement of the suit.

Braithwaite is seeking an order declaring as illegal, the erection of a 15-storey commercial building and multi-level car park by the bank in an otherwise residential area in Victoria Island, Lagos.

The claimant is also uncomfortable with the bank’s installation of giant industrial generators directly opposite his house with the concomitant fumes and noise shattering their air and serenity.

In view of this, Braithwaite is praying the court to grant him N10billion in damages and a demolition of the building.

July 8, 2014
Allged N1.8b subsidy fraud: Court declines to quash charges against marketers

Two marketers, Mahmud Tukur and Alex Ochonogor, have failed to quash the N1.8billion fuel subsidy fraud charge preferred against them by the Economic and Financial Crimes Commission (EFCC).

Justice Lateef Lawal-Akapo of the Ikeja High Court dismissed the application because it is premature.

He said some of the issues raised by their counsel, Mr Tayo Oyetibo (SAN), particularly the evidence against the defendants, could be raised after the prosecution closes its case.

“It is the law that the court cannot delve into substantive issues at the interlocutory stage. Section 260 (2) of the ACJL provides that an objection to the sufficiency of the proof of evidence shall not be raised until the closure of the prosecution’s case. The provision is a mandatory requirement which renders the application premature,” Justice Lawal-Akapo said.

The oil marketers are being prosecuted alongside their company, Eterna Plc and another marketer, Abdullahi Alao.

According to the EFCC, the oil marketers allegedly obtained N1.8billion from the Petroleum Support Fund for a purported importation of 80.3 million litres of Premium Motor Spirit.

Moving the application at the resumed trial, Oyetibo had argued that the proof of evidence did not support the offences alleged against them.

Oyetibo said the criminal charge against his clients was an abuse of court process and they should be discharged.

According to him, the charge arose from a joint venture agreement between Eterna Plc, Axenergy Limited, Sahara Energy Resources and Ontario Oil for the importation of fuel.

He further argued that Section 10 of the Advance Fee Fraud Act did not empower the EFCC to charge the defendants to court for transactions carried out by Eterna Plc.

But counsel to the EFCC , Mr Rotimi Jacobs (SAN), said Section 260 (2) of the Administration of Criminal Justice Law of Lagos State prohibited the court from entertaining such applications.

Justice Lawal-Akapo has, however, adjourned the matter till Sepember 15 for the commencement of trial.

July 8, 2014
Babalakin, others want charges quashed

The Chairman of Bi-Courtney Limited, Dr. Wale Babalakin and his co-defendants have asked a Lagos High Court, Ikeja to quash the charges preferred against them by the Economic and Financial Crimes Commission (EFCC).

The EFCC arraigned Babalakin on a 27-count charge for fraudulently transferring N4.7 billion for the convicted former governor of Delta State, James Ibori.

Charged with Babalakin are Alex Okoh, Stabilini Vision Limited, Bi-Courtney Limited and Renix Nigeria Limited.

The EFCC had alleged that Babalakin and his co-defendants fraudulently assisted Ibori to transfer the money through various parties to Erin Aviation account in Mauritius to buy a plane.

At the resumed hearing of the matter presided over by Justice Lateef Lawal-Akapo, the defendants through their counsel, Dr. Biodun Layonu (SAN), Mr. Tayo Oyetibo (SAN) and Mr. O. Akinosun argued that the suit was incompetent, urging the court to quash it.

Layonu, counsel to Babalakin, argued that it was unconstitutional for two distinct prosecuting authorities to prosecute one individual.

Layonu, who claimed to have conducted research on the matter, said he was yet to come across any legal instance where such happened.

Layonu challenged the prosecutor to furnish the court with such an instance, where two institutions prosecuted an individual.

He prayed the court to dismiss the case if the prosecution failed to do so.

“Our submission is that it (joint-prosecution) is unknown to Law. There is no judicial authority to support it. If they fail to show that it has foundation in Law, then it is a nullity,” he said.

He said even if joint-prosecution was allowed, the Attorney-General of the Federation was not represented on the statement of charge.

Counsel to Okoh, Oyetibo (SAN), also urged the court to quash the charges. He argued that the suit was unconstitutional, noting that the charge did not contain the offences alleged.

He said the first duty of the Constitution is to ensure that the offence is contained in the charge as claimed.

According to Oyetibo, this is not a technical requirement but that it is of high constitutional importance.

“All the counts did not disclose criminal conduct of what James Ibori did. Nothing in the proof of evidence that support the count against the defendants, second defendant in particular”

“It is an abuse of the court to file a criminal charge against the defendants in a case where the proof of evidence does not support the alleged charge.

Such a proceeding would be oppressive”, he submitted.

Akinosun, who is the counsel to fifth defendant alligned himself with the submission of Layonu and Oyetibo.

He also urged the court to quash the charges on similar grounds.

Justice Lawal-Akapo however adjourned the matter till July 14 to enable the court to hear submissions of the other two defendants in the case.

July 8, 2014
‘Child Rights Act gets action plan’

A meeting of some stakeholders from three states has been held in Lagos to assess the implementation of the Child Rights Act of 2003. ADEBISI ONANUGA reports

CHILD abuse, rape of the girl-child,domestic violence and other vices against the child were discussed as stakeholders from three states converged on Lagos to review the Child Rights Act.

Bayelsa, Cross River and Lagos State are among the nine that United Nations International Children’s Education Fund (UNICEF) is using for the law’s enforcement. Others are Imo, Anambra, Benue, Yobe, Kastina and Osun.

The workshop with the theme: ‘Self-assessment of the Child Rights Law in Lagos, Bayelsa and Cross River states’ was organised by UNICEF and funded by the European Union (EU).

It attracted stakeholders from the Ministry of Justice, Ministry of Women Affairs and Empowerment (MWAPA), the Police, Child Protection Network (CPN), National Human Right Commission (NHRC), the Bench and the bar in the three states, Non-Governmental Organisations(NGOs) and the media in the three states.

They looked into implementation and enforcement of the act and came up with fresh action plans on enforcement to stem the increasing tide of the vices. Of the three states, only Bayelsa is yet to domesticate the law.

On November 20, 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC). The convention was later adopted by the assembly of Heads of States and Governments of the Organisation of African Unity (OAU, now African Union (AU) as the African Union Charter on the Rights and Welfare of the Child (CRCW) in July 1990. Nigeria has signed both the International Instruments and had ratified them in 1991 and 2000. Both protocols reflect children as human beings and as subjects of their own rights.

After heated debates, the bill was eventually passed into law by the National Assembly in July 2003. It was assented to by former President Olusegun Obasanjo in September 2003, and promulgated as the Child Rights Act 2003. Regrettably, only 24 of the country’s 36 states have passed the Act to date but with little or no enforcement in majority of such states. The Act is a legal document that sets out the rights and responsibilities of a child in Nigeria and provides for a system of child justice administration. It recognises the rights of children, restores their confidence and self-esteem and improves their status. It also enables children with disabilities, to enjoy their rights fully, as it provides special measures for their care and protection.

But in spite of the good intention of the law, developments in the country indicate that the law has not translated into improved legal protection for the child throughout the federation. Several issues such as sexual violence, particularly rape of the underage, children living or hawking on the streets, children affected by communal conflict, drug abuse, human trafficking coupled with the weaknesses of the juvenile justice system, have remained a challenge to a successful enforcement of the Act.

Besides, the three states it was revealed that the implementation of the Act is faced with similar challenges. It was discovered, for instance, that all the states have challenges with the Police, even when there are Juvenile Officers.

Vernice Guthrie told participants what was expected of them at the workshop. According to her, participants were expected to identify the gaps since implementation of the Act commenced after its domestication, how to improve on the gaps and come up with a work plan for their respective states on the implementation:

UNICEF Child Protection Specialist, Mrs. Maryam Enegiazu, who gave an overview of the programme, said since the states domesticated the Act, not much effort have been seen to advance the cause of the right of the child in Nigeria, especially to achieve international standard.

She said this explained why UNICEF is taking the issue of the child with all seriousness, particularly on education, health, protection against violence, abuse and exploitation among others.

She said the organisation has been working in adhoc manner by providing training for the Police and lawyers but without achieving the desired result, hence the reason for organising a workshop of this nature.

Despite of the domestication of the Act in most states, Mrs, Enegiazu lamented that the issue of rape has been on the increase. She said their expectation was that states would provide protective environment for the child but that this has not been the case. She said the UNICEF is now placing emphasis on strengthening the social partners to protect the child, particularly in states that have domesticated the Act.

For instance, Hon. Ebamua Empere of Bayelsa State House of Assembly said at an attempt was once made in his state to domesticate the law. He said the bill came before the assembly in 2010 but was sent back to the executive to correct some lacuna discovered in it so that it could be passed and domesticated in the state.

Head, Family Court, High Court of Lagos State, Justice Yetunde Idowu, who gave an account of the situation in the state, said its problems were so many because of its nature. Justice Idowu said, Lagos like other states, has witnessed increased child rape and child hawking among other abuses. She also said there were abuses against the child even at home. She said the state government has, however, taken it upon itself to stem the tide.

According to Justice Idowu, a lot of sensitisation is on-going in Lagos, adding: ”People are being made aware of their rights, that where to go when raped is the Mirabel Centre at LASUTH in Ikeja or the police station. We have also been creating awareness in schools among female students that nobody has the right to touch their body.”

She lamented that in some cases, the culture of the people was a challenge where abuses are coming from the family. She said there was need to let the women know that while they are to be submissive to their husbands, they should not keep quiet when their husband is defiling their female child.

UNICEF Project Coordinator, Vernice Guthrie, said at the end of the one week workshop, stakeholders the three states met her expectations in the sense that they all came together and engage on honest discussions about the degree that their respective states had met statutory obligation about Child Rights Act.

“I think they have done that and they have done it quite effectively. Some of the gaps identified will require reform of the law absolutely”, she noted.

Guthrie said many of the challenges discussed at the workshop reflects challenges in capacity, “so there is going to be more focus on training, institutional engagements, we have the police, the prisons, the judiciary, the bench, social protections, how do they function on a more comprehensible coordinate factions; all those areas are part and parcel of UNICEF programmes and commitment to supporting full implementation of the Child Rights Act. And it has been fully discussed here”.

Guthrie said UNICEF’s first state of support will be to assist and learn from other states the best practice to domesticate the Act; thereafter assist in putting the various institutions in place and of course building the capacity of various stakeholders responsible under the new law. She said that the three states at the workshop have committed to taking the issue raised starting from September, this year.

Director, Child Protection Solutions, Mr. Taiwo Akinlami, one of the stakeholders from Lagos, described the workshop as the coming together of experts to discuss the justice sector. It is a big project that we want to reform the justice sector for quick and justiciable service delivery. He said stakeholders came to look at critical issues of justice reforms as it relates to children in Lagos, Bayelsa and Cross River states as it affects the implementation of the law.

“The making the law, the enforcement and the implementation of the law, all the key sectors were represented in the workshop. Through the workshop, we have come to identify that in Bayelsa, there is no law and they are saying that between now and September, they are going to come up with the law. We have also been able to find out that in Cross river, the family court that sat only one year and is no more sitting, they are going to look back to their budgetary provisions and put their house in order.

“We have also been able to discover that in Lagos, we have offences that not have punishments, for example child defilement, child rape is an offence under the law but it is not criminalised. We have a situation where we are not able to charge offenders appropriately under that law and so we have to use the criminal code. The criminal code, by not making specific provisions as it affects the severity of punishment, which the Child Rights Act has recommended. For example Child molestation, that is rape ,is life imprisonment. Any form of abuse is 14 years’ imprisonment. If we are able to bring it to bare here it will help.”

Justice Doris. E Adokeme of the Bayelsa State High Court, said since the state appears to be the only one that has not enacted the Child Rights law, they have to ensure that the law is enacted soon.

She also stressed the need for the state to do proper sensitisation since the public is not well sensitised in the knowledge of the law.

“In Bayelsa, we will soon establish Family Courts. She, however, counselled that in states, where they have family court, victims should go there get redress of the issue. As I said every court will give redress to any infringement of the Child Rights Act.

July 8, 2014
NBA Presidency: Yoruba lawyers drum support for candidates

AHEAD of the July 15 election of the Nigerian Bar Association (NBA),Yoruba Lawyers Association aka Egbe Amofin is drumming support for its presidential candidates.

The Egbe’s Chairman Chief Bandele Aiku urged his colleagues to respect the group’s zoning arrangement by voting for any contestants from the Southwest as the NBA’s president.

He spoke during a meeting of the group in Ibadan, the Oyo State capital. He said: “It is just a matter of understanding and arrangement – ‘you scratch my back, I scratch your back’. It does not matter who wins the Presidency”.

Mrs. Funke Adekoya (SAN), Mr Dele Adesina (SAN), Chief Niyi Akintola (SAN), Mr Augustine Alegeh (SAN), Midwest and O. J. Erhabor have indicated interest in the race.

Contestants from other zones who came to canvass for the group’s support were Francis Ekwere, Reuben James, Mackson Oruma and Chinwe Nwadike, who was adopted by EBF as its candidate for Treasurer, Afam Osigwe, Steve Abar and T. T. Igba.

Aiku said: “The leaders of the Mid-West Bar came to us in 2012 and indicated interest to be with us. We welcome them and told them that the third round of the zoning arrangement has just started with the Eastern Bar Forum producing the Okey Wali (SAN) as its candidate, the Southwest will produce the NBA President in 2014 and when next it comes to us that is 2020, the Midwest will take the slot and no candidate from the Southwest.

“They thanked us and promised to go, consult with their people and get back to us. We did not hear from them again, what we heard is that they have a Presidential candidate to contest the election with the Southwest.

“We have written to the leadership of the Eastern Bar Forum (EBF) and the Arewa Lawyers Forum (Arewa) intimating them with the situation and telling them who our candidates are. We will still approach them and make our position clearer to them.”

The Secretary of Egbe Amofin, Mr. Ranti Ajeleti, said: “We met and considered our members who are contesting for other offices at the election apart from the Presidency. Where we have only one person contesting for an office, we adopt that person. But where we have more than one person aspiring for the same office, we consider them, choose one and ask the other one to wait. At the end of the day we will meet with the other fora and joggle the list.”

On what he meant by joggling the list, Ajeleti said: “The EBF will come with its list, the Arewa will come with their own and we will sit down and consider the lists on their merit and agree on who gets what. When the leadership of the fora meet on the manifesto night, it will be for the ratification of the status of the candidates” Ajeleti stated

Earlier, the Middle Belt Lawyers Forum (MBLF) held its second meeting in the year in Abuja. It was attended by some members of its Interim Executive Committee. They includE the chairman, Mr. Emmanuel A. Haruna; First Vice Chairman, S. P. Dashi; Secretary, Mr. Agada Elachi; Secretary, Joshua Wapdiye, Debo Adeyemo, Prince I. A. Ochoga.

Also in attendance were some leaders/elders of the Forum,. They included former President, NBA, J. B. Daudu (SAN); Country President, FIDA Hauwa Shekarau; Ocholi James (SAN), Okutepa (SAN), P. O. Okolo, former chairman Abuja branch NBA, A. A. Ibrahim, Chief John Ochoga and Joe Abrahams (SAN).

It was resolved during its meeting that candidates contesting for national offices of NBA that wish to seek the endorsement, adoption or support of the Forum were required to communicate such desire in writing to the Forum.

The Forum adopted the following for some offices in the NBA Election: Reuben Usman James, general secretary; M. I. Komolafe, third vice president; T. T. Igba, welfare secretary; I. A. Ochoga, financial secretary and R.O. Balogun, legal adviser.

Adoption of candidates for other offices will be addressed by the Forum at its next meeting.

Some candidates delivered goodwill messages to the Forum during the meeting. They include Funke Adekoya (SAN), Chief Niyi Akintola (SAN), A.Alegeh (SAN), O. J. Erhabor, Barth Okeye-Aniche, Chairman NBA Abuja branch, and Mr. Desmond U. M. Yamah who represented Mr. Afam Osigwe.

Others were Francis Ekwere, Taiwo Taiwo, A. A. Ashong, Kunle Edun and A. Oluwole.

July 8, 2014
‘Improper arraignment renders trial a nullity’

The Appellant as second defendant along with Sopuruchi Obed were arraigned before Justice M. A. Dada of the Lagos State High Court on a two count charge and upon trial, the Court in a considered judgment dated May 28, 2009 found them guilty for the offence of conspiracy and armed robbery and convicted them to death. The offences were contrary to Section 403(4) and 402 (2) of the Criminal Code Cap (17) Vol. 2 Laws of Lagos State, 2003.

The facts of the case at the trial Court are that the Appellant along one other, Sopuruchi Obed were charged with Conspiracy and Armed Robbery contrary to Section 403 (A) and 402 (2) (a) of the Criminal Code Cap C17, Vol. 2 Laws of Lagos State, 2003. The Appellant and the said Sopuruchi Obed were alleged to have robbed one Mrs. Praise Lawani of various items on September 30, 2004 at Obele Road, off Maigbon, Lagos while armed with a locally made short gun, a knife and eight cartridges. The two accused persons pleaded not guilty to the second count charge and the matter proceeded to trial. The trial Court upon due consideration found the two defendants guilty. The Appellant dissatisfied with the judgment filed a notice of Appeal of 6 grounds upon which three issues for determination were distilled as follows:

1. Whether the arraignment of the Appellant was not in compliance with the law and consequently the entire trial at the lower court was a nullity?

2. Whether non-signing of the record of proceedings of the lower court rendered the proceedings of the day a nullity.

3. Whether the finding of the learned trial judge that the prosecution proved its case as required by law can be supported by the totality of the evidence adduced before the Court.

The issues formulated by the Appellant were adopted by the Court for determination in this judgment.

The Appellant in arguing issue 1 submitted that the arraignment of the appellant was not properly done and the defect had rendered the trial a nullity. He submitted that the law requires that a charge be read and explained to the accused in a language he understands before he can be called upon to take his plea according to Section 24 of Administration of Criminal Justice Law of Lagos State and 36(6)(a) of the 1999 Constitution. Appellant contended that there was nothing in the record of Appeal to show that the charge was read, explained or interpreted to the Appellant before the plea was taken. On this issue he finally submitted that failure to comply with the requirement for a proper arraignment has occasioned a miscarriage of justice and he urged the Court to discharge the accused person as it would be unfair to put the Appellant through a second trial because the case for the prosecution is weak.

Addressing this issue counsel for the Respondent submitted that Section 215 of the Criminal Procedure Act and Section 36(6) (a) of the 1999 Constitution provides for how a person accused of an offence shall be brought to Court unfettered and the charge to be read over and explained to him in the language he understands to the satisfaction of the Court before his plea can be taken. Counsel contended that the provision was not violated by the Court and the Appellant misconceived what an arraignment is and relied on OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 518 AT 567; (1999) LPELR-2356(SC) where arraignment was explained.

In deciding this issue, the Court stated that it is the requirement of the law that necessary steps to a valid arraignment are complied with as provided in Section 215 of the Criminal Procedure Act. The Court further stated that such requirements must co-exist and non compliance will warrant an order of a re-trial as the trial will be vitiated and rendered a nullity. The Court held that failure of the trial court to comply with the requirement of Section 215 of the Criminal Procedure Act rendered the arraignment and trial a nullity. The Court cited the case of JOSIAH v. THE STATE (1985) 1 NWLR (Pt. 1) 215; (1985) LPELR-1633(SC) where the Supreme Court observed that the condition laid down in Section 215 of the Criminal Procedure Act must be strictly complied with. The Court held that the deficiency in the record of appeal concerning arraignment is vital and it has vitiated the trial. The trial was held to be a nullity and this issue was resolved in favour of the appellant.

On issue two, Appellant submitted that by virtue of Section 245 of the Administration of Criminal Justice Law of Lagos State 2007 which is the same as Section 294 (1) of the Criminal Procedure Act, it requires the trial Court to maintain a record of proceedings and the judge must sign the notes for each day. Counsel submitted that this requirement is mandatory and any failure to observe same renders the proceedings of that day null and void. He contended that the additional record were transcribed but were not signed by the trial judge including the proceedings in which the Appellant was arraigned.

The Respondent’s Counsel submitted that the Appellant’s complaint was about the transcribed record of court duly certified as required by law. That Section 145 and 147 of the Evidence Act also prescribe a presumption of genuineness of a certified document and also that Order 17 Rule (9) (1) (c) of the Rules of the Court allow for the use of transcribed copies of record of proceedings as substitute for Judges Notes. Counsel urged the court to discountenance the argument of the Appellant under this issue and find for the Respondent.

On this issue, the court held that the portion complained about are the additional record of appeal and these are the transcripts of the proceedings which are certified by the officer duly authorised. The court stated that it is important to note that the portion of the additional record complained about is not directly the note of the trial judge but transcripts from the recording by an officer authorised to do so and it was duly certified. The court held that the complaint of the Appellant lacked merit. This issue was resolved against the Appellant.

The Appellant in arguing issue three challenged the finding of the trial Court that the prosecution proved its case as required by law. Addressing the issue, Counsel for the Appellant submitted that the prosecution did not prove the allegation according to law. He relied on the case of ALABI v. STATE (1993) 7 NWLR (Pt. 307) 511; (1993) LPELR-397(SC). Counsel submitted that to answer the issue the evidence of the two prosecution witnesses will have to be analysed and when that is done, it can clearly be seen that the evidence was hearsay evidence as both PW1 and PW2 told the Court that Mrs. Praise Lawani told them what they told the court. The said Mrs. Lawani did not testify. The Appellant urged the Court to expunge the hearsay evidence of PW1 and PW2 and to discharge the appellant. Counsel submitted there was no evidence Mrs. Praise Lawani existed. She was not called even when she is a vital witness in proof of whether a robbery actually took place. That in the face of the retracted confessional statement and the Appellant’s alibi which was established, the prosecution failed to prove that a robbery took place. Appellant’s counsel further submitted that there was no clear identification of the Appellant as one of those who participated in the robbery and therefore the Court erred in finding that the Appellant participated in the robbery. And furthermore that the report by Mrs. Lawani was on suspicion since she did not identify anybody on the day the alleged robbery took place.

Counsel for the Respondent submitted that identification parade is not required where the suspect is caught at the scene of crime or closely connected as in this case. Counsel submitted that prosecution is not bound to call witnesses if it can prove its case by those called, he relied on BELLO SHURUMO v. THE STATE (2010) 19 NWLR 9 (Pt. 1226) 73 AT 94; (2010) LPELR-3069(SC).

On this issue, the Court stated that the Police man in the station cannot be a witness to a crime which took place in a different location when he was not at that venue except if he is a spirit. The Court stated the settled principle of law that where direct evidence of the commission of a crime is absent, the Court can infer from the facts proved the existence of other facts which logically and conclusively establish the guilt of the accused, the Court cited the case of AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72; (2008) LPELR-368(SC). The Court held that there is no direct evidence in this case, neither is there circumstantial evidence that can pin the Appellant to the crime without the evidence of a victim on the important aspects of how the offence was carried out.

On the whole, the Court held that the appeal succeeds. The judgment wherein the conviction and sentence of the appellant by the Lagos High court presided over by HON. JUSTICE M. A DADA and delivered on May 28, 2009 was set aside. The appellant was discharged and acquitted.

Edited by LawPavillion

LawPavilion Citation: (2014) LPELR-23124(CA)

July 8, 2014
Ex-banker gets N76m for wrong dismissal

The National Industrial Court of Nigeria (NIC) has awarded N76.6million to a banker, Mr Patrick Obiora Modilim, for wrong termination of his employment.

Justice Benedict Kanyip held that the defendant “constructively and wrongly” terminated the claimant’s employment.

“It is hereby ordered that the defendant shall pay to the claimant the sum of N75,535,128 only being the total sum the claimant ought to have been paid as his emolument for 20 months had the defendant reviewed his level to General Manager on confirmation.

“It is hereby ordered that the defendant shall pay to the claimant the sum of N1,120,221.60 only as damages for the wrongful termination of the claimant’s contract of employment in terms of his constructive dismissal by the defendant,” Justice Kanyip held.

He added the money must be paid within 30 days of the judgment, otherwise it would attract interest at the rate of 10 per cent per annum until liquidated.

Modilim told the court that he was a Deputy General Manager at Zenith Bank when United Bank for Africa (UBA) offered him employment on December 3, 2007.

It was agreed he would be made a General Manager after six months, subject to his meeting set targets. He said he met the preconditions, following which his employment was confirmed on August 5, 2008.

However, the bank, he said, continued to pay him the salary of a Deputy General Manager for the 20 months he worked for them, and did not provide him with two official cars which he was entitled to as General Manager.

According to him, he was allegedly forced to resign on March 31, 2010, while UBA accepted his resignation via a letter dated March 30, 2010, a day before he resigned.

The plaintiff said the defendant’s acceptance letter shows that his employment was constructively terminated wrongfully.

But the bank, in its defence, said it never promised to confirm the claimant’s employment as a General Manager.

It said it confirmed Modilim’s appointment as Deputy General Manager after the probationary period in line with his terms of employment.

The defendant said the claimant resigned his appointment, never worked as a General Manager, and therefore, cannot be paid the salary of a General Manager.

The bank also denied that Modilim was entitled to two vehicles with cash value of N16.4million as he was never a General Manager.

But Justice Kanyip declared that the defendant’s failure to review the claimant’s level to General Manager on confirmation was a breach of his contract of employment contained in the officer letter and letter of commitment, both dated November 23, 2007.

In one of the letters, the bank stated: “Subject to achieving your set targets, the bank is willing to review your level to General Manager on confirmation.”

The bank had argued that the claimant did not prove that he met the targets, and that its expression of its willingness to review his level was futuristic and “does not constitute a contract of employment.”

Justice Kanyip disagreed, saying: “This commitment remains a binding terms of the contract of employment between the claimant and the defendant.

“The defendant is in breach of the contract of employment between it and the claimant. The claimant is accordingly entitled to relief but only in terms of the failure of the defendant to indicate the willingness to review the claimant’s position to the lever of General Manager.”

July 8, 2014
Bank accused of contempt

A firm General Telecom Plc has accused a first generation bank of alleged contempt of court.

It initiated a contempt charge against the bank and the assignee to its mortgaged property at the Lagos State High Court, Ikeja.

In the Form 48 (Notice of Consequence of Disobedience of Order of Court) filed before Justice Bola Okikiolu-Ighile, the plaintiff said the bank disobeyed a bench ruling delivered on April 30.

The court had ordered all parties to maintain status quo over the purported sale of a property at 4, Marconi Road, Palmgrove Estate, Lagos. The firm said despite the order, the bank forcefully attempted to take possession of the property.

The claimant said the bank and the assignee are still occupying the premises even after being served with the Form 48.

The applicant added that the continuous act of aiding the bank and its assignee by the Deputy Commissioner of Police (DCP) Zonal CID to flout the order was a disregard of the authority of the court.

July 8, 2014
‘Only a governor can appoint Chief Judge’

It is also important to note that immediately the governor of Enugu State received the recommendation of N.J.C. that Justice R. C. Agbo be appointed, he in obedience to the precepts of the Constitution sent the name of the House of Assembly for confirmation. By a unanimous decision and the House speaking with one voice rejected our colleague Justice R. C. Agbo. The reasons for the rejection were not made public and the Constitution did not demand any explanation from the House in doing so. The House formally informed the Governor, the development. The Governor in turn communicated the N.J.C. At its meeting of December 2004, the N.J.C. resting again on the principle of seniority recommended the writer as the next so-called senior judge on the list to the Governor for appointment. As usual the Governor sent the writer’s name to the House of Assembly which unanimously confirmed the appointment.

It was common knowledge that some belligerent minds at the N.J.C. were smartening for a long drawn battle with the Government and House of Assembly of Enugu State. But ultimately the N.J.C. under the highly intelligent, savvy, transparent and dedicated Chief Justice of Nigeria meandered away from this ignoble collision course. As we pointed out above, where a House rejects a nominee, a disinterested N.J.C. should be grateful for the indication that something was amiss and see to it that the dangerous condition was corrected. It should not see it as an opening to go into power contests with relevant arms of state government.

The N.J.C. must be commended for not allowing meta-legal factors operating outside the appointing process to affect or prevail over its decision in the matter. To allow faceless and vindictive petition writers to influence who gets appointed as a Chief Judge, would herald the obituary of boldness on the bench. The judicial system should evolve some form of protection for judges who discharge their functions boldly and honestly. All we are saying is that the career of bold and incorruptible judicial officers should not be allowed to be adversely affected by mendacious petitions from those they may have found guilty one time or the other in the course of their judicial inquiries and adjudications. Last minute desperate allegations to the N.J.C. when the victim is not in a position to defend himself must be seen as wicked and inhuman and must be ignored.

If judges should conduct public inquiries and judicial duties with the fear of what those found guilty could do in future to abbreviate their career, then we can as well announce the obituary of justice, firmness and fairness in our justice delivery system. Such meta-legal factors outside the process must be completely kept away from the evaluation of who becomes a Chief Judge of a State. Those outside the process should not be allowed to double cross it. My appointment has obviously set forth a pragmatic and constitutional approach which should be permitted to endure in the interest of honour and integrity in the process. And the obvious surmise from my experience is that the N.J.C. has the prestige to recommend but not the power to appoint or insist on a particular appointment. There is absolutely nothing to point to in the Constitution’s text to support a contrary view. As legal minds we must look solely to the constitution as determinative of the question; or at least mainly thereto. We are not entitled to superimpose our personal ideas on the constitutional provision that is clear. By training and by our external hunt for authority, we are not entitled to move outside the text of the Constitution. But if we must, the approach shall be solely pragmatic.

Conclusion

One thing which we can take away from the above exposition is the awareness that the framers of the Constitution of the Federal Republic of Nigeria 1999, intended the process of appointment of a Chief Judge of a State to be political. Consequently, none of the agencies in the appointing process is entitled to objectify what the Constitution treats as political. The rule of seniority usually exploited by the J.S.C. and N.J.C. in the appointing process must be abandoned. In any case, resort to seniority as the only objective basis for the selection of a Chief Judge is a lazy approach. If we must objectify the process there are obviously weightier considerations. The rule of seniority as the only criterion is contrary to political and constitutional trend and should not be further pursued. Every judge of a High Court of a State is a potential Chief Judge of the State and must be seen as such. In that hallowed climate every judge will want to work hard; want to stay away from corrupt influences and bribery; want to stay away from improprieties and hope for the best. And this development would be good augury for the entire judiciary and the judicial system.

It is also important to emphasise that the principle of federal structure of government in Nigeria has increased the importance of yielding the floor to the Governor and the House of Assembly to ultimately decide who becomes the Chief Judge of a State. Nothing but confusion can result from the attempt to wrestle the decision from the political agencies of the State. No doubt seniority on the bench is a respected criterion but must not be determinative of the selection or succession process especially where there are other measurable performance criteria that will enhance quality and higher standards in our judicial institution. It was this dynamic force that prevailed in my case.

My experience also evinced the triumph of the doctrine of separation of powers. The doctrine refers to the concept that each branch of our tripartite government has its own role and that no branch shall exercise the powers of the other two. Evidently, the separation of powers and the system of checks and balances of each branch over the other is a central feature, and a criteria safeguard of our constitutional democracy.

If the N.J.C. is able to read the handwriting from the State Judicial Service Commission and respect the thinking of the Governor of the state on the matter, the succession exercise will never leave a bitter residue at the end of the day. Obviously, this is not a case for the superiority of the executive arm of government. The idea we are simply trying to put forward is that the various organs involved in the selection or succession exercise must not unnecessarily objectify a process which the constitution has clearly declared to be political.

From the foregoing, the following suggestions emerge:

1. The State Judicial Service Commission (J.S.C.) must recommend to N.J.C. the judges for the appointment after due consultation with the Governor of the State. This approach is desirable in many respects. It will ensure that the person or persons eventually recommended to the Governor are acceptable to him. It will save time and ensure that the three arms of government operate not in conflict but in great complimentarity to one another. Harmonious co-existence between the Judiciary, the Executive and the Legislature has no bearing whatsoever to judicial dependence or independence. Obviously in the process of judging, judges put aside their personal beliefs and dispositions and decide what the law requires and what the facts lead to. The articulate concern for protecting the interest of the court’s decision making process is strictly a legal process, not political. Therefore judicial dependence should not be a cloak that could be thrown around a nominee at the very last minute, and when he may not have the opportunity to defend or explain himself before the N.J.C.

The J.S.C. should also weigh the character, fitness and intellectual competence of the nominees. This is because a Chief Judge must have noble concept of the office and use it to accomplish desirable results. He must also evince some intellectual, moral and philosophical leadership of the State Judiciary.

2. The N.J.C. upon receipt of the nomination or recommendation from the J.S.C. shall forward the names unedited to the Governor, “For his action please”. The governor in exercise of his powers under the Constitution will therefore appoint one out of the names sent. The point we are making is this. If N.J.C. received a list of three judges from the J.S.C. unless there are grave legal reasons to the contrary, it must send the list as received to the governor who then decides ultimately who to appoint from the list. This is the only way the N.J.C. can keep away from political conflagration and retain its awareness and integrity.

3.It is necessary to point out here that most decisions of the J.S.C. and N.J.C. filter into town even before members rise from the meeting. Leaks are vey deplorable and they activate petition writers to go to town. And these leaks diminish the integrity of the process.

4.From the list of three judges sent to the Governor, it will be his absolute discretion to send the name of one of the judges to the House of Assembly for confirmation. If the House rejects one, he would send the other as the case may be until confirmation is received. In similar important appointments at the federal level, three names are usually sent to the President of Nigeria from which one of them gets appointed. No agency of the federal government can or is capable of insisting that a particular person must be appointed by the President. This practice is trouble-free and that is what is envisaged in the appointment of the Chief Judge by the Governor of the state. In short, the argument when reduced to its last analysis comes to the fact that the appointment of a Chief Judge of a State is a political process and the role of the Governor is paramount and prevailing.

5. A judge with fundamental allegiance to law and judicial ethics even if appointed by his father or father-in-law cannot bend the law for him.

6. The honour of being a Chief Judge of a State shall be reserved for only those who have legitimate claim to distinction in character and learning, and or, to those whose temperament, character and administrative tendency best reflect judicial and personal commitment to excellence. In this regard any distinguished legal practitioner at the Bar or in academics who has evinced above attributes and who has been on the job for not less than twenty years could be appointed a Chief Judge of his State. There is nothing in any law or in the text of the Constitution to suggest that the selection must be confined fairly closely to the roster of judges in the State.

7. We must also note, though obvious it may seem, that a judge rejected for the office of a Chief Judge today, could, if he rectified the deficiencies that denied him the position in the first instance, become a Chief Judgein future. That he or she is rejected now does not make him lose his life. He will not lose his Court. He could still go to the Court of Appeal and there begin a journey to the apex court.

Finally, it is well to point out that the matter under evaluation may not be exhausted by any single perspective. Plural perspective may be needed. We leave that to rejoinders and exponents of other views. We are also typically aware that in every lively legal discussion, contrary opinions must sporadically show their heads.

But we insist that the views advanced above are valid, useful, practical, cogent and preferable.

July 8, 2014
Needless controversy over an appointment

The disagreement over the appointment of a Chief Judge of Rivers State is yet to be resolved. Joseph Otteh and Mrs O. Nwabuzor of the Lagos-based rights advocacy group, Access to Justice (AJ) argue that the seeming unending controversy could have been averted.

Prior to the retirement of the erstwhile Chief Judge of Rivers state on August 20, 2013, the Rivers State Judicial Service Commission (“JSC”) initiated processes of appointing a successor by forwarding the names of two nominees to the National Judicial Council (“NJC”); these were Justices P.N. Agumagu and Daisy Okocha.

The NJC deliberated on these nominees and, by a letter dated 22nd July 2013, communicated its rejection of Justice Agumagu’s nomination and recommended Justice D. Okocha for appointment as CJ saying that Justice Okocha was the most senior High Court judge of the state at the time. Notwithstanding the NJC’s decision, the Governor of Rivers State on August 20, 2013, swore in Justice Agumagu as the acting CJ of Rivers State.

On the application of a group called Kengena Unity Forum, a Federal High Court sitting in Port Harcourt, on February 18, 2014, nullified Justice Agumagu’s appointment as the acting CJ and directed the State Governor to comply with the relevant provisions of the 1999 Constitution. However, Justice Agumagu had indeed served out the three month period allowed by the Constitution for an acting appointment, which expired on November 20, 2013.

The Governor wrote to NJC on September 23, 2013 appealing that the Council reviews its decision not to recommend Hon. Justice Agumagu for appointment as CJ, but the NJC stood its ground. This prompted the Rivers Attorney General (Wogu Boms) and the state JSC to file Suit No FHC/PH/CS/421/2013- Governor of Rivers State & 2 ORS Vs The National Judicial Council & Hon Justice Daisy Okocha before the Federal High Court in Port Harcourt asking for a judicial construction of section 271 of the Constitution relating to the appointment of a CJ, and also to determine whether Justice Agumagu was the candidate to be recommended and forwarded by the NJC to the Governor for appointment as CJ of Rivers State.

On March 18, 2014, the Court delivered judgment in the case giving affirmative answers to the questions.

In almost a lockstep timing with the decision, the Governor, on the same day, and on the confirmation of the Rivers State House of Assembly swore in Justice P.C. Agumagu as the 7th CJ of Rivers State. There is an appeal pending on this matter.

One week later, on March 26, 2014, the NJC suspended Justice P. Agumagu from office as a judicial officer as well as issued him a query to answer why he should not be dismissed, justifying its action under Paragraph 21(d) of Part 1 of the Third Schedule to the Constitution.

The Council reached this decision at its 10th emergency meeting of March 26, 2014 where it observed that due process was not followed in swearing in Justice Agumagu to office.

The NJC noted that it did not, at any time, make any recommendation to the Governor of Rivers State that Justice Agumagu be appointed the substantive CJ of Rivers State. Based on the above, the NJC resolved that it will neither recognise nor deal with Justice Agumagu as the CJ of Rivers State.

Appointment of CJs under the 1999 Constitution

Under the Constitution, four institutions are involved in the appointment of the CJ of a state, namely; State JSC, the NJC, the State Governor and the State House of Assembly. To limit absolutism in any one body, the Constitution creates a 4-prong process beginning with the State JSC sending a list of shortlisted candidates for the position of CJ to the NJC (See Third Schedule, Part 1, Paragraph 21(c)).

Next, the NJC recommends a selected candidate to the Governor for appointment as CJ. Afterwards, the Governor appoints the CJ and sends such appointment to the State House of Assembly for confirmation and, lastly, the Governor, after confirmation of the candidate, swears in the candidate. (Section 271(1)).

The constitution contemplates a progressive, consensus-achieving process involving all the institutions involved in the appointment of a substantive CJ of a state. S 271 (1) of the Constitution can be construed to expect all parties to confer with each other until they come to an agreement on a candidate.

Where this consensus is missing, negotiations must continue until an amicable agreement is reached. For example in Abia State, it took close to three years, (from 2011 to 2014) before a “consensus” substantive CJ was appointed for the state. In that time, the governor, with NJC’s approval, appointed three judges of the High Court to act as CJ in turns.

The legality of Justice Agumagu’s “appointment”

Justice Agumagu’s appointment as the substantive CJ of Rivers State was based on the judgement delivered by Justice Akanbi of the Federal High Court. In the judgement, the court answered all the questions put forward to it by the Plaintiffs in their favour.

In particular, the court declared that the Governor had the right to reject the candidate recommended to him for appointment by the NJC. It also said that Justice P.C. Agumagu is a fit and proper nominee and remains the candidate to be recommended to the Governor for appointment irrespective of which court he came from.

The Court further made an order restraining NJC from carrying into effect the decision and recommendation in the said letter of 22nd July 2013 or acting upon it in any way or manner detrimental to the interest of the Plaintiffs or acting in a way and manner suggesting an insistence on the candidate it recommended by its letter of 22nd July, 2013.

(The decision referred was NJC’s refusal to recommend Justice Agumagu on the basis that he was the president of Customary Court of Appeal and not the most senior judge of the High Court Bench of Rivers State. The recommendation referred to is that NJC recommended Justice Okocha instead of Justice Agumagu.)

Looking at the judgement, the question is: Did the “restraining order” take away the constitutional power the NJC had to recommend a candidate to be appointed Chief Judge to the Governor? Clearly no!

The court restrained the NJC from carrying into effect its decision that Justice Agumagu was ineligible to be considered for the position of Chief Judge and its recommendation of Justice Daisy Okocha for appointment into that position. The judgment did not make any consequential orders.

So, was the Governor, by this judgement, entitled to appoint a Chief Judge without NJC’s recommendation? Again, clearly no! The most the judgment could have done is to trigger a fresh round of inter-agency communication on the subject, with the NJC obeying the court’s judgment not to insist on its interpretation of the Constitution, at least until the order is set aside or stayed.

The Governor should have made representations to the NJC based on the judgment and given the NJC the opportunity to comply with the judgment before taking any further steps in the matter. Neither the Governor nor Hon. Justice Agumagu gave the NJC the opportunity to comply with the judgement.

In purporting to appoint Justice Agumagu as substantive CJ, the Governor brushed aside mandatory constitutional stipulations governing the process, as well as undermined the role and powers of the NJC in that regard. (It is trite law that ‘Where a statute has prescribed the mode of performing an act, only that mode of performing the act competently is contemplated otherwise the act will be a nullity’. Abubakar v Nasamu (No. 2) [2012] 17 NWLR 523 at 577.)

For a valid appointment to the office of CJ, no party conferred with constitutional duties in the process can be side-lined, least of all, the NJC. The NJC is key to both the appointment and disciplinary process of judicial officers as judicial decisions have reaffirmed.

AJ believes that the NJC measured up to scratch this time! While the Council may have floundered time and time again in the past, it got it right this time around. In the past, the Council had acted as though it was a toothless bulldog, allowing State Executives ride rough-shod over its decisions, as it did in Enugu, Oyo, Kwara States.

The Council’s efforts to defend its voice and mandate, and, ultimately, the independence and authority of the 3rd arm of government is a welcome new dawn, and, finally, the Council has summoned the courage to be what the Constitution says it should be. This will help it regain respect among other branches of government.

AJ supports the position the NJC has taken on the “appointment” of Hon. Justice Agumagu and urges Hon. Justice P.N. Agumagu to relinquish that office now!

Otteh is Executive Director, while Mrs Nwabuzor is Programme Officer at Access to Justice, Nigeria

June 17, 2014