The Nation Newspaper

Category: Law

  • When parties may invoke original jurisdiction of Supreme Court

    IN THE SUPREME COURT OF NIGERIA

    HOLDEN AT ABUJA

    ON FRIDAY THE 11TH DAY OF APRIL, 2014

    BEFORE THEIR LORDSHIPS:

    MAHMUD MOHAMMED, J.S.C.

    JOHN AFOLABI FABIYI, J.S.C.

    NWALI SYLVESTER NGWUTA, J.S.C.

    MARY UKAEGO PETER ODILI, J.S.C.

    MUSA DATTIJO MUHAMMAD, J.S.C.

    KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

    JOHN INYANG OKORO, J.S.C.

    Between :

    The Attorney-General of Lagos State …. Plaintiff

    And

    The Attorney-General of the Federation & 35 Ors …. Respondents

    By an Amended Originating Summons  dated 10th August, 2009 and filed at the Registry of this Court on 12th August, 2009, the Plaintiff Lagos State through its Attorney-General, invoked the originating jurisdiction of the Supreme Court and sued the 1st Defendant, the Federation of Nigeria through the Attorney-General of the Federation and claimed that the House of Assembly of Lagos State of Nigeria is the body entitled, to the exclusion of any other Legislative Body to enact Laws with regard to the imposition and collection of tax on the supply of all goods and services within the Lagos State of Nigeria and that the Lagos State of Nigeria or any agency of the State, is the body entitled, to the exclusion of any other body, to assess and collect such tax, and that the revenue of Lagos State Government has been and continues to be affected by the enforcement of the provisions of the Value Added Tax Decree No.102 of 1993, now Value Added Tax Act Cap VI Laws of the Federal Republic of Nigeria 2004, for the determination of the following questions.

    1. Whether upon the coming into effect of the Constitution of the Federal Republic of Nigeria, 1999, the said Value Added Tax Act is an existing law within the meaning of Section 315 of the said Constitution, being a Federal Legislation which is deemed to be an Act of the National Assembly?

    2. If the answer is in the affirmative whether the combination of the provisions of Section 2, 4, 6 and 7 of the said Value Added Tax Act which empowered a Federal organ to impose and collect taxes on the supply of all goods and services other than those goods and services listed in the First Schedule to the said Act amount to an imposition of tax on the supply of all goods and services within the Lagos State of Nigeria and within other States of the Federation?

    3. If the answer to question 2 is in the affirmative, whether Sections 2, 3, 4, 5, 6 and 7 of the said Value Added Tax Act are within the contemplation and competence of the powers conferred on the National Assembly under Section 4 of the 1999 Constitution.

    The 1st Defendant, the Attorney General of the Federation, upon being served the amended Originating Summons, filed a Notice of Preliminary Objection pursuant to Order 2 Rule 29 of the Supreme Court Rules, 2002 and Section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999 urging the Court to strike out and/or dismiss the Plaintiff’s suit on the grounds set out in the schedule to the preliminary objection.

    Before considering the issues, the Court stated that a judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties. The Court further stated that being a challenge to the jurisdiction of the Court to entertain Plaintiff’s action, therefore, 1st Defendant’s preliminary objection has to be determined first. Having been raised, all proceedings must abate until the issue is resolved.

    The two issues the 1st Defendant considers to have arisen for the determination of his preliminary objection as distilled at paragraph 3 of his written brief thereon read:-

    “1. Whether the Supreme Court’s original jurisdiction can be invoked where the Acts and Allegations constituting the main dispute are Acts of an Agency of the Federal Government.

    2. Whether the present suit filed during the pendency of several suits between the main parties on record or their agents does not constitute an abuse of court process.”

    On the 1st issue arising from the preliminary objection, Mr. J. B.  Daudu ( SAN), 1st Defendant’s learned senior counsel, submitted that the original jurisdiction of the Supreme Court is provided for under Section 232 (1) of the 1999 Constitution. And for the original jurisdiction of the court to be invoked, it was contended, the Plaintiff’s claim must disclose a dispute between the federation and a state or states as constituent unit or units or between the states inter-se. The dispute, 1st Defendant’s learned senior counsel further submitted, must be one on which the existence or extent of a legal right of the parties in their capacities as such is involved. Learned senior counsel relied on AG Bendel State v. AG Fed (1982) 3 NCLRI, AG Federation v. AG Abia State (2001) 1 NWLR (pt.625) 689 at 728, AG Federation v. AG Imo State (1993) 4 NCLR 178 and more particularly AG Kano State v. AG. Federation (2007) 3 SC 59 at 1.

    Counsel further contended that the affidavit in support of Plaintiff’s originating summons, only disclosed a dispute between the Plaintiff and an agency of the 1st Defendant. Plaintiff’s complaint, it was further argued, centres squarely on the collection of Tax on supply of goods and services by the Federal Inland Revenue Services which Act makes it tremendously difficult for the Plaintiff or any of its agencies to collect taxes from those sources. He submitted that the Plaintiff’s claim is about restraining 1st Defendant’s agent from imposing and collecting taxes on the supply of goods and services within Lagos State and no more. Being a claim pertaining to the acts of an agency of the 1st Defendant rather than a dispute between the federation and the Plaintiff or between the states themselves as constituents of the federation, the original jurisdiction of the Supreme Court under Section 232 (1) of the 1999 Constitution cannot be invoked by the Plaintiff/Respondent. Further relying on the decision of this Court in AG Benue State v. AG Federation and 35 others (supra), learned senior counsel urged that the Plaintiff’s suit as presently constituted be struck-out for want of jurisdiction.

    On the 2nd issue, learned senior counsel for the 1st Defendant contended that the Plaintiff’s suit which seeks to re-litigate afresh issues that had been tried and decided by courts of competent jurisdiction other than the Supreme Court is an abuse of the process of this Court. Learned senior counsel inter alia relied on AG Ondo State v. AG Ekiti State (2001) 7 NWLR (Pt.743) 706, CBN v. Ahmed (2001) 11 NWLR (Pt.24) 369 and Ogoejofo v. Ogoejofo (2006) 22 NWLR 183 and contends that the suit constitutes an abuse of the process of this Court. Learned senior counsel further submitted that the Plaintiff and the 1st Defendant were the principal parties in suit No.ID/105/01 wherein the Plaintiff obtained a decision in his favour. The nominal parties and the 1st Defendant being dissatisfied with the decision filed appeals CA/L/23/04 and CA/L/727m/05 respectively. The two appeals are still pending. It is the same subject matter, contended learned senior counsel that the Plaintiff raises in the present suit. Again, suit No FHC/L/205/04 between the Plaintiff and the agents of the 1st Defendant as well as Plaintiff’s appeal No. CA/L/428/05 on the same subject matter instantly raised by the Plaintiff, have all been determined against the Plaintiff. The Plaintiff is yet to appeal against the decision of the Court of Appeal. On the whole, Plaintiff’s claim, learned senior counsel to the 1st Defendant submitted, should be struck out and/or dismissed.

    Responding to the 1st issue for the determination of the preliminary objection, Mr. Sofunde (SAN)  for the Plaintiff submitted that it is the claim of the Plaintiff that determines a court’s jurisdiction. Learned senior counsel relied on AG Federation v. AG Abia State (2001) 11 NWLR (Pt.625) 689 at 740 and Izenkwe v. Nnadozie 14 WACA 361 at 363 from which the former decision drew.  Learned senior counsel submitted that a dispute is clearly shown to exist between the Plaintiff and the federation. Learned Plaintiff’s counsel concedes that on the authorities, particularly AG Kano v. AG Federation (2007) 6 NWLR (Pt.1029) 164 at 182 the existence of a dispute between the federation and a state or the states inter-se as constituent units is an essential requirement for the invocation of the original jurisdiction of this Court.

    By the reliefs the Plaintiff seeks and the facts as contained in the relevant paragraphs in his supporting affidavit, Plaintiff’s learned senior counsel contended that the Plaintiff’s suit is challenging the constitutionality of the Value Added Tax Act and the illegality of the collection of tax pursuant to the Act. Plaintiff’s grouse in the suit is not really about the act of the collection of these taxes by the F.I.R.S., an agency of the 1st Defendant, but rather on the legality or otherwise of the legislation on which the acts of the F.I.R.S. are founded. The Plaintiff, it is submitted, has no dispute with the Federal Board of Inland Revenue which remains a mere agent but with the legislative competence of the 1st Defendant vis-a-vis the taxes collected by the Board. Were the Plaintiff’s quarrel to be in relation to the act of collecting this tax by 1st Defendant’s agent without more, it would have been impossible to bring Plaintiff’s claim within the purview of Section 232 (1) of the 1999 Constitution that provides for this Court’s original jurisdiction.

    Learned senior counsel cited the cases of AG Abia State v. AG Federation (2007) 6 NWLR (Pt.1029) 200 and AG of Benue State v. AG of the Federation & 35 others unreported decision of this Court in Appeal No.179/2006 delivered on 25th October, 2007.

     

  • ‘Don’t expose identities of kidnapped girls’

    ‘Don’t expose identities of kidnapped girls’

    •Firms launch Indian law books

    A former Lagos State House  of Assembly member, Mr  Babatunde Ogala, has urged the Federal Government not to reveal the identities of the abducted school girls in Borno State.

    He said doing so would contravene the Child Rights Law, which forbids exposing identities of children who are victims of crimes.

    Ogala spoke in Lagos during the launch of the Eastern Book Company, India, in Nigeria. The company, said to be India’s leading law publisher, partnered with a Nigerian publisher, The Book Company Limited, to distribute its products and services.

    Highlighting one of the books, Law Relating to Women and Children, Ogala said the girls’ abductors are known, as opposed to when a child gets lost.

    Ogala urged EBC “to do an aggressive marketing” of its “good titles”, some of which are: A debate over rights; Administrative Law; Business Law; Code of Civil Procedure (Volumes 1-6), Company Law; Competition Law; Constitutional Law; How to frame a charge under Penal Code and Criminal Acts; Law of Arbitration and Conciliation, Law of Insurance; Contract Law; Jurisprudence and Legal theory; Criminal Law and Procedure, among others.

    EBC’s Managing Director Mr Vijay Malik said Nigeria and India have a lot in common and could learn from each other.

    “The foundation of both our legal systems is the common law of England, and therefore the case law of both systems has precedent value in the other country.

    “EBC also has as its objectives the development of legal thought and jurisprudence in Nigeria, through the publication of books authored by local writers.

    “To this end, we welcome all those who would like to author books on Nigerians laws, to work with us and make this possible.

    “EBC also looks forward to empowering legal professionals and contribute to the continued development and strengthening of the rule of law in Nigeria,” Malik said.

    The Book Company’s Managing Director, Mr Dayo Alabi, said with the reputation of both companies, “provision of legal materials, information and services is definitely set to experience a positively drastic revolution within the shortest period.”

    Justice Oyindamola Ogala of the Lagos State High Court said she hoped the ‘marriage’ between EBC and The Book Company would be long-lasting, adding: “I’m sure their books will be of immense value to us here.”

  • Manager refuses agency’s out-of-court settlement offer

    A manager with the Oil &   Gas Free Zone Authority  (OGFZA), Omosule David Funmilayo, has rejected the company’s offer of payment of his salaries and allowances from April 2011 (when he was suspended) till January this year as a condition for an out-of-court settlement of their dispute.

    Omosule argued that the company’s resolve to pay him his outstanding salaries and allowances, without being prompted, was an admission that he was wrongly suspended. He also refused the company’s demand that he voluntarily retires, describing the condition as absurd.

    Omosule was the company’s Abuja branch manager until his suspension because he allegedly refused to carry out the management’s directive. He denied the allegation and sued the company before the Federal High Court, Abuja.

    He claimed to have been unlawfully suspended without pay, shortly after he discovered a fraud in the company’s Abuja office and insisted that the management must move against those involved.

    At the last hearing on March 27 this year, Justice Gabriel Kolawole advised the parties to explore an out-of-court settlement option and adjourned to June 16, for report of settlement.

    It is in line with the judge’s advice that the company purportedly made its offer contained in an April 29, 2014 letter signed by its Head of Administration, C. O.  Maduekwe and addressed to Omosule through his solicitors, Leslie Vera & Associates.

    OGFZA admitted in the letter that Omosule “was suspended from office from April 20, 2011 till date.” It accused Omosule of not exploring “internal mechanisms of settling disputes before proceeding to the court.”

    It stated that “in view of the above, the board and management hereby make the following offers as full and final settlement:

    • That you be paid your salaries and allowances from the April 2011 to January 2014 respectively.

    • That you should voluntarily tender your letter of resignation and withdraw the matter you instituted against the Authority before the Federal High Court, Abuja.

    • Indicate the acceptance of the offer within one week from receipt of the offer.”

    Upon receiving the letter, Omosule, through his solicitors, said though he was not averse to amicable resolution of the dispute, the company was not being sincere in its offer.

    He noted that the company, in its letter, vaguely stated that he was suspended from office on 20th April, 2011 till date, thereby undermining the severity of his unlawful suspension by the company’s board since 2011.

    Omosule denied the company’s claim that he did not explore internal measures for dispute resolution before heading for the court. He stated that his efforts to make the company’s management and board understand his position were rebuffed, a development that prompted his petitions to the Independent Corrupt Practices and other related offence Commission (ICPC) and the Attorney general of the Federation (AGF) before institution the court action.

    “Our client is however disposed to settlement of this matter out of court, in the circumstance of which our client makes the following proposal:

    • Payment of his salary arrears and entitlements from the date of suspension (20th April, 2011) till date.

    • Our client maintains that there is no reason for calling for his resignation from his employment. Our client wishes to serve out the duration of his employment as guaranteed under the laws of the Federal Republic of Nigeria.

    • Further to the above, our client demands that he be reinstated to Grade Level 17 by virtue of the Administrative Manual guiding promotions in the Authority. Recall that as at 2011 when he was unlawfully and unjustifiably suspended by the authority he was due to be elevated to GL 17 having been over 17 years post NYSC.

    • Our client hereby demands the sum of N10 million as damages for the untold hardship, trauma, embarrassment and ridicule occasioned by the unlawful suspension from his gainful employment by the Authority.

    • Our client intends to withdraw this suit from Court if the above proposals are met by the Authority,” Omosule’s solicitors said.

  • 2015 Elections: Competency or sympathy

    2015 Elections: Competency or sympathy

    President Goodluck Jonathan deserved our sympathy to climb to the Presidency in 2010, after the death of President Umaru Yar’Adua. That was understandable, considering the bad-testing cookies from the staple of the late President’s kitchen cabinet, shortly before his death. Again, in 2011, the tale that Jonathan was a shoeless boy from a minority national, in Nigeria, sold like a hot pancake. That again was understandable, as he represented a David, staking against the Goliaths. But as 2015 approaches, I canvass that competency instead of sympathy should be our common guide, in our country’s best interest.

    Indeed if it were possible, the position of the president and the vice should be advertised on the international wire service, as Nigeria desperately needs a competent leader more than ever before. Were it not down to a constitutional requirement, that position ought to be given to any person considered most competent, regardless of his or her nationality. But that will be an anathema, so we have to make do with Nigerians, and luckily there are a handful of competent players. This step is key, to give our best shot, to the intractable crises facing our country, in security, infrastructure, education, and energy among others, after the 2015 presidential election.

    Nigerians going to the 2015 elections must ask themselves, who among the gladiators has the best competence to solve our numerous security challenges. While no doubt, the Boko Haram insurgency, mainly in the north-east is the most arduous task, it is certainly only a part of the problem. There is kidnapping, armed robbery and the cattle herdsmen killing and maiming all across the other zones in the country. While I agree that political and economic mismanagement by the ruling elite constitute a major cause of these problems, it is not correct to seek to pin it, to the northern political opponents of President Jonathan. That argument is a lame blackmail, by the beneficiaries of the Jonathan presidency, sold to the ignorant.

    The Boko Haram insurgency is a greater malaise, than fallout of the political disagreement, between the northern political elites and the Jonathan presidency. As many have correctly argued, the armed insurgency is an attempt by very dangerous international forces, spanning across the Arab countries, the North Africa and now sub-Saharan regions seeking swaths of political empire across these regions. That explains the sophisticated weaponry and financial resources available to these incendiary elements. While many countries across these regions, including now the Central African countries, are really in trouble arising from this insurgency, our own country’s challenge is compounded by decades of incompetent political leadership.

    So, to really attempt to solve our challenge in this respect, we earnestly need very competent hands at the highest level. And the honest question should be, whether Jonathan’s presidency has shown such competency or even the potentials in the past four years? The same competency needed in solving the Boko Haram insurgency is also required to solve the other security menaces like kidnapping, armed robbery and now the strident Fulani cattle rustlers and armed attackers. While I concede that President Jonathan is not the major cause of these security challenges, it is his primary responsibility to solve them. And if he lacks the capacity to deal with the challenges, then we need a change.

    With respect to infrastructure, it is also fair to ask whether the Jonathan presidency and indeed his party, the PDP, which has ruled Nigeria for 15 years, have been fair to our country. Starting from President Obasanjo’s years, to Yar’Adua’s interregnum, and the four years of President Jonathan, have Nigerians been given a fair result from the resources expanded over the years on our physical infrastructure. We must not hurriedly forget the billions of naira spent under the party’s political leadership since 1999, to provide the roads that are still death traps to Nigerians. Also, we can not fail to take into account the billions of dollars spent to resuscitate our electricity, without any measure of success. Recently, I watched in utter humiliation, the celebrated contraption running at about 20 kilometers per hour, on our antiquated rail lines in a 21st century; when other third-world nations were travelling on more modern rail lines at above 200 kilometers per hour.

    While the Jonathan presidency is touting the privatization of the electricity generation and distribution companies, as one of his major achievements; we must do a simple arithmetic to determine what our nation was able to realized from the sale of our electricity infrastructure to mainly PDP party members, in comparison to the humongous sums that President Obasanjo’s regime expended on the same infrastructure that his protégé, President Jonathan, gleefully sold few years down the line. If we have suffered the deprivation of electricity, despite the huge sums expended over the years, and now we have sold the same infrastructure at a loss under President Jonathan, would it be fair to expect Nigerians to give fresh four years tenure to the same political cabals.

    While we may not begrudge President Jonathan, his tact in rebasing our GDP, to place us first in Africa, we must keep our eyes on the main issue. Which is; what has changed in the quality of our lives, since PDP took over political power in 1999? If our lives have become worse, under the PDP leadership, would the celebration of a rebased GDP save our souls from the perdition, arising from a mismanaged economy? If under President Jonathan, corruption and ineptitude has become a permanent feature of political leadership, must we continue on the same road to Armageddon? I encourage those with the requisite competence to run, regardless of religion or tribe. For me, Jonathan must not win again, on mere sympathy.

  • NBA presidency: Agbakoba clarifies position on zoning

    NBA presidency: Agbakoba clarifies position on zoning

    Midwest is yet to be formally approved as part of the West in the zoning arrangement of Nigerian Bar Association (NBA) presidency, former NBA President Dr Olisa Agbakoba (SAN) has said.

    In a May 9 letter to NBA President Okey Wali (SAN), Agbakoba said his first letter was misrepresented, with some lawyers claiming that he is aware that the Midwest is part of the West.

    According to him, while it is true that discussions on how to incorporate the Midwest into the West had reached advanced stage, no final decision was taken.

    The letter reads: “I agree that the Midwest is entitled to present a candidate for President. But I also feel bound to preserve our zoning arrangements. My credentials will show that I have always supported our zoning arrangements.

    “In 2008, when the presidency was zoned to the West, I supported the candidate of the West. In 2010 when it was zoned to the North, I supported the candidate of the North. In 2012 when it was zoned to the East I supported the candidate of the East. I have given this support without prejudice to my preferred candidates which indeed I had.

    “You recall that in 2006, when I ran for President and was endorsed by the Eastern Bar, the Western Bar failed to endorse me. The Western Bar even failed to dissuade a candidate from their zone from running. Now that it is turn of the Western Bar, it would have been easy not to support them. But my commitment to our zoning arrangements has not changed.

    “The real issue for me is how we can resolve the Midwest issue so they are adequately accommodated in the NBA zoning arrangements.”

    A former NBA Legal Adviser and an Aba Branch leader, Mr Victor Nwaugo, has faulted a former NBA President Onueze C.J Okocha (SAN) on his position on the zoning.

    Okocha, in his reaction to Agbakoba’s letter to Wali, said the Midwest is part of the West in the zoning arrangement, a position shared by Midwest Bar Forum’s chairman Chief Ferdinand Orbih (SAN), who stated that “both parties have already agreed that they belong to the West.”

    Nwaugo said: “First, Okocha stated clearly that Midwest Bar Forum is part of Western Bar Forum but my question to him is: When was this marriage foisted or consummated? Going by his own statement, he claimed that during Joseph Daudu’s presidency, it was agreed that Midwest was part of the West; he did not tell us at what meeting the agreement was reached.”

    The lawyer said the Midwest Bar Forum, in a communiqué issued on February 11, 2012, signed by R.O Isenalumhe (Acting Chairman) and Edward Aibangbe (Secretary), stated that the NBA National Executive Committee (NEC) had set up an elders’ committee to look into Midwest’s agitation to be part of the zoning.

    “Has the so acclaimed elders committee submitted its report, and to whom? Has NEC deliberated on their report? Please, may we be referred to the NEC meeting in question as I can find none having kept all the NEC meetings from 2010 till date.

    “If the Midwest Bar Forum is part of the West, what did they go to do as a group on July 11, 2012 at Chief Bandele Aiku’s residence?

    “Are Okocha and Orbih telling us that the Midwest Bar did not go to Aiku’s residence as stated by Chief Wole Olanipekun (SAN) with a request to be considered as part of the Western Bar Forum? The Midwest Bar cannot foist their wish on existing and established fora like Eastern Bar Forum, Arewa Lawyers Forum and Western Bar Forum.

    “Chief Orbih in his misunderstanding of what transpired in 2012 presidential election with regard to the Eastern Bar Forum wrongfully believed that Chief Emeka Ngige (SAN) contested the election  because the presidency was zoned to East to which he belongs. Let me properly educate Chief Orbih that Ngige ran as an independent candidate against the wish, desire, advice and decision of Eastern Bar Forum.

    “In 2006, Funke Adekoya (SAN) was advised not to run against the zoning formula, but she defied the advice. In 2008 Western Bar Forum and Eastern Bar Forum advised Dele Adesina (SAN) not to run against Oluwarotimi Akeredolu (SAN) and he listened. We owe him a return.

    “If Midwest Bar feel that 2020 as promised them by their brothers in the Western Bar forum is eternity, let them field that their candidate. A recalcitrant fly is often interred with the corpse,” Nwaugo concluded.

    A member of the Middlebelt Bar Forum, Chief John Ochoga said he has no sympathies for the West “because they are now caught in the web of their own intrigues.”

    “They refused to release the Midwest long ago; they refused to give them independence long ago. If they had released the Midwest, if the inclusion principle is being implemented, we would have told the Midwest to forget it, but for now, we still remain in the old arrangement and Midwest is part of the West.

    “I remember what happened at Warri NEC when the inclusion issue was being discussed. Adekoya resisted it. She said that it would breed mediocrity at the Bar. How can mediocrity be enthroned at the Bar?

    “The Yorubas shot themselves in the foot and they will keep suffering for it. In NBA 2010 election, only one or two Yorubas were elected and in 2012, none of them was elected at all. That is the price for their inconsistency.

    “What happened at Maiduguri NEC is still fresh in my memory. Agbakoba set up a committee to set out the modalities for inclusion at the Bar. The Southwest, which never liked inclusion, frustrated the whole thing.”

    On the way out, Ochoga said: “I sympathise with Adesina because he would have defeated Akeredolu hands down if he had contested the election in 2008. I expect the entire Yoruba race to rally round him now, but true to their type, I learnt that they are not supporting him now.

    “Their total support for him would have made the race easier for him and this present situation wouldn’t have risen at all.

    “My view is that Midwest is part of the West in the current tripod zoning. If the West had embraced the Inclusion Report of the six zones today, Midwest would be resting in the Southsouth. However, of all the candidates, may be the best win.”

  • ICPC Act of 2000 valid, subsisting, says court

    ICPC Act of 2000 valid, subsisting, says court

    The Corrupt Practices and Other  Related Offences (CPC) Act, No.5 of 2000 is still valid and should be included in laws of the federation, Chief Judge of Anambra State, Justice Peter Umeadi has held.

    He said the CPC Act No. 6 of 2003 (purported to have been amended) is null and void and should be expunged from the laws.

    Justice Umeadi held: “Pursuant to the meaning at Section 318 of the Constitution of Nigeria 1999 (as amended), I hereby make a recommendation that the Hon. Attorney-General and Minister of Justice should (i) include the CPC Act No. 5 of 2000 in the compiled Laws of the Federation of Nigeria forthwith and (ii) to expunge the CPC Act No. 6 of 2003 from the compiled Laws of the Federation of Nigeria, forthwith.”

    The judge was ruling on a preliminary objection by three defendants in a criminal charge brought against them by the Independent Corrupt Practices and Other Related Offences Commission (ICPC).

    The Federal Republic of Nigeria, through ICPC, filed the corruption charges against Dr Okechukwu Odunze, Asuzu Ogochukwu, Alhaji Y.A. Sule, Dr Ifeanyi Okoye, Benjamin Passa, Hon. Moses Gbende, Chief R.O. Derex-Tanor and A.N Nkwonta at the Anambra State High Court, Awka.

    But Odunze, Sule and Passa filed a notice of preliminary objection praying for an order striking out or quashing the charges contained in charge number A/1c/2013 for being incurably defective.

    Their ground is that the charges are founded on a repealed law; that CPC Act 2000 has been repealed by Section 55 of the CPC Act No. 6 of the 2003; and that the alleged offences were committed after the abrogation of the CPC Act No. 5 of 2000.

    Justice Umeadi had invited two amici curiae (friends of the court) – Dr A.I Layonu (SAN) and ICPC’s Director Legal Mrs C.I Onuogu – to further address the court on the issue.

    Layonu and Onuogu submitted that the Supreme Court had held that the ICPC Act 2000 is still valid.

    He said the defence of the amici curiae “laid much store” on the cases of Attorney-General of the Federation vs Chief Anyim Pius Anyim and three others; Senator Adolphus Wabara and two other vs FRN, and Yahaya vs Federal Republic of Nigeria (2007) (23, WRN, 127 @146).

    The judge said a consideration of the cases and decisions on them shows that CPC Act No. 6 of 2003 “suffered a stillbirth and was never delivered.”

    Justice Umeadi said there is no evidence in writing that the President has given his assent to CPC Act No. 6 of 2003, adding that it should not have been included as part of the country’s laws, having been held to be invalid.

    The Chief Judge held that the mere fact that CPC Act No. 6 of 2003 is contained in the laws of the federation does not stop it from being null and void.

    “The horrifying situation is that the Laws of the Federation of Nigeria 2010 omitted the CPC Act No. 5 of 2000 which the Supreme Court of Nigeria, the highest court in the land, had adjudged the extant law on the matter.

    “It had been said earlier that the National Assembly had the power to repeal that CPC Act No. 5 of 2000 if she had properly enacted CPC Act No. 6 of 2003 with the presence of Section 55 therein.

    “It has been shown that the National Assembly did not get it right. The decision of Egbo Egbo J (as he then was) on the matter preceded the compilation of the Laws of the Federation of Nigeria 2004.

    “Certainly there is no excuse for the same CPC Act No. 6 of 2003 to be included and the CPC Act No. 5 of 2000 which is valid excluded in the compiled Laws of the Federation by the Hon. Attorney-General of the Federation or the Law Revision Commission.

    “I agree with Dr Layonu that the mere fact of such omission does not amount to a repeal of the omitted enactment. It is a cardinal principle of the law that statutes are not repealed by inference or implication but by direct provision of law,” the Chief Judge said.

    Justice Umeadi held the CPC Act 2000 “continues to exist”. “The President of Nigeria wrote to the National Assembly saying why he could not assent nor withhold assent on the bill leading to CPC Act No. 6 of 2003. There should be no talk then that the President later assented to the Bill,” he said.

    He added: “It is an irony, therefore, that CPC Act No. 5 of 2000 is not contained in the Laws of Federation of Nigeria 2004 while the CPC No. 6 of 2003 is. That anomaly should be corrected immediately.”

    The judge said the greatest pointer that the validity of the CPC Act No. 5 of 2000 is that the Federal Government continues to deal with the commission’s membership as contained in that Act, which is radically different from what is stipulated in the 2003 Act.

    The 2003 Act, he said, stipulates that the ICPC chairman should be a serving Justice of the Court of Appeal, which the current chairman, functioning under the 2000 Act, is not.

     

     

     

  • Group tasks police on criminal law implementation

    A human rights group, the Access to Justice (AJ), has urged the police to  effectively implement the Administration of Criminal Justice Law of Lagos State (ACJL) 2011.

    The law imposes responsibilities on the police, but AJ, in a report released on November 27, last year, said only 29 per cent of officers in Lagos are familiar with the law or have received any training on its provisions.

    To get more policemen acquainted with the law, the group held a seminar at the Area ‘B’ Police Command Headquarters, Apapa, Lagos, with the theme: ‘’Effective Implementation of Lagos State Administration of Criminal Justice Law 2011.’’

    AJ’s Project Officer Mrs Chinelo Chinweze highlighted the duties of the police under the law, including notification of cause of arrest; information of rights to remain silent and right to counsel; notification of right to free legal counsel; no arrest in lieu of suspects; taking inventory of a suspect’s belongings; making video recordings of confessional statements; police reporting obligations; and women as sureties for bail, among others.

    On notification of cause of arrest, the only exception is where the person is apprehended in the actual course of the commission of the crime or where pursued immediately after the commission of the crime or while escaping from lawful custody.

    The police should also inform the person being arrested of the legal right to apply for free legal representation from the Office of the Public Defender (OPD), Legal Aid Council or any such agency.

    Chinweze said the police violate the law if any officer arrests a suspect’s relative or any person in place of the suspect, adding that where there is no video recording facility,  the law requires that such confessional statement should be in writing in the presence of a lawyer chosen by the arrested person.

    The police is also make a report of all persons who are arrested with or without warrants under state offences to the office of the Attorney-General within one week, while Section 20 provides that officers in charge of police stations are obligated to report cases of all persons arrested without warrant to the nearest Magistrate.

    Area ‘B’ Police Commander ACP Ndubueze Michael Anene praised AJ for organising the seminar, saying police officers would work to implement the law effectively.

    He added that the seminar gave room for officers to express their challenges, as solutions were proffered on how to comply with the law.

    Senior Special Assistant to the governor (Legal Matters) Mr. Akingbolahan Adeniran urged the police to apply the law especially in confessions, as defence lawyers always raise issues as to whether they are voluntary, which further cause trial delays.

    He said since anyone who has been arrested get nervous during interrogation, police officers should interview them calmly and “allow them relax.”

  • ‘Include ADR in university, Law School curricula’  

    ‘Include ADR in university, Law School curricula’  

    The Nigerian Institute of Advanced Legal Studies (NIALS) has held a three-day training on Alternative Dispute Resolution. The keynote speaker, Justice Opeyemi Oke of the Lagos State High Court said ADR should be taught in the universities and the Law School to help de-emphasis litigation. JOHN AUSTIN UNACHUKWU reports. 

    Alternative Disputes Resolution (ADR) mechanisms should be taught in the universities and the Nigerian Law School to build capacity in disputes resolution.

    This was the thrust of discussions at a three-day training on ADR mechanisms organised by the Nigerian Institute of Advanced Legal Studies ( NIALS) at  its Akoka, Lagos Campus.

    The Head Judge, Fast-track Division, High Court of Lagos State, Justice Opeyemi Oke, said legal education in the past had not helped ADR.

    This, she said, is because students were taught the inevitability of learning the law through legal principles and obita dicta from cases.

    She gave a keynote address entitled: “Legal education in conflict resolution: How can the legal profession best train lawyers, judges and policy makers to enhance conflict resolution process?”

    According to her, for long, legal education in the common law, with its adversarial tradition, has stressed the law as litigation, and produced practitioners who zealously pursue litigation.

    ADR in the conflict resolution processes, she said, is down-played as legal education foists on students the inevitability of learning the law through legal principles.

    Core legal courses such as Torts, Contract, Land Law, Law of Evidence, Labour Law , Criminal Law, Medical Law, Energy, Environmental, and the list continues, are taught with great emphasis on case studies.

    The procedural aspects of the law such as criminal and civil, she said, are not spared in an approach that esteemed litigation as the mono means of advocacy.

    “Law students participate in intense national and regional moot court competitions, which are designed to educate and shape their mindset as ‘zealous advocates’  as they grow to assume responsibilities as lawyers, judges and policy makers.

    “The above traditional approach towards legal education has, however, come under serious scrutiny, and is giving way to a new model referred to as ‘conflict resolution advocacy’ which focuses on the broader conflict resolution processes including ADR.

    “Enhancing the conflict resolution processes, therefore, deserves a legal education that imparts the necessary skills that can prepare practitioners including Lawyers, Judges and Policy Makers for their tasks,” Justice Oke said.

    Justice Oke said ADR can be made more popular by teaching it in the law schools and and making it part of continuing  legal education; ensuring that the right persons teach ADR, improving content of law courses and training events to cover ADR and de-mystifying the language of law.

    “I will like to take the view that it is obvious that with the encouragement of the conflict resolution process, a paradigm shift has occurred in the dispensation of justice.

    “Consequently, the practitioners in modern times must fall in line with this reality or face a total fall out with the system.

    “In order to ensure professionals, who are on the cutting edge of this new dispensation, legal education should be shaped and designed in a way that will produce practitioners who are well equipped with skills in the conflict resolution processes.

    “When this is done, the conflict resolution processes will have a positive effect on our justice delivery system in terms of service that will be provided by conflict resolution practitioners not only to their clients, and users of ADR, but most importantly to the society at large.”

    NIALS Director-General Prof. Epiphany Azinge (SAN) said in spite of  efforts by all stakeholders, the wheel  of the administration of justice is still grinding slowly.

    According to him, experts have come to the conclusion that ADR,  which comprises arbitration, mediation, conciliation, negotiation is the faster and cheaper way to go.

    “Ultimately, the consequences of going through ADR is well known to all and sundry in the sense that it is easier for the parties to be reconciled to one another as opposed to litigation or adjudication as the case may be.

    “So the emphasis on the whole gamut of the judicial system is to ensure that we sensitise people sufficiently, both lawyers and the stakeholders including the potential litigants  to come to the realisation that  unless you want protracted adjudicatory process, your best method of arriving at a compromise and also achieving results and settling your disputes amicably is through the ADR    “We have used this medium, as we have always done in the past, to ensure that we teach the participants, sensitise them and educate them on the processes, the nuances  and the nitty-gritty of ADR.

    “We introduced them to the fundamentals as well as prepared them to be able to navigate through the whole process; to make them good arbitrators, make them good negotiators and mediators, teach them all the elementaries that are required,” Azinge said.

    The NIALS boss said ADR would also help decongest the court docket.

    “It will also help the judiciary because instead of being over burdened with very long cause lists, some necessary and some not  necessary, you will find out that this becomes another avenue of pushing out some of those cases that are not being deserving of  going before the courtroom.

    “So, the institute is making it a policy and we hope that this process, which  we  commenced over a period of time now will continue and that more importantly, participants would carry the news,  embrace the principles and make sure that they are implemented to the letter wherever they come from.”

  • ‘Judges’ working conditions must be improved’

    ‘Judges’ working conditions must be improved’

    Mr. Seni Adio is the Chairman, Nigerian Bar Association (NBA) Section on Business Law (SBL) Committee on Consumer Protection and Products Liability. He is also chairman of SBL’s 8th Annual Conference Planning Committee. In this interview with Legal Editor JOHN AUSTIN UNACHUKWU, he speaks on challenges facing commercial lawyers, the judiciary’s working conditions, and alternative dispute resolution.

    Your father is a retired Chief Judge of Oyo State.   Your mother, Justice Busola Ogunlesi-Adio, of blessed memory, was on the High Court in Ogun State, and your late uncle, Justice Y. O. Adio was in the Supreme Court. Why have you remained at the Bar?

    Well, it would be rather presumptuous to think it’s a natural or inevitable progression to go to the Bench.  Moreover, being a judge anywhere, particularly in Nigeria, is what I describe as a self-less sacrifice because the conditions in which a lot of our justices and judges work are very tough.  I am not stating anything new here.  Certainly, a lot of progress have been made over the years, but often times, too late for many. Here, the justices and judges conduct their research themselves and also write their judgments and rulings themselves, often times doing so late into the night and early mornings of the following day.  Many times, if there is no power they have to resort to battery powered lamps and, sometimes, even more rudimentary illuminating devices.  Just imagine that?  Now, transpose what I have justdescribed with the other experience I have had where judges sometimes have two or three young lawyers working with them as law clerks. And I must tell you for young lawyers it’s a very huge deal to clerk for a judge – any judge.  However, by the time you have clerked for a Justice of the Court of Appeal, you must be exceptional, and a Supreme Court Justice would mean you practically walk on water.  In sum, the judges abroad have very able young lawyers to lighten their work load.  Not here.

    What do you consider to be the greatest challenges facing commercial law practice in the country?

    Well, I am sure that if you pose that same question to 10 lawyers, you are going to get 10 different answers depending on the area of commercial law which they practice. Even the law firms that do a lot of commercial law litigations are facing different type of challenges but I think that one of the issues that one faces  some times is  in terms of sustaining foreign direct investment and making potential investors too comfortable about the way of risking  their capital in this environment. They need some kind of predictability in terms of outcome when disputes arise, that they would get a fair stakes in getting those disputes resolved promptly.  That is one area and a degree of progress has been done in that area by  through various bodies including Chartered Institute of Arbitrators, UK and the Lagos Court of International Arbitration  ( LCIA) and even the Lagos High Court now has a Multi Door system, so there is an orientation now towards trying to get disputes resolved justly and quickly and also resolved promptly.

    Can you give us a little insight into your educational background?

    Well, yes. I attended Queens College, Taunton, Somerset for my A-Levels and from there I proceeded to the University of Buckingham in the United Kingdom (UK) where I got my law degree LL.B (Hons). Upon obtaining my law degree I came back to Nigeria and attended the Nigerian Law School from 1987 to 1988.  Thereafter, I served in the National Youth Corps program.  I served at the Ministry of Justice, Jos, Plateau State.  I stayed with my uncle, Justice Yekini Olayiwola Adio, JSC, of blessed memory, who was at the Court of Appeal, Jos Division.  Upon completing my NYSC program I proceeded to the United States to obtain a Master of Laws degree.  I obtained my Master of Laws in Taxation from Boston University School of Law, Boston, Massachusetts, USA.  I had intended to spend only one year, but ended up being there for many more years.

    How were you able to adjust having spent an extended period practicing abroad?

    You have already made a point which I should underscore.  I was in private practice abroad.  By no means am I saying that it’s been a walk in the park – it has not.  However, quite fortuitously, the not-so-new anymore practice of “front-loading” is a procedure that I was quite used to so that made things relatively easier when I returned to practice here.  Moreover, even while I was away, I was in regular contact with colleagues, attended various law events and to the extent possible, just tried to stay keyed into the legal trends and developments here.

    You practiced abroad for many years. Were you involved in any Nigerian cases in those years?

    Not directly.  I did provide some consulting advice though.  I suppose that’s not surprising given that I was based in Boston where the mainstay in terms commercial law practice comprised of Biotechnology, Healthcare, Hi-Tech, Renewable Energy, Tax and Financial Services (with a bias towards Europe, South and Latin America).  I if I had been in Houston, I’m sure I would have been involved in many Nigeria bound transactions and vice versa.

    What should we expect from the forthcoming SBL Conference?

    Suffice to say, it should not be missed.  We are having a cocktail on the evening of May 25, for our colleagues and the resource experts.  The Conference will kick-off in earnest on the morning of May 26  with key note speeches and welcome remarks in the morning and the First Plenary in the afternoon.  Some of the dignitaries scheduled for the first day include the Speaker of the House of Representatives,  Aminu Waziri  Tambuwal, the Chief Justice of Nigeria,  Justice Aloma Mukhtar, Lord Mark Malloch Brown,Former Deputy Secretary General, United Nations, and Vice Chairman of the Soros Investment Funds, NBA President,  Okey Wali (SAN).  The Conference will be declared open by the  Governor Babatunde  Fashola, (SAN) of Lagos State.

    Why did you choose the conference topic?

    The theme for this year’s Conference is quite topical. The theme is: “Exemplary governance Enhancing economic development in Nigeria” This theme was derived, in part, taking into consideration the fact that the Conference is being held in the penultimate year to Nigeria’s general elections.  Therefore, it presents a unique opportunity for stakeholders to address the imperatives of exemplary governance as a platform for enhancing economic development in the country. Plainly speaking, we have very eminent experts as resource persons on the panels of the various Committees that have organized break-out sessions.  The Conference is not intended to be a forum for back-slapping or just net-working. Sure, people are encouraged to net-work.  However, the Committees will be providing very substantive seminars and interactive discussions and also provide written materials that attendees will jealously guard and take away with them.  The SBL has approximately 21 Committees. These include Banking and Finance, Capital Market, Intellectual Property, Insurance, Sports and Entertainment, Tourism and Hospitality, Mergers, Acquisitions and Restructurings and, of course, my committee – Consumer Protection and Products Liability.

    How do you determine the sub-themes?

    The Council provides guidance certainly but for the most part, the decisions are left to the Committee chairpersons. Usually, the chairpersons take a cue from the over-arching theme and derive sub-themes that dove-tail with the main theme.  As far as I know, there has never been a case where the Council threw out a topic from any given Committee. Well, it’s gone very well so far.  I can tell you though that it’s a lot of work, very time consuming.  I have to say I can’t play any naivety about what I was stepping into when I accepted the honour because it is a tremendous honour to have been asked but I knew I was stepping into very large shoes because my more recent predecessors include Mr. Soji Awogbade and Dr. Gbolahan Elias, (SAN). So it’s a lot of work, there’s no question about it but it’s been a lot of fun too,  particularly because the Council has been very supportive, every single member of the Council has been extremely supportive and I have to even say that it’s been a delight working with Mr.  Gbenga Oyebode, Asue Ighodalo and Olu Akpata. And going back to one of the questions you asked me about my sojourn in the States, Asue Ighodalo for example, is some one I  met at different speaking events. I remember very vividly on one occasion both of us were on a panel at the Harvard Club in New York. So it’s been very refreshing working with the Council. Though I can’t name every member of the Council I wish to publicly thank each and every one of them for their support.  We also have a very amiable, resourceful, endearing and enduring, Mr. Endurance Uhumuavbi, who is in charge of the SBL Secretariat. He is extremely resourceful, a lot of high energy, always thinking, has a very “can-do” attitude, he doesn’t take no for an answer, so having someone like that to work with at the Secretariat has also been tremendously helpful. Clearly over a two-day period, we’re going to have all the committees present various programmes in different sessions. And they are all topical, based on the very theme that has been selected.

    So we have committees such as banking and finance, capital market, intellectual property, insurance, sports and entertainment, tourism, I have to mention my committee-Consumer Protection and products liability. There are different committees and each committee has a very robust presentation populated with experienced practitioners and experts in their different fields. The Consumer protection and Products Liabilitycommittee, which is my committee may not be presenting programme this year, except at the Annual General Conference of the NBA. So this year’s conference promises to be the best that we’ve had so far. We have lots of eminent legal practitioners, business leaders and government dignitaries who would be attending the conference with indigenous practitioners as well as those coming from various parts of the globe.

    How do you think the outcome of this year’s conference would affect Nigeria?

    As a developing topic from last year, we touched on security challenges because we had a lot of security issues going on at the time, and then we touched amnesty, power, economic development, how has the SBL moved up from all that were discussed? What happened after the discussions that were had last year, what has happened afterwards? Has anything been done about the resolutions and discussions, has there been any policy change that was actually influenced by the SBL Conference? Let me deal with the first questions, part of the ways that the SBL has impacted locally on Nigeria, is that at the threshold, we raise awareness about different issues. We know that people pay attention to what the Nigerian Bar Association says in general;  we also know that as a result of the efforts of this particular committee and as I mentioned earlier, it has caused a lot of human capacity development, the quest for excellence, expertise and part of what it has done for example; the issue of privatisation, part of what has come out of making the whole privatisation exercise, the strides that have been achieved is that we have a lot of people hopefully who are willing to carry the ball and move the ball forward.

    How do you think the programmes of the SBL have impacted government actions and policies?

    Now on the scale of impacting on the government, the government too has on occasions tapped into the resources provided by the SBL and I can say that my committee, Consumer Protection and Products Liability has contributed in this regard. Moreover, I know that at the federal level, for example, there’s a legislation of the National Assembly that is going through several readings to bring the current Consumer Protection Act to make it up to today’s standards in terms of addressing various issues that are not addressed in the current statutes, particular prospect to “encouraging” service providers to be good cooperate citizens and in the rare circumstances that they are not, for there to be adequate remedies for people who are victims of those wrong doings.

  • ‘Members’ welfare our focal point’

    ‘Members’ welfare our focal point’

    The Nigerian Bar Association (NBA), Ikeja Branch has elected new officers to run its affairs for the next two years. The new Chairman, Mr. Yinka Farounbi, speaks with ADEBISI ONANUGA on his vision.

    What is your agenda for the  next two years?                                                                                                                                                                    

    Before the election, we met with members during the manifesto night and we presented our programmes to them. I am assuring them that we would to stick to every project listed in our manifesto. We are not going to deviate from any of them, but do more. That is the key word. We would do more.

    For instance, we want to make the practice of law more conducive for members. There are certain areas we want to look at – the service of process; the filing of process; the welfare of members, particularly, young lawyers; our activities at the national body; resuscitating abandoned high courts and the issue of the N1,000 default fee.

    All these we are going to do and more to ensure that our members have a conducive atmosphere to ply their trade. Where necessary, we would meet with the relevant agencies, legal authorities and ensure we pursue this agenda. But, in doing this, the welfare of our members would be paramount in all strata of the economy. We would collate the names of our members within Ikeja catchment area and ensure that once you browse our website, you find the list of members so as to lay to rest the controversy on membership once and for all.

    How do you intend to handle your opponents and others that lost elections?                                                                  

    In my message after the election, I appreciated everyone who came out to vote and contested the elections. I saluted the courage of all the contestants and told them that NBA is greater than any of us and that now that the election is over, we should unite.  That there is no winner takes all or losers take nothing;  we are all winners in the process. I have only one agenda in mind, to lift up the NBA particularly Ikeja Branch. So that is our agenda. My advice is that we should all come together, close our ranks and move the bar forward. A lot of those who contested election have sent goodwill messages. Some have even come personally to congratulate us and pledge their loyalty to the bar, not to me or any of those who won election. Some have even given useful advice to us. We are going to look at all these holistically and where necessary, adopt some of them.

    What would happen to the legacies of your predecessors?

    l salute my predecessor in office.  I want to say that he made some giant strides while holding office as chairman of the branch. But I want to say that, that is what is expected of any chairman of a branch like Ikeja . There is no way you are expected to leave the bar the way you met it. You are expected to leave the bar higher than you met it and I am happy that he left the bar higher than he met it. Take for instance the bar centre, it was during the tenure of a particular chairman that we got that land, another renovated the bungalow we met on the land,  which first served as our secretariat;  another laid the foundation of the present day bar centre; another set the blocks of the building and so on and so forth. Like I promised during our manifesto night, by the special grace of God, by the time we shall be completing our tenure, we would present a wholly completed bar centre. That is just a part of what we are going to do. In other areas, we intend to excel beyond the present government. What is expected of us is to leave the bar better than we met it. That is the driving force.

    At the end of your tenure, what would you like to be remembered for?                                                                                          

    By the special grace of God, by the time I would be leaving office, I want to be remembered as someone who came and fundamentally lifted the bar beyond all imaginations, beyond the level he met it. That would be my desire.

    Towho do you dedicate your victory?                                                                                                                 

    First of all, I am dedicating it to God Almighty, who made it possible. I am also dedicating it to the wonderful members of the  Ikeja Branch, who defied the rain to come, from far and near,  and cast their votes for me. I feel humbled and I am grateful to them for that, particularly, for defying all the odds to ensure my victory. The weather was not too friendly at a stage, but they  weathered the storm and ensured that they cast their votes. I thank them all.  I  am also grateful to my campaign team, who traversed the area covered by Ikeja branch,  campaigning and mobilising members to come and vote to ensure that I emerged the winner.  I also thank the people in the Ministry of Justice, the OPD and the various parastatals and agencies.