The Nation Newspaper

Category: Law

  • Residents sue ASCON over filling station

    Residents sue ASCON over filling station

    •‘It’s abuse of court process’

    Residents of Lekki Phase One  have gone to a Lagos High Court,  to stop ASCON Oil Company Limited from building a petrol station in the area.

    They are praying for an interlocutory injunction against the firm.

    In a motion brought before Justice Kazeem Alogba, the claimants, Rasheed Williams, Kayode Aderinokun, Alhaji Useni, Malachy Ezeoke, Mrs. Ogunmokun and Olujide Kuti, are praying the court to mandate ASCON to stop work on Block 36, Plot 10, Lekki Peninsula Scheme I in Eti-Osa Local Government Area of Lagos State, pending the determination of the substantive suit.

    Lagos State Physical Planning Permit Authority and the Commissioner, Lagos State Ministry of Physical Planning and Urban Development are other defendants.

    In their statement of claim, the claimants through their lawyer, Osaro Eghobamien (SAN)said the petrol station will pose a great environmental danger to the residents.

    They argued that, despite protests by residents, ASCON has fast-tracked work on the property based on a development permit purportedly obtained from the Ministry of Physical Planning.

    “The first defendant has intensified the construction of the petrol station both day and night with a view towards completing same and commencing operation of the station in a bid to frustrate any opposition to the petrol station.

    “It is the claimants’ contention that the construction and operation of the petrol station on the particular land have serious environmental impacts which cannot be adequately mitigated.

    “The environmental consequences of the situation of the petrol station on the land in issue range from environmental degradation, pollution, fire outbreaks and explosions, health hazards, huge traffic congestion and increased insecurity,“ they argued.

    According to them, an environmental impact assessment ought to have been carried out on the land before the development permit was granted by the authorities for the construction of the petrol station, with a comprehensive report produced to the same effect.

    In its notice of preliminary objection to the claimants’ suit, ASCON said the suit was premature, adding that the court lacks the jurisdiction to hear the matter, because it is an administrative issue.

    ASCON averred that the case was an abuse of court process since another suit it instituted against the claimants was pending before the same court, urging the court to strike out the matter.

    “There is a strong likelihood of judicial embarrassment if the action in this suit is allowed to co-exist with the action in Suit No: M/83/13.

    “In the premises, the instant action constitutes a gross abuse of judicial process which this Honourable Court lacks jurisdiction to entertain,” the firm stated.

  • Council elections and constitutional amendment

    Council elections and constitutional amendment

    The local government system in Nigeria had a jerk under the Muritala/Obasanjo’s regime, from 1976 to 1979. Before the military intervention in 1966 the nature and type of administration was the choice of the regions. It was however under the Muritala/Obasanjo’s military government that a unified system of local council administration was created. General Obasanjo who as General Muritala’s deputy took over as head of state when he was violently killed in a putsch in 1976, finally entrenched this uniformity in the 1979 constitution.

    For many a unified council administration was a surreptitious attempt, albeit a half measure, to resurrect the 1966 unification decree for which General Aguiyi-Ironsi paid the supreme price. Since decreeing a common council system into existence, its administration has suffered intemperate measures whether under the military or civilian regimes up till the present. While the 1999 constitution, which came into existence twenty years after that of 1979, provides for a similar council administration across the country, it clearly manifested the prevailing confusion whether local councils have been elevated to a third-tier of government, or remains an administrative system under the states of the federation.

    The ongoing attempt to further amend the 1999 constitution is providing another opportunity to tinker with the council administration. Notably most political interests operating at the federal level seem to prefer institutionalizing council administration as a third-tier of government. Of course I am referring to the presidency and the federal legislators. Conversely the governors and the state legislators seem to prefer the local councils to be under their control. Indeed up till now, many state governors in defiance of the constitution refuse to conduct the council elections, because of the potential that adverse parties may win enough ground to torpedo the state administration’s game plan. Where elections are allowed to go on, the political parties of the state governors usually ensure they win all the available places.

    These incongruous political results have resulted now in the clamour for a further alienation of the councils from the governors/states’ control. One of the recommended measures is for the abolition of state electoral commissions, so that the national electoral commission takes over the conduct of the council elections. According to press reports, one of the recommendations of the constitutional review conferences conducted by the House of Representatives across the federal constituencies was the abolition of the state electoral commissions. No doubt, the results of the patently manipulated council elections across the states are untenable for the sustenance of democracy; but I strongly doubt whether the answer lies with handing over the electoral opportunities to the national electoral commission.

    I use the word electoral opportunities advisedly, because the condemnable manipulation that happens at the local council elections is not different from the manipulation that takes place at the national level. What will merely happen if the amendment becomes law is that the election manipulation opportunities will be handed over to the federal institutions and their beneficiaries. While I abhor totally state governors’ monarchical tendencies in clear breach of the constitution in dealing with local councils, I guess it will be unbearable for many and discomforting for a total stranger to be gifted the opportunity and the dubious privilege to determine local council elections.

    Should the national electoral commission take over the ace in determining the candidates of local council elections, I have no doubt that it will precipitate a crisis that will further weaken our tenuous democracy. This is because our electoral experience has shown that primary elections to determine the party’s candidates are in several cases more keen that the general elections where as some pundits have argued, the electorate have been abolished. So in such cases the choice of who will become the local government chairman or councilor could on the basis of the authority of the electoral body to determine who is the authentic candidate of a political party be made in Abuja, by strangers and partisan for pecuniary interests.

    As I have humbly argued on his page with regards to local government administration, it is untenable, politically, socially and economically to run our local governments as a third-tier of government based on the current principles of governance in Nigeria. This is primarily because other exigencies of a federal system of government are not allowed by the constitution. So we have quasi-federal states, and if the plans materialize, we will in addition have quasi-local councils tied inexorably and inextricably on the apron strings of a centralized political economy; and made worse by a command structure manned by dubious and criminal political elites bent on gang raping the country to death.

    With a strong context for power between the federal and state governments sometimes over heating the system as they prefer to call it; I am worried that several war fronts will be created across the nooks and crannies of the country as the local councils will provide the federal authorities satellite war fronts as they contend with the states. The chances are that the Presidents and his apparatchik may for instance seek to manipulate the national electoral commission to have their candidates put on the ballot and declared winners of the elections; in search of influence in opposition areas and even to teach a recalcitrant Governor from the same party some form of political lessons.

    The way out in my humble view is to federalize the political and economic structure of the country; rather than over-centralizing it. That way the council will be encouraged and strengthened to grow its own economy and political influence. In the meantime, state governors can definitely do better than the wholesale shooing of election results in favour of their parties in the name of local government elections.

     

    This article, previously published on this page, is repeated.

  • Monitors for South Africa’s elections

    Monitors for South Africa’s elections

    Former President of the Commonwealth  Lawyers’ Association (CLA), Mrs Boma  Ozobia has been named head of the Southern African Development Community (SADC) Lawyers Association Election Observer Mission.

    The group will monitor the 2014 South African General elections tomorrow.

    April 10,  letter to Ozobia signed by the SADC Lawyers ‘ Association President, Mrs. Kondwa Sakala-Chibiya,  reads: “Your appointment as head of mission followed careful considerationby the SADCLA executive committee, after which it was concluded that you would be a suitable candidate to head the association’s election observer mission to South Africa considering your profile,  expertise and knowledge as a legal  practitioner and human rights advocate at the African and international levels

    “We are therefore confident that you will successfully guide the association in  activities leading up to, during and after the elections. These activities include but not limited to: observer sensitisation and briefings, meeting with high level government political party and electoral authorities, media briefings,  deployment planning, election report writing and generally ensuring that the election observer mission is adequately and professionally managed.”

    The SADC LA is an independent voluntary association made up of law Societies and Bar Associations of the SADC region. SADC LA has a  mandate to uphold human rights, promote democracy and the independence of the Judiciary in SADC.

  • NBA presidency: Row over zoning

    NBA presidency: Row over zoning

    A letter written by former Nigeria Bar Association (NBA) President  Dr. Olisa Agbakoba (SAN) to the incubent, Mr. Okey Wali (SAN), urging the association to retain its zoning of offices is generating ripples. It is the turn of the West to fill the presidential seat, he argues. Agbakoba advises the Midwest to bide its time for the job, an advice which the zone chafes at. Can the Midwest be part of the West in the race for president or is it supposed to wait for its turn? Legal Editor John Austin Unachukwu and JOSEPH JIBUEZE examine the issues.

    The controversy over the Nigerian Bar Association (NBA) zoning for the office of its presidency is yet to abate.

    Last week, a former NBA President Olisa Agbakoba urged the association not to depart from zoning arrangement which makes it the Southwest’s turn to produce the next president. He said there could be dire consequences if the Yoruba do not produce the next NBA President as previous one had been elected based on zoning.

    In a letter to NBA President Okey Wali (SAN), Agbakoba said: “I recognise and empathise with the exclusion of the Midwest but it is in our overall interest to maintain the zoning arrangement. I suggest we do not depart from the zoning arrangement but immediately take steps to address the grievances of the Midwest,” Agbakoba wrote.

    A former NBA President Chief Wole Olanipekun (SAN), while speaking at the Alao Aka-Bashorun annual lecture organised by the Ikeja Branch last week, backed Agbakoba, urging the association not to break the zoning cycle.

    He said the cycle began in 2000 with Onueze C.J Okocha (SAN) (from the East), followed by him (from the West) and Bayo Ojo (from the North). The second cycle had Agbakoba (from the East), Rotimi Akeredolu (SAN) (West) and Joseph Daudu (SAN) (North).

    The third cycle, which is ongoing, has Okey Wali (SAN), who hails from the East according to the zoning arrangement. It is the West’s turn again.

    Olanipekun said during the Daudu presidency, agitations were rife for the recognition of additional zones in the NBA, including but not limited to the Midwest zone. He said at the instance of the Midwest Bar leaders, a meeting was held at the Ibadan residence of Chief Dele Aiku (SAN) on July 11, 2012.

    “The Mid-West team was led by Chief Albert Akpomudje, SAN and their simple demand qua request was that for the purpose of the NBA zoning arrangement, the Midwest would want to be part of Southwest.

    “The Southwest leaders welcomed them wholeheartedly, and informed them that they were not averse to their request. They, however, stated that there must be a continuation of the third zoning trip which had already begun (since at that point in time, it was conceded to the Southeast from where Wali and Emeka Ngige (SAN) were the aspirants/candidates); but that when, by the grace of God, the zoning train moves to the Southwest in 2020, the Southwest as it is now would concede it to the Midwest and that nobody from the Southwest shall contest the slot with any candidate or candidates from the Midwest,” Olanipekun said.

    He said as a result of the emergence of the Midwest aspirant for the July election, the stakes have been raised, while the zoning arrangement is being threatened.

    “It thus behoves those of us who are leaders of the NBA, including past Presidents, particularly those who have assumed office through the unwritten zoning agreement to plead for caution and restraint at this point in time.

    “Agbakoba, our 23rd President has done well by coming out in defence of the zoning arrangement, warning that nobody should truncate it at this point in time when its ship is already in the ‘High Seas’, having taken off from the East in 2012, expected to make a stop at the South-West in 2014 and, finally berth in the North in 2016.

    “In any game, particularly, in the game of football, the goalpost is never shifted, extended or contrasted in the middle of the game. In life itself, our words should be honoured and respected. Honouring gentleman’s agreement does not need any rocket science aid; rather, all it needs is our resolve to honour our conscience,” Olanipekun said.

    But the Midwest insists that it is part of the Southwest and therefore can field a candidate. Chairman of the Midwest Bar Forum (MBF), Chief Ferdinand Orbih (SAN), said it was agreed in 2012 that both the MBF and the Egbe Amofin belong to the West.

    Reacting to Agbakoba’s letter to Wali, MBF said: “We would not want to believe that the letter under reference was indeed written by Dr. Olisa Agbakoba (SAN). Our disbelief stems from the fact that at a meeting held in March, 2012 to address the legitimate demands and aspiration of the Midwest Bar Forum for the NBA presidential slot, Dr. Olisa Agbakoba submitted a written position wherein he clearly stated that for the purpose of the zoning of the NBA presidency, both the Midwest Bar Forum and Egbe Amofin belong to the West.

    “The meeting was presided over by Mr. J.B. Daudu (SAN) and was attended by prominent Bar leaders including Chief T.J.Okpoko (SAN), and Chief Bandele Aiku (SAN), who represented the Midwest Bar Forum and the Egbe Amofin respectively.

    “In fact, it is unthinkable that a man of his status would turn around to take a contrary position because of his support for a particular candidate and /or the exigencies of the present election.

    “It is important to note that there is no Southwest in the informal zoning configuration of the NBA as far as the office of the presidency is concerned. For the avoidance of doubt, the three recognised zones are North, East and West (i.e Egbe Amofin and Midwest)

    “In the unlikely event that the letter under reference was indeed written by Dr. Olisa Agbakoba (SAN), there is need to remind him that a decision has already be taken by the leaders and elders of the Bar at the aforesaid meeting in Abuja, in March, 2012.

    “At the meeting, the NBA 2014 presidency was zoned to the West, thus leaving the door open for any member of the Midwest Bar Forum or Egbe Amofin to contest the election. The South-West-(Egbe Amofin) and the Midwest Bar Forum have since moved beyond Agbakoba’s partisan position. Both parties have already agreed that they belong to the West.

    “However, the unresolved issue is as to which of the two fora in the West will field a candidate in 2014. Efforts to resolve the question of precedence on the basis of fairness and propriety have not yielded dividend. On that note, the parties concerned have agreed to meet at Phillipi, i.e at the polls for the NBA to choose between the contesting Western (Midwest and Egbe Amofin) candidates. Dr. Agbakoba therefore has every right to vote for his candidate on election day but he has no right to peddle untruth and cry louder than the bereaved.

    “Finally, a leaf must be borrowed from the East where in the last election, candidates from different parts of the zone contested the election. That in our view represents the true spirit of democracy,” Orbih said.

    Aspirants for the presidency are Mrs Funke Adekoya (SAN), Chief Adeniyi Akintola (SAN), Deacon Dele Adesina (SAN), Mr Augustine  Alegeh (SAN) and Osas Erhabor.

    Agbakoba told The Nation why he wrote the letter. “I acted on principle as a concerned Bar leader. I have no special interest to protect. After all, the western Bar leaders did not support me during my campaigns for NBA Presidency. I, Chief Anyemene and other Bar leaders from the East urged the Western Bar leaders including Chief Olanipeku,   to prevail on Funke Adekoya to step down for me because it was the turn of the East according to the zoning principle, they refused and said that zoning was dead, but the East and the North who believed that zoning was alive voted me and I became President.

    “But that is not the issue now; the issue is that we want to avert problems in the NBA. How did we get into the zoning principle in the first place? It was to avert the type of trouble we had in 1991 which led to the crash of the NBA for years.”

    When reminded that Midwest is taken to be part of the West, Agbakoba said: “They are not,  if they are, why did they  adopt Augustine Alegeh? Why are they not attending Egbe Amofin meetings where other candidates from the West are declaring their interests to contest the election? Why do they have structures at the Mid West Bar including a constitution?

    “They are not part of the West and that is why, during my tenure as NBA President, they wrote a letter to me asking to be recognised as being part of the NBA zoning arrangement. I set up an inclusion committee to address their problems and that of other non included groups, unfortunately the recommendations of that committee has not been approved up till today.

    “They had the opportunity to address this issue during Oluwa Rotimi  Akeredolu (SAN)’s regime but they did not,  even during the regime of J.B Daudu (SAN) but they did not, so its too late in the day for them to come now and say that they are contesting election under the zoning arrangement.”

    Okocha told The Nation that during the Daudu presidency, it was agreed that Midwest is part of the West. “The truth is that the president should come from the West but let the West put its house in order but if they fail, we should vote for who the electorate wishes for,” he said.

    Speaking on a letter purportedly written to the regional fora to vote for only Yoruba candidates, Okocha said: “That is too parochial, too undemocratic. Egbe Amofin should not exclude other candidates who are in the West. Midwest is part of the West for the purpose of our zoning arrangement.”

    A Bar leader, Chief John Ochoga, speaking on the solution, said: “I sympathise with Dele Adesina (SAN) 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.”

    A former NBA President Lanke Odogiyan said: “I support Agbakoba’s view especially as it affects the Southwest. My understanding is that the issue was raised during the Presidency of J. B. Daudu (SAN) and the West said ‘Ok, we will accommodate our brothers from the Midwest on the condition that when we take two slots, they will take one but this one is for the Southwest, Midwest will take in 2020.’

    “So, for any candidate to come out now from the Midwest will be very unfair. Remember, the zoning arrangement was put in place because of our experience in 1992, so to avoid future disruptions, we should maintain it.”

    Former chairman of NBA Kaduna branch Mr. Anozie Obi recalled that Daudu proposed a six zonal arrangement at the bar leaders summit, which was resisted by the West who declared that the Midwest was part of the West.

    “The Presidency which has now returned to the West is zoned to the entire West which includes Midwest. All parts of the West, including the ‘Mid’ of the West are entitled to contest,” he said.

  • Fed Govt ‘voids’ firm’s patent on ballot boxes

    Fed Govt ‘voids’ firm’s patent on ballot boxes

    Despite a court verdict, upholding the exclusive right of Bedding Holding Limited (BHL) to design ballot boxes, the Federal Government has issued a gazzette, voiding the  patent. Can the government  so act when case is appeal?  ERIC IKHILAE asks.

    Can a party validly destroy the res during the pendency of a case? This question will drive arguments next week as parties return to court in the various cases involving the Independent National Electoral Commission (INEC), a firm – Bedding Holdings Limited (BHL) and others.

    INEC and BHL have been locked in disputes for some time now, over the legitimacy of BHL’s claim to sole ownership of the patents and designs rights in relation to collapsible transparent ballot boxes and voters’ dada capture process, two key components of INEC’s election activities.

    Although INEC had consistently denied the existence of such patents and designs rights, as claimed by BHL – a claim it supported with documents and certifications, the Federal High Court in Abuja had in two judgments, upheld BHL’s claim.

    In a judgment given on January 28 this year, by Justice Ibrahim Auta of the Federal High Court, Abuja, the judge upheld BHL’s claim to having a valid patent over the process of applying the Direct Data Capture (DDC) machine to register voters. He also awarded about N17.3billion damages against INEC and others for utilising the process without the prior consent of the patentee as required under the Patent and Designs Act 2004 and ordered INEC not to use the patented product without the consent of the patentee.

    Justice Auta’s judgment came almost two years after another judge of the court, Justice Adamu Bello, gave a judgment on June 5, 2012 upholding BHL’s claim to being the sole holder of a valid patent over the transparent ballot boxes being used for elections. He voided similar patents subsequently issued to three other companies; ordered INEC to always seek the consent of the patentee before utilizing the products, failing which the exercise for which the product was used would be deemed null and void.

    INEC made failed attempts to stay the execution of both judgments. In one instance, Justice Bello, while ruling on May 28, 2013 refused an application by INEC for stay of execution of his earlier judgment. The judge equally frowned at INEC and Jega’s decision to deploy the same ballot boxes for subsequent elections, including the governorship elections held in Edo and Ondo states, without the consent of the plaintiff and in disregard of the court’s subsisting order contained in the June 5, 2012 judgment.

    Justice Bello held that it was funny that INEC and Jega would approach his court for an indulgence having willingly disregarded and flouted its order.

    “They (INEC and Jega) conducted the elections on July 14 and October 20, 2012 using the same ballot boxes as averred by the plaintiff/respondent (BHL) in its counter affidavit, which has not been denied by the 6th and 7th defendants (INEC and Jega) in the two further and better affidavits, in total disregard to the injunctive order, the execution of which they now seek to stay by their application.

    “Since the elections have been conducted, the need for staying the execution of the injunctive order granted by the court has abated, at least for now. And even if the need for the order for stay of execution has not abated, the defendants by proceeding to conduct the two elections, using the same ballot boxes, the use of which was restrained by the court’s judgment, have soiled their hands and cannot therefore seek the indulgence of the court.

    “He, who comes to equity, must come with clean hands. The 6th and 7th defendants (INEC and Jega) have not come with clean hands before the court and cannot therefore seek for equitable relief of stay of execution of the order in the judgment.

    “Consequently, I refuse to grant the application, as granting it will be tantamount to the court encouraging further breach of its own judgment order, which subsists until set aside by the Court of Appeal,” the judge held.

    INEC and Jega have again, filed a similar application for stay before the Court of Appea, Abuja. In the application filed on March 24 by a team of lawyers including five Senior Advocates of Nigeria, led by Adegboyega Awomolo (SAN), the applicants failed to indicate that a similar application was refused by Justice Bello and why.

    However, while parties had thought that the battle has shifted to the appellate court, with INEC’s two appeals pending, the Federal Government, acting in a manner suggestive of an attempt to pull the rug off BHL’s feet, issued a gazette on March 19 purporting to void all the patents earlier issued to BHL, including those on which the court had given judgments.

    BHL’s lawyer, John Okoriko observed that themove is an attempt by the Fed Govt to stop the patents owner – BHL – from further benefiting from his inventions, by invoking the public interest rule to void duly registered patents including those covering transparent ballot boxes and Direct Data Capture (DDC) process being used by the Independent National Electoral Commission (INEC).

    The registered patents and designs affected by the government’s fiat include: “RP No. 10511 (for collapsible steel frame structures); RP No. 12994 (for transparent ballot boxes); RP No. 16642 (for electronic collapsible ballot boxes); NG/P/2010/202 (for Proof of Address System Schemes – PASS); RD No. 13841 (for electronic collapsible ballot boxes); RD No. 5946 (for transparent ballot boxes) and RD No. 3962 (for collapsible steel structures.”

    The Minister said he was exercising his powers under Paragraph 15 of Part II of the First Schedule to the Patents and Designs Act Cap P2 Laws of the Federation of Nigeria 2004 in issuing the gazette, which INEC attached as exhibit in a suit by BHL to stop INEC’s alleged continued use of its patented product for voters’ registration in Ekiti and Osun states

    Okoriko argued that the gazette did not only contradict INEC’s earlier argument that such patents do not exist, it confirms BHL’s claim to being the valid holder of the affected patents.

    The firm argued, in an affidavit,  that INEC ought to have awaited the outcome of its pending appeals, if it actually believed it had valid appeals, rather than resort to self-help, as done with the gazette, with which INEC seeks to justify its continued uses of the patented products without the consent of the patentee (BHL).

    BHL further argued that it was wrong for the Industry Minister to void the patents without informing or seeking the consent of the patentee as stipulated in Paragraph 18 of Part II of the First Schedule to the Patents and Designs Act.

    BHL also queried constitutionality of the provision of Paragraph 15 of Part II of the First Schedule to the Patents and Designs Act which the Minister purportedly relied on in issuing the gazette. It argued that the provision that allows the government to unilaterally take away the intellectual property of a citizen violates the constitutionally guaranteed rights of citizens to own property.

    It argued that the government cannot invoke public interest to void its duly issued patents where private interest is involved. BHL noted that the gazette seeks to allow INEC award contacts to private companies to produce and supply its inventions and thereby make profit, without it (BHL) benefiting from it.

    By the new case marked: FHC/ABJ/CS/172/2014 BHL is praying the court to among others, restrain INEC from proceeding with it voters’ registration/validation exercises in Ekiti and Osun states as a way of preserving the subsisting January 28 judgment. Proceedings resume in the case on May 13 before Justice Auta.

    The Nation learnt form documents tendered in court by parties that INEC and BHL have had a cordial business relationship until Professor Maurice Iwu became the Chairman of the electoral body. The relationship dates back to 1987 when the electoral umpire was known as National Electoral Commission (NEC).

    NEC, by a letter dated October 6, 1987 awarded BHL a contract to supply it with metal ballot boxes, which the company invented and produced then. The product was later modified into the current transparent ballot box.

    In 2003, under the leadership of the late Dr. Abel Guobadia, INEC, after exhaustive investigation which extended to the Ministry of Industry, acknowledged BHL’s patent right over the Transparent Ballot Boxes (TBB). And in accordance with the provision of the Patent and Designs Act, INEC got the company to issue it with the requisite License Agreement to cover the manufacture and procurement of 500,000 TBB.

    Also in line with the agreement, INEC in the contract award letters issued to other companies engaged to manufacture and supply TBB, by virtue of the License of Right, included a clause that read thus: “Please be informed that the product is covered by Patent and the Commission has secured the approval of the patent holder to grant you license to manufacture/import the product.”

    BHL averred that the relationship collapsed under Professor Iwu in 2007 whose INEC refused to honour its patents and allegedly infringed on them by awarding contracts in to companies, who presented patents certificates that were later voided in the June 5, 2012 judgment by Justice Bello.

    Prof Iwu  was said to have maintained his position not to honour BHL’s patents even when INEC’s in-house lawyers including Oluwole Osaze-Uzzi ( in a memo dated December 15, 2006) suggested that INEC act in accordance with the law.

    “In 2011, under the leadership of highly respected Professor Attahiru Mohammed Jega, the infringement committed by Professor Iwu was sustained as the same company was again awarded contract for TBB in the billions of naira and again presented to FEC for ratification under the same erroneous impression and scenario. This illegality is still being sustained till date despite a valid and subsisting court judgment,” it said.

    In its bid to assert its right and ensure that the leadership of INEC play by the rules, BHL has filed various cases including those challenging the use of the TBB for the last governorship elections in Edo, Ondo and Anambra states, and the use of the box for the last convention of the ruling People’s Democratic Party (PDP).

    The company also seeks the voiding of the various elections for which its patented ballot boxes were used by INEC without its prior consent as ordered in Justice Bello’s judgment.

    On March 31, a group – Partners for Electoral Reform (PER) – via its letters to President Goodluck Jonathan, Senate President, David Mark and other major stakeholders in the nation’s democratic project, drew the nation’s attention to the threat posed by INEC’s alleged willful disobedience of court orders and reluctance to obey the law.

    Senator Mark has since referred the letter written for the group by a Lagos-based lawyer, Malachy Ugwummadu to the Senate Committee on INEC for investigation. The group warned that if not urgently checked, INEC’s continued defiance to court orders and judgments could derail the democratic process.

    It stated that INEC’s refusal to comply with the court order to always obtain the patentee’s consent before utiziling its patented products “remains a potential threat to the proposed electoral exercise both in Osun and Ekiti states and the impending general elections of 2015.

    “The present disregard of orders of competent courts of law in relation to the subject matter of the present suit (FHC/ABJ/CS/816/2010) have far reaching consequences in the sense that it provides a ready recipe for unscrupulous elements in the polity to foment chaos.

    “Needless to say that disgruntled contestants will definitely seize such veritable opportunities to undermine the outcome of any process that will be based on the disputed content of this judgment. It is the law, and that much we are bound to know, that an order or judgment of court, however justified or not, remains judgment of court and binding until it is set aside by a competent court.

    What INEC seems not to realize is that,  the possible direct implications of these cases could be far reaching, and may provide a perfect recipe, a veritable and apparent danger, should unscrupulous elements, disgruntled contestants and  opposition politicians  take advantage existing judgments  to undermine or challenge the validity of  past and ongoing process(s) or outcome of any exercise, not minding the billions of investment, and thereby  throwing spanners in the country’s  political stability.

    It is however left to be seen how the Fed Govt and its INEC wriggle out of this unhurt.

  • Judges, lawyers identify arbitration challenges

    Judges, lawyers identify arbitration challenges

    The Nigerian Bar Association (NBA), Ikeja Branch last week held its annual law week for 2014.  The one-week event attracted many lawyers and judges sector, writes ADEBISI ONANUGA.

    The Nigerian Bar Association (NBA), Ikeja Branch last week  held its annual law week for 2014. The one-week event, which also incorporated the mandatory Continuous Legal Education, was themed: “Surmounting Professional Challenges through Continuous Legal Education”.

    It attracted former Head of State, Gen. Yakubu Gowon,  House of Representatives Speaker Aminu Tambuwal and  Deputy Senate President, Senator Ike Ekweremadu at the annual Bar Dinner.

    Also in attendance were  Imo State Governor Rochas Okorocha,  Akwa Ibom State Governor Godwill Akpabio, Osun State Governor Rauf Aregbesola, Oyo State  Governor Abiola Ajimobi and Lagos State Governor Mr. Babatunde Fashola (SAN), who was the chief host.

    The mandatory Continuous Legal Education attracted a large number of Justices of the Court of Appeal, Federal and State High Court . The Justices of the Court of Appeal included  Tijani Abubakar, Sidi Bage and those of the High Court including Justices Opeyemi Oke, Oluwatoyin Ipaye, Adenike Coker,  Sedoten Ogunsanya,  K. A. Jose, S.B. Candide-Johnson, Ayisat Opesanwo, Funmilayo Atilade, Latifat Oluyemi, Lateefat  Folami, Ronke Harrison, Adeniyi-Adeogo Adebajo and Kazeem Alogba among others.

    During the Continuous Legal Education programme, the Bar and the Bench disagreed on those that constituted obstacles to successful implementation of the Alternative Dispute Resolution (ADR) in Lagos State. While Justice Toyin Ipaye put the blame at the door step of lawyers, the Bar represented by the chairman of the branch, Monday Ubani absolved lawyers of any blame on the issue. Ubani said the plaintiffs/Claimants always want their lawyers to fight for them in the court. He said most times, they viewed lawyers who advised clients to opt for  ADR as a weakling and incompetent.

    Justice Ipaye  said experience has shown  that most of the resistance to the use of ADR mechanisms comes from the lawyers and not necessarily their clients.

    Justice Ipaye a facilitator at the programme  in a paper titled: “Exploring the mediation window at the Court of Appeal, Magistrates Court, High Court, Family Court, Criminal Court: Prospects,Challenges, Drawbacks,Efficacy” .

    The judge, who was represented by another judge, Justice Latifat Oluyemi, noted that lawyers are resistant to the change because they have been well  trained in litigation, the adversarial method of resolving disputes; they are thus unfamiliar with the other models.

    “But change has come and they have to jump on board the train or they will be left behind at the station”, she stressed, adding that ADR is now a global reality.

    Justice Ipaye said the appropriate thing for judges and magistrates to do is to seek to know the reason for the non submission to mediation or other ADR method by lawyers and claimants/litigants and address the concerns.

    In his paper, The Rudiments of Brief Writing, Mr. Olatunde Adejuyigbe counseled lawyers against filing a brief of argument in solidarity with appellant.

    Said Adejuyigbe: “The role of the respondent in an appeal is to defend the decision of the court from which the appeal emanates and canvass arguments that the decision of the lower court be affirmed”.

    Citing relevant authorities and a decided case between Ohiaeri and Yusuf, Ogebe J.C.A., Adejuyigbe argued that where a respondent files a brief of argument urging court to allow the prayers of the appellant, the court will strike out such a brief by the respondent or discountenance it.

    He said if the respondent finds it difficult to support or defend the decision appealed against, he needs not file a brief of argument.

    He however said that where a respondent filed a cross-appeal against the decision of a lower court, “he can canvass arguments in respect of the cross-appeal with the objective of urging the Appelate Court to set aside a specific finding of error made by the lower court.

    He said this point was made very clear and correctly by a Justice of the Supreme Court of Nigeria, Justice Bode Rhodes-Vivour, in a matter between Lafia Local government and Governor of Nasarawa State in 2012.

    Justice Adebajo who delivered paper on Criminal Evidence remarked that where the court directs that DNA samples be provided by defendants, it has been found out that the prosecution is obliged to put the result before the court and also to make it available to the defendants.  He pointed out that where the report is not made available to the defendant,  the court would presume the report in favour of the defendant.

    Adebajo described forensic evidence as a two-edged sword, which most often serves the best interest of the party calling for it.

    In a welcome address, chairman of the branch, Monday Ubani explained that the choice of the topics was informed by challenges which some lawyers are facing in the sector.

    Ubani said the topics were intended to equip lawyers with the skills and knowledge that would make them excel in the administration of justice and  abreast of developments around the world.

    During the world press conference held to kick-start the law week, Ubani took a cursory look at the situation in the country and said that the entrenchment of a true federal system of government is the only panacea to reducing tension and the various problems that have been confronting the country.

    Ubani also stressed the need for resource control by the owner state, saying that it is also key to reducing tension in the country.

    “We feel strongly that the best system that will reduce tension and create competitiveness and healthy rivalry for the purpose of development is a proper federal system. If this is not agreeable to all citizens, then the country is advised to go their separate ways”, he stated.

    He insisted that only a true federal system of government would be condusive and reduce tension for such a multi-ethnic and diverse religious country like Nigeria.

    “Other issues like state police, control of natural resources by the owner state, payment of certain percentage to the Federal Government, creation of local government and the strengthening of institutions like the judiciary, electoral commission among others should all be agreed upon”, he said.

    The NBA chairman pointed out that the country would be taking a retrogressive step if it should subject the outcome of the ongoing national conference to the National Assembly for consideration on the planned amendment to be made to the 1999 Constitution.

    Rather, he suggested that the outcome should be subjected to a referendum of the people.

    He, however, warned that all efforts being made at the conference would be a futility if it failed to discuss such issues like definition of citizenship and aspiration of one common goal and objective.

    He asked members of the House of Representatives to investigate the allegation of the missing $20 million oil money and the N10 billion allegedly squandered  on  the hiring of private jets by the Minister of Petroleum Resources, Mrs. Deziani Allison-Madueke .

    The association urged members of the House of Representatives to handle the matter with the same courage with which the Committee on Aviation handled that of the former Minister of Aviation, Pricess Stella Oduah saying: “They must let Nigerians know the truth of their finding”.

    It observed that the ship of Nigeria is heading towards a wrong direction and urged the leadership to look into its compass and change direction.

    Ubani lamented that the governance of Nigeria is not reaching to the nooks and crannies of the country noting  “few parasites are presently sitting on top of Nigerian wealth, sharing it the way they want to their family members, cronies and friends to the exclusion of the majority”

    As part of the activites marking the Law Week, the Ikeja branch of the NBA, (a.k.a. The Tiger Branch), engaged the Lagos Island Branch (a,k.a. Premier Branch) in novelty football match which ended 1-1 draw.

  • Cleric petitions CJN, IGP over property demolition

    The Director-General, Police  Assistance Committee of  Tradesmen/Women, Prophet Martins Oni has petitioned the Chief Justice of Nigeria Aloma Mukhtar and the Inspector-General of Police Mohammed Abubakar over the alleged demolition of his property.

    He is urging them to investigate the authenticity of an Enrolment Judgment of the Lagos State High Court on the basis of which his house was brought down.

    Oni, the General-Overseer of the Chosen of the Lord Ministry, said property worth N1.2billion was allegedly stolen by hoodlums during the demolition.

    According to him, he was in his office in August 2009 at Plot 15 Apapa-Oshodi Expressway, Ijesha when some people who claimed to be bailiffs from the Lagos State High Court showed him the judgment.

    The Enrolment of Judgment, dated October 30, 2008, was in a suit numbered ID/2801/92 between Mr Farayola and Alhaji G. Owoade. It declared the claimant as entitled to a Certificate of Occupancy of a land at Obalodu Street, Ijeshatedo, measuring approximately 430,849 square meters.

    The judgment also restrained the defendant from trespassing the land or interfering with the claimant’s enjoyment of it; and awarded N500,000 as general damages for the acts of trespass, as well as cost of N250,000 awarded against the defendant.

    Oni said he was not named in the case and was never served any hearing notice. Besides, he said the land belongs to him, having acquired it 17 years ago from Owoade (the defendant in the suit).

    According to him, he still has the land’s documents, including the Survey Plan, House Plan, receipt of purchase, building plan, the Ijeshatedo Family Land Receipt, and other documents from the state government.

    He said he constructed a four storey building on the land, housing four mini-warehouses, offices, 14 shops, and his church, all of which were brought down.

    “Nobody informed me that the land and my building were in contention of any sort. The crowd who were armed overpowered me and my workers and commenced the week-long demolition,” Oni said.

    He said he sent his lawyers to the High Court “and the feedback is always the same, that the case file was not seen….,” adding that he is wondering whether the judgment is authentic.

    Oni said he took ill after the property was demolished and was flown abroad for treatment, and having recovered, he now wished to reclaim his property.

    “If not for God, I would have been a dead man having to watch my property destroyed. With every sense of humility, I appeal to you sir to use your good offices, and as the defender of the defenceless, to do something urgently to salvage the situation,” Oni wrote.

    He had earlier written to the Senate President David Mark, who acknowledged the petition, saying: “The President of the Senate has noted the content of your letter and advises you to exercise your fundamental rights in a competent court of law.”

    The police confirmed it has begun investigation into the petition. A letter from the Principal Staff Officer to the Inspector-General of Police, Murtala Mani (a Deputy Commissioner of Police), to the Assistant Inspector-General of Police, Zone 2, Onikan, reads in part: “The Inspector-General of Police directs you treat, please.”

    A senior police officer at Zone 2, who craved anonymity, said a letter had been written to the Chief Registrar of the Lagos High Court, seeking to authenticate the judgment and to get further details as to the circumstances in which it was delivered.

    The source said the letter was sent over seven weeks ago and that the High Court was yet to respond. “We may have to send a reminder soon, but we’re still expecting to hear from them,” the source said.

    When contacted, the Chief Registrar, Mrs Iyabo Akinkugbe, said: “If the letter is here, you can be sure it is being treated, but no comments.”

  • ‘Female children cannot be excluded from inheriting fathers’ estate’

    ‘Female children cannot be excluded from inheriting fathers’ estate’

    Lead Judgment delivered by Bode Rhodes-Vivour, JSC

    On theDecember 27, 1961, Lazarus Ogbonnaga Ukeje a native of Umahia in Imo State, died intestate. He had real property in Lagos State and for most of his life was resident in Lagos State. The 1st appellant got married to the deceased on the 13th of December 1956. There are four children of the marriage. The respondent is one of four. After Lazarus Ogbonnaga Ukeje died, the 1st and 2nd appellants’ (mother and son) obtained letters of Administration for and over the deceased’s Estate. On being aware of this development the plaintiff/respondent filed an action in court wherein she claimed to be a daughter of the deceased and by virtue of that fact had a right to partake in the sharing of her late father’s estates. In a judgment delivered on 10/1/92 the learned trial judge, Fafiade J found that the plaintiff is a daughter of  L.O. Ukeje (deceased) and proceeded to grant the reliefs she claimed. The defendants/appellants’ dissatisfied with the judgment lodged an appeal at the Court of Appeal Lagos (Division). The Court of Appeal agreed with the learned trial judge. The court dismissed the appeal for lacking, merit. This appeal is against that judgment.

    After a careful examination of the issues formulated by both sides, the court considered the following issues for the determination of the appeal: (i) Whether the respondent as plaintiff proved that she is a biological daughter of L.O. Ukeje (deceased); (ii) Was the evidence of DW8 discredited in the High Court?; (iii) Did the trial court arrive at its decision after following the proper guidelines for decision making laid down by the Supreme Court?

    Apart from her testimony on oath and that of her mother, PW2 to prove that she is the daughter of  L.O. Ukeje (deceased), the respondent tendered the following: Her birth certificate – Exhibit H; Form of undertaking, and Guarantee – Exhibit 3; Judgment in her Divorce Proceeding – Exhibit J; and Photographs – Exhibits M, M1, P.

    The court placing reliance on Section 114(1) of the Evidence Act stated that a birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in the document. Once the authorised government official appends his signature and stamp on the document and such authentication is not contested by the adverse party, the presumption of regularity will be ascribed to it.

    On the first issue, the court held that it has not been disputed that the respondent was born in Lagos on the 5th of July, 1952 and her birth was registered in Lagos in August 1952 and her parents are L.O. Ukeje (deceased) and PW2. The court held that since the appellants’ did not rebut the presumption of regularity, the finding of fact by the trial court remains unassailable. L.O. Ukeje (deceased) is the biological father of the respondent.

    Arguing the third issue, learned counsel for the appellants’ observed that the Court of Appeal was wrong in holding that the trial court followed the guideline laid down in Sanusi v. Ameyogun (1992) 4 NWLR Pt.237 P.527; (1992) LPELR-3008(SC). He observed that rather than evaluate evidence of each of the contesting parties the learned trial judge picked out the oral and documentary evidence adduced by the plaintiff/respondent and her witnesses then proceeded to declare that she found it unbelievable that the plaintiff and her witnesses would have been able to have knowledge of a number of listed facts, unless they had personal contact with the deceased. He contended that the learned trial judge did not review or evaluate the evidence of the relatives of the deceased.

    Learned counsel for the respondent observed that the learned trial judge properly evaluated the evidence before concluding that the respondent is a daughter of L.O. Ukeje (deceased). He submitted that the guidelines laid down in Sanusi v. Ameyogun (1992) 4 NWLR Pt.237 P.527; (1992) LPELR-3008(SC) were followed by the learned trial judge, contending that the Court of Appeal was right to affirm the decision of the trial court.

    The court stated that the learned trial judge followed the guidelines outlined in Sanusi v. Ameyogun (1992) 4 NWLR Pt.237 P.527; (1992) LPELR-3008(SC). On the issue of paternity, the court held that the evidence of the respondent far outweighs the evidence of the appellant and that both courts below were correct that the respondent’s father is L.O. Ukeje (deceased).

    The court further noted that the appeal is on the paternity of the respondent. Whether the respondent is a daughter of L.O. Ukeje (deceased). It is necessary to state that L.O. Ukeje (deceased) is subject to the Igbo Customary Law. The court held that agreeing with the High Court, the Court of Appeal correctly found that the Igbo native law and custom which disentitles a female from inheriting, in her late father’s estate is void as it conflicts with sections 39(1)(a) and (2) of the 1979 Constitution (as amended). This finding was affirmed by the Court of Appeal and there is no appeal on it. The court further held that no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking  in the sharing  of her deceased father’s estate is in breach of section 42 (1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. That the said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution.

    The appeal was dismissed.

    Edited by LawPavilion.  Citation: (2014) LPELR-22724(SC)

  • Achieving speedier dispensation of justice

    Achieving speedier dispensation of justice

    Author: Prof. Epiphany Azinge (SAN)
    Publishers: Nigerian Institute of Advanced Legal Studies (NIALS)
    Number of Chapters: Eight Chapters
    Book Reviewer: Izuomah Egeruo-Adindu

    Review of the book on the role of costs and adjournments in the expeditious dispensation of justice in the Nigerian courts.

    The book which aims at examining The Role of Costs and Adjournments in the Expeditious Dispensation of Justice in the Nigerian Courts is divided into 8 chapters. It is a field project initiated by the Director General of Nigerian Institute of Advanced Legal Studies, Prof. Epiphany Azinge SAN.  The project examined the epileptic nature of the Nigerian Judicial System, which is filled with unreasonable adjournments thereby taking away the trust and confidence reposed in it by litigants.

    Chapter 1 introduced the book and listed the problems and issues militating against the speedy resolution of disputes before the Nigerian courts. These include but not limited to: poor facilities, insufficient budgetary allocation, inadequate personnel, training and capacity building challenges. The essence of the research project identified as institutionalised procedural practices in Nigerian courts were also listed in this chapter. In addition, it also captured in detail the research methodology used in arriving at the answers to the numerous questions raised in the book.

    Chapter 2 dealt with surveys illustrated with charts on the mechanism of costs and adjournments as applied in FCT courts. The practitioners that participated in the Legal Practitioners Survey fulfilled the practice location, post call and civil law practice requirements. For the litigants who completed the Litigants Survey, selection was based on their involvement in civil proceedings for at least one year prior to the time of the survey. The litigants were located at the various High Courts of the Federal Capital Territory. A total number of 90 legal practitioners participated in the FCT Legal Practitioners Survey, out of which 61 practitioners, equivalent to 68 percent of the total number of respondents, had had Immediate Costs awarded in their favour while 29 participants, representing 32 percent of the total number of the Abuja participants had not.

    Chapter 3 dealt with surveys illustrated with charts on the mechanism of costs and adjournments as applied in courts in Asaba, Delta State. A total number of 43 legal practitioners who fulfilled the mandatory requirement already mentioned in chapter 2 above participated in the Asaba Legal Practitioners Survey. Out of the 43 legal practitioners that completed the survey, 18 practitioners, equivalent to 41.86 percent of the total number of respondents had had Immediate Costs awarded in their favour, while 25 participants, representing 58.14 per cent  of the total number of the Asaba participants had not.

    Chapter 4 dealt with surveys illustrated with charts on the mechanism of costs and adjournments as applied in courts in Lagos State and Nigeria. The practitioners that participated in the Legal Practitioners Survey in Lagos fulfilled the practice location, post call and civil law practice requirements. For the litigants who completed the Litigants Survey, selection was based on their involvement in civil proceedings for at least one year prior to the time of the survey. The litigants were located at the various High Courts in Lagos. A total number of 163 legal practitioners participated in the Lagos Legal Practitioners Survey, Out of which 101 practitioners, equivalent to 61.96 per cent of the total number of respondents had had Immediate Costs awarded in their favour while 62 participants, representing 38.04 per cent of the total number of the Lagos participants had not.

    Chapter 5 dealt with surveys illustrated with charts on the mechanism of costs and adjournments as applied in some courts in Maiduguri, the Borno State capital. The practitioners that participated in the Legal Practitioners Survey fulfilled the practice location, post call and civil law practice requirements. For the litigants who completed the Litigants Survey, selection was based on their involvement in civil proceedings for at least one year prior to the time of the Survey. The litigants were located at High Courts in Maiduguri. A total number of 40 legal practitioners participated in the Maiduguri Legal Practitioners Survey, of  which 21, equivalent to 52 per cent of the total number of respondents had had Immediate Costs awarded in their favour while 19 participants, representing 48per cent of the total number of the Maiduguri participants had not.

    Chapter 6 dealt with surveys illustrated with charts on the mechanism of costs and adjournments as applied in some courts in Makurdi, Benue State. The practitioners that participated in the Legal Practitioners Survey fulfilled the practice location, post call and civil law practice requirements. For the litigants who completed the Litigants Survey, selection was based on their involvement in civil proceedings for at  least one year prior to the time of the survey. The litigants were located at High Courts in Makurdi .A total number of 14 legal practitioners participated in the Makurdi Legal Practitioners survey, out of which  11 practitioners, equivalent to 78.57per cent of the total number of respondents had had immediate costs awarded in their favour while three participants, representing 21.43per cent of the total number of the Makurdi participants had not.

    Chapter 7 is an electronic survey designed to accommodate legal practitioners based in some parts of the country not covered by the paper survey. The online invitation to participate was targeted at legal practitioners who met the post call and civil law practice requirements, like the paper survey and 22 legal practitioners from various parts of the country participated. Their response was also illustrated with charts in that chapter.

    Chapter 8  which is the last chapter, contained the overall report and analysis of data obtained by the team of researchers from the Legal Practitioners and Litigants surveys in the five locations mentioned above ( FCT, Asaba, Lagos, Makurdi and Maiduguri) and the E-Survey, all illustrated with a chart. It was stated in that chapter that a total of 372 legal practitioners took part in the Legal Practitioners Survey,  and out of the 372 legal practitioners,220 had had Immediate Costs awarded in their favour in a given case, the chapter also dealt with Some of the conducts and actions cited by practitioners in all the location that gave rise to the award of costs  (Immediate Costs and Postponed Costs)and they include: failure to file court processes and adjournments/deliberate acts to prolong case.Thus ,the  project is not without lacuna as it failed to cover  the six geopolitical zones and the response from the E -Survey is inadequate.

    The research is detailed and will  not only guide the Nigerian Judiciary in quick dispensation of justice but also assist in restoring the confidence reposed in the Judiciary as the last hope of the common man. This book is, therefore, recommended for all the courts in Nigeria ranging from the Apex court (the Supreme Court) to the Magistrate court, Legal advisers in government offices and parastatals, company secretaries, public prosecutors, law teachers and researchers, legal practitioners, law students, aspiring law students and the general public.

    Izuoma Egeruoh-Adindu

  • Firm trains ministry staff on software

    Firm trains ministry staff on software

    AN Information and Communication  Technology (ICT) firm, the Law Pavillion, has trained the senior staff of the Lagos State Ministry of Justice, Alausa, on  legal research tools.

    They were taught on how to use the LawPavilion software,  to enhance efficiency and productivity.

    The training is one of the after-sales service offered by the company.

    The  new LawPavilion Case Manager, described as a revolutionary software that organises and streamlines  the complex workflow of a lawyer, was also demonstrated at the training.