Legal Aid, Oyo Journal

LEGAL AID, OYO JOURNAL OF LEGAL ISSUES A Publication of Corps Legal Aid Scheme (Community Development Service) National Youth Service Corps, Oyo State VOL. 1, ISSUE 1, 2017. © 2017 by Legal Aid, Community Development Scheme, NYSC Oyo State. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in cases of quotations embodied in critical articles and reviews. All content in this work, including the cover art and design are the intellectual property of the providers and/or authors and Legal Aid, Community Development Scheme, NYSC Oyo State, will not be held liable for any infringement found therein. LEGAL AID, OYO JOURNAL OF LEGAL ISSUES First Edition: 2017 Cover and Illustration Design by: Just Kasili +234(0)8168618274 Typesetting by: Mary-Anne Ogunleye PRESIDENT´S ADDRESS All gratitude must be directed to the Most High God for his guidance and providence. Oyo state has been a loving host to many of us coming from all over Nigeria and may God continue to bless His Excellency, Governor Ajimobi and the Pace Setter State! The Legal Aid Scheme CDS presented a wonderful opportunity for us to truly impact the Oyo state community and indigenes. We proudly present this LEGAL AID JOURNAL OF LEGAL ISSUES, a publication of Corps Legal Aid Scheme (Community Development Service) National Youth Service Corps, Oyo State. This journal is a compilation of pertinent contemporary issues at the crux of our society today. These issues tackled in this journal are sensitive and it is vital that we pay attention to them. The journal lends a precious perspective of young scholars in our contribution to these themes. I thank God for blessing me with a supportive executive committee who were never short of ideas, passion and dedication to carry out our plans. To the wonderfully resilient Ms. Mary-Anne Ogunleye and the committed Journal Committee who together piloted this vision to reality. Despite the busy schedule at our places of primary assignment and shy resources, thanks to God, the Oyo Corps Legal Aid Scheme achieved many feats, including an exceptional ADR Workshop – which the Ambitio group supported – in forging collaborations with the Centre for Practical Legal Training (CePLT), Chartered Institute of Arbitration, the ADR Society etc., put together to raise youth and young lawyers alike to be promoters of peace. Legal Aid's several prison visits to take on cases, pro bono, was an avenue where we directly intervened to help poor inmates. I specially thank Mrs Adesola Thanni, Oyo State Prisons Litigation Officer; and the head of the Agodi Ibadan Prison for their support. The Legal Aid CDS conducted Secondary School Human Right Campaigns in Oyo State to educate and raise awareness on their rights with special emphasis on the rights of the girl child. On behalf of the Corps Legal Aid Scheme, Oyo State, I say thank you to our Schedule Officer, CDS Coordinator, State Coordinator and Oyo state as a whole. Serving the Legal Aid CDS has been the highlight of my service year and I know as you read this Journal, mostly authored by members of this scheme, the bright intellect i and wit of these young scholars will immediately be evident. Enjoy your read! Kako Johnson MAVALLA, OY/16B/2930 President, Legal Aid Scheme, Oyo State LEGAL AID SCHEME EXECUTIVES          Amudalat Toyin SALAUDEEN OY/16B/1532 Vice President Temitope Victor EYIOLAWI OY/16B/0565 General Secretary Chukwudubem Chukwueloka OKEKE OY/16B/1485 Assistant General Secretary Walter KNOWLEDGE OY/16B/0335O Director of Litigation Damilola Temilola OKUNLOLA OY/16B/1908 Director of Social/Welfare Bisola Seyi BADEJO OY/16B/3073 Financial Secretary Olabisi Bolanle OSHUNTOYE OY/16B/3006 Assistant Financial Secretary Kelechi Opeoluwa NNAMADIM OY/16B/1453 P. R. O. Abiola Yusuf MOHAMMED Disciplinary Officer OY/16B/0609 ii PREFACE The journal was borne out of the need to harness and improve on the culture of reading, research and writing which are core skills to be learnt by lawyers, and all associates of Legal Aid. When I was called upon to champion and head this cause, I was a bit skeptical, and I found out I was not completely wrong, about how the turnout would be. I suggested the Call for Papers be open to Legal Aid corps members in other states and senior lawyers. Fortunately, it worked and I am most proud to state that eleven of the thirteen published submissions, in this volume, are by Legal Aid corps members nationwide. The articles delve into a wide range of areas of law, from criminal law principles to practice and procedure; constitutional law and analysis of Presidential assented Bills; health law; internet/technology law and corporate law. Completing this project did not happen without its challenges. Despite setbacks, I was determined to see this through. Dr. John Akintayo, a dear senior member of the Bar and my lecturer from the University of Ibadan, had called the journal my baby and I had realized how important it was to see it to fruition. First, it was the harsh reality of juggling demanding work at our Primary Places of Assignment (PPA), and other service year activities with this project. Then, it was the how - to on efficiently managing one day a week to fund-raising, firm visits, article editing and running of errands that the publication seriously needed. Sadly also, the committee had to inevitably move forward without the honoree we initially decided on. The situation had made the completion seem bleak. All in all, we have learnt invaluable lessons in resilience that should forge us ahead personally and in the practice of law. With a deep sense of accomplishment, I bless God for the success of this publication. I am indebted to the committee for their commitment to the realization of this work. I sincerely thank our financial contributors and mentors – Legal Aid Schedule Officer, Comrade Akin Asifatu; my principal, Dr. Akin Onigbinde SAN, FCArb; Mr. Adenipekun SAN; the Chairman, Mr. Akeem Agbaje, and executives of the Nigerian Bar Association, Ibadan; the Attorney-General and Commissioner for Justice of Oyo State, Mr. Oluseun Abimbola; Former Attorney-General and Commissioner for Justice of Oyo State, Mr. Adebayo Ojo; Mr. Oluwashina Ogungbade; Mr. Kamal Oyerinde; and all others who have encouraged us in this work. I congratulate the Kako J. Mavalla led-executives and members of Legal Aid Scheme, Oyo State, for their vision and I equally, thank them for giving me this opportunity to serve. Finally, I want to express my heartfelt gratitude to my colleagues at Dr. Akin Onigbinde SAN & Co. for making my service year a memorable one and, specially, thank Victor Okereke, for helping out with errands and being my cheerleader. iii This issue is intended to educate students of law, lawyers-in-equity, young and senior lawyers and the general public. I daresay, that this issue will be cited for reference purposes and, maybe soon, the authors will cite their articles for applications for privileges in the legal profession. As a guide, I comically add that you may read this book from the front, the middle or the back, but read you must. Mary-Anne Adeola OGUNLEYE OY/16B/3184 Editor/Chairperson, Journal Committee October 2017 EDITORIAL TEAM      Charles Emmanuel EKPO OY/17A/0525 Co-Editor Oluwafemi Ayodeji OJOSU OY/16B/7740 Member, Journal Committee Emmanuella Ovovwero OGBIJA OY/16B/1758 Member, Journal Committee Oyindamola Olamide ABODUNRIN OY/16B/7597 Member, Journal Committee Ajibayo Daniel OKE Member, Journal Committee OY/16B/7564 iv TABLE OF CONTENTS President´s Address…………………………………………………………………………………..i-ii Preface…………………………………………………………………………………………………iii-iv Recent Development in the Derivative Right to Passport and Freedom of Movement under the Nigerian Constitution.........................................………….1-11 The North East Development Commission (NEDC) Bill: Implications of its Implementation on Nigeria’s Grand Strategy Against Insurgency in the North East....................................................................................12-19 Canons of Interpretation; From Lex Lata to Lex Ferenda............................................…….20-26 Interest, Diffidence, Rigidity and The Challenge of Constitutional Change – The Nigeria’s Experience..........................................................27-34 Death Penalty on Pregnant Women; A Double Jeopardy…………………………………......35-40 Injustice Surrounding the Position of the Nigerian Criminal Law on Extra-Judicial Confessions……………………………………………41-51 Doctrine of Ouster Clauses, A Legitimate Mockery to our Rule Of Law; A Call for Judicial Activism………………………………………………..52-62 Heroes and Villians: Appointment and Confirmation of Officers under Section 171 of the Constitution and other Cases of the Nigerian Drama…………..…………………………………………………..63-69 Liabilities of Intermediaries in Ecommerce Transactions under Nigeria’s Electronic Transactions Bill 2017…………………………………………........70-77 Confidentiality and Best Practices In Health Sector……………………………………………..78-85 Human Resources in the Nigerian Legal System: Issues Regarding the Optimal Participation and Productivity of Women and Youths in the Legal Profession………………………………………………….86-92 Service of Processes Out of Jurisdiction: The Peculiar Case of the Federal High Court……………………………………………………93-101 The Salomon Principle: Of What Relevance in Today’s Business World.............................102-111 v LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. RECENT DEVELOPMENT IN THE DERIVATIVE RIGHT TO PASSPORT AND FREEDOM OF MOVEMENT UNDER THE NIGERIAN CONSTITUTION* By Joseph Onele LL.B. (First Class Honours, University of Ibadan), BL (Hons) Legal Practitioner at Olaniwun Ajayi LP, Lagos, Nigeria; [email protected]; & Joseph J. Ogunmodede LL.B. (First Class Honours, University of Ibadan); [email protected] ABSTRACT This article considers the propriety of the statement credited to the Executive Chairman of the FIRS, Mr Babatunde Fowler (at the meeting of the Joint Tax Board held on 28 November 2016 in Abuja) which gave most Nigerians the impressions that there was a policy and/or regulatory move to make tax compliance a requirement for obtaining the Nigerian passport and/or the renewal of the Nigerian passport. Adopting the black-letter approach, this article argues that the ability of a Nigerian to obtain the ‘international passport’ and/or renew it is a right ancillary to the fundamental right of freedom of movement among other rights under the Nigerian Constitution but not a privilege as some scholars have argued, notwithstanding the ‘derogation provisions’ which tend to handicap such rights. Hence, the article submits that any subtle attempt by the government or any other relevant authority to encroach on this ‘fundamental right’ or affect the exercise of this fundamental right is susceptible to being declared unconstitutional by a court of competent jurisdiction. KEYWORDS: Right to Passport, Freedom of Movement, Human Rights, International Human Rights Law, Nigerian Constitution INTRODUCTION It is beyond gainsaying that the Nigerian economy is suffering from economic depression.1 However, in appraising the precarious situation and evaluating the options open to the Nigerian government, a sizeable number of concerned Nigerians and members of the international community have decried the ‘approach’ of the Nigerian government in addressing the gloomy state of the Nigerian economy.2 More importantly, there appears to be some form of consensus that the recent ‘regulatory moves’ of certain regulatory authorities in Nigeria would leave one in no doubt as to the misguided priorities of the President Buhariled-administration, particularly exemplified by the Financial Reporting Council of Nigeria (FRCN),3 the Nigerian Communications Commission (NCC)4 and more recently, the Federal * Authors 1 Nathalie Thomas, Financial Times (London, 23 November, 2016), ‘Nigerian economy remains firmly in recession’ <http://www.ft.com/content/b860c57e-1b2f-3da1-b14b-240000001748/> accessed 11 February 2017. 2 BBC News, ‘Nigerian Economy slips into recession’ BBC Business News(London, August 31, 2016) <http://www.bbc.com/news/business-327228741/> accessed 10 February 2017. 3 Chris Ugwu, New Telegraph (Nigeria, 9 November, 2016),‘Uproar over National Code of Corporate Governance’ <http://newtelegraphonline.com/business/uproar-national-code-corporate-governance/> accessed 10 February 2017. 1 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Inland Revenue Service (FIRS)5- all regulatory authorities, who some Nigerians marvel at for their seemly ‘loss of touch’ with the ‘reality’ in the country,6 the illusion of regulating for public good when most Nigerians actually get the impression that such regulations are ‘antipublic good’,7 and ill-timed policies and regulations8anchored on weak legal foundation. THESIS STATEMENT AND RESEARCH METHODOLOGY Whilst mindful of the fact that both the FRCN’s decision to issue its Code of Corporate Governance for Private Sector and Not-for-Profit entities as well as the NCC’s decision to increase the ‘broadband and data services in Nigeria’9 have been overtaken by events,10 this article seeks to examine primarily, the latest ‘policy and/or regulatory approach’ by the FIRS which seeks to curtail the ability of Nigerians to obtain or renew their international passports and test same against the existing legal framework in Nigeria. In essence, this article considers the propriety of the statement credited to the Executive Chairman of the FIRS, Mr. Babatunde Fowler (at the meeting of the Joint Tax Board held on 28 November 2016 in Abuja) which gave most Nigerians the impressions that there was a policy and/or regulatory move to make tax compliance a requirement for obtaining the Nigerian passport and/or the renewal of the Nigerian passport.11 Further to the foregoing and adopting the black-letter approach,12 this article argues that the ability of a Nigerian to obtain the ‘international passport’ and/or renew it is a right ancillary to the fundamental right of freedom of movement among other rights under the Nigerian but not a privilege as some scholars have argued, notwithstanding the ‘derogation provisions’ which tend to handicap such rights. Hence, the articles submits that any subtle attempt by the Ifreke Inyang, ‘GSM subscribers in Nigeria to pay more for data from December 1’ Daily Post (Nigeria, 29 November, 2016) <http://dailypost.ng/2016/11/29/gsm-subscribers-nigeria-pay-data-december-1/> accessed 10 February, 2017 5 Tony Ogbonna, ‘Nigerians to pay VAT on international passports- FIRS’ Vanguard (Nigeria, 28 November, 2016)<http://www.vanguardngr.com/2016/11/nigerians-pay-vatinternational-passport-firs/>accessed 9 February 2017 6 Jide Akintunde, Martins Hile, Chibuike, Oguh, ‘Buhari’s Change Puts Nigeria in troubled waters’ Financial Nigeria (Nigeria, 9 December, 2016) <http://www.financialnigeria.com/buhari-s-change-puts-nigeria-introubled-waters-feature-103.html?sthash.6oodRcXP.mjjo/> accessed 11 February 2017 7 Evarest Amaefule and Ozioma Ubabukoh, ‘NCC bows to pressure suspends data tariff increase’ The Punch (Nigeria, 1 December, 2016) <http://punchng.com/ncc-bows-pressure-suspends-data-tariff-increase/> accessed 10 February 2017; Mark Igiehon, ‘Law, economics, public interest and the theory of regulatory capture’ 8(2) (2004) Mountbatten Journal of Legal Studies 2, 10-17; Jorgen Gronnegaard Christensen, ‘Public interest regulation reconsidered: From capture to credible commitment’ (Paper presented at ‘Regulation at the Age of Crisis,’ ECPR Regulatory Governance Standing Group, 3rd Biennial Conference, University College, Dublin, June 17-19, 2010) 8 Robert Baldwin et al, Understanding Regulation: Theory, Strategy and Practice (2nd Edn. Oxford University Press (OUP)) 26-31; see for instance, Joseph Onele, ‘The Financial Reporting Council of Nigeria and Her Misguided Regulatory Approach: A classic example of how not to be a regulator’ <https://www.linkedin.com/pulse/financial-reporting-council-nigeria-her-misguided-regulatoryonele?articleId=6225384314029375488#comments-6225384314029375488&trk=prof-post> accessed 5 March 2017 9 Adekunle, ‘NCC’s directive on data tarrif increase insensitive – Telecoms consumers’ Vanguard (Nigeria, 30 November, 2016) <http://www.vanguardngr.com/2016/11/nccs-directive-data-tariff-increase-insensitivetelecoms-consumers/> accessed 10 February, 2017 10 Toyin Lasinde, ‘NECA hails suspension of FRCN’s Corporate governance code’ The Guardian (Nigeria, 8 November 2016)<http://m.guardian.ng/news/neca-hails-suspension-of-frcns-corporate-governance-code/> accessed 9 February 2017 11 Tony Ogbonna (n 5) 12 Shazia Qureshi, ‘Research Methodology in Law and its Application to Women’s Human Rights,’22(2) (2015) Journal of Political Studies629, 643 4 2 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. government or any other relevant authority to encroach on this ‘fundamental right’or affect the exercise of this fundamental right is susceptible to being declared unconstitutional by a court of competent jurisdiction. It should be noted, however, that the article does not consider the nature of the ancillary right of a Nigeria citizens to a passport (which is arguably implied under the constitutional provisions relating to freedom of movement, freedom of association and right to personal liberty) vis-à-vis the constitutional right to property,13 as the present writers takes the view that the analysis is not necessary for the resolution of issues identified in this article. FREEDOM OF MOVEMENT AND THE POSITION UNDER THE NIGERIAN CONSTITUTION Having laid the necessary foundation for a seamless discussion of the major legal issues thrown by this article, the authors will proceed to examine the nature of relevant fundamental rights provided in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as the Nigerian Constitution). First, a cursory look at Section 41(1) of the Nigerian Constitution will reveal that ‘[e]very citizen of Nigeria is entitled to move freely throughout Nigeria and reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.’ From a calm reading of Section 41 of the Nigerian Constitution, in particular, the words in bold, it can be safely argued that all Nigerian citizens are guaranteed the freedom of movement which includes the right to ingress into Nigeria and egress from Nigeria. It seems also plausible to argue that the constitutional right to freedom of movement is ordinarily made possible by a Nigerian Passport. Consequently, it may also not be out of place for one to argue that the fundamental right to move freely throughout Nigeria as well as the ‘freedom of entry and exit’ from Nigeria, is one that the Nigerian Constitution does not contemplate should be hindered or obstructed in any form or by whatever means except for the clearly limited exceptional instances, already stipulated in the Nigerian Constitution. These few constitutionally ‘permitted instances’ when the right to freedom of movement can derogated from will be discussed later on in this article. The foregoing said, this article will now proceed to making a case for the purposive interpretation of Section 41(1) of the Nigerian Constitution as same is very crucial to unravelling the crux of this article. MAKING A CASE FOR PURPOSIVE INTERPRETATION FOR SECTION 41(1) OF THE NIGERIAN CONSTITUTION Further total reading of Section 41(1) of the Nigerian Constitution, it is argued that a purposive interpretation14 of the freedom of movement provision in the Nigerian Constitution would reveal that the draftsmen did contemplate that Nigerian citizens should be provided Obiora Chinedu Okafor, ‘The Fundamental Right to a Passport under Nigerian Law: An Integrated Viewpoint,’ 40(1) (1996) Journal of African Law 53-61 14 P.E. Oshio, ‘Towards a Purposive Approach to the 1999 Constitution,’ <http://webcache.googleusercontent.com/search?q=cache:ATzBNGmhDYwJ:www.nigerianlawguru.com/article s/constitutional%2520law/TOWARDS%2520A%2520PURPOSIVE%2520APPROACH%2520TO%2520THE %2520INTERPRETATION%2520OF%2520THE%25201999%2520CONSTITUTION.pdf+&cd=1&hl=en&ct =clnk&gl=uk> accessed 4 March 2017; Ehi Oshio, ‘The Changeless Change in Constitutional Interpretation: The Purposive Approach and the Case of The Five Governors’ ; Elijah Adewale Taiwo, ‘Enforcement of fundamental rights and the standing rules under the Nigerian Constitution: A need for a more liberal provision’ 9(2) (2009) African Human Rights Law Journal 546-575 13 3 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. with every facility (including a passport) necessary to enjoy their fundamental rights, which in this case is the freedom of movement protected by Section 41(1) of the Nigerian Constitution. The foregoing argument is bolstered by the decision of the Supreme Court, Per Udo Udoma JSC in Nafiu Rabiu v The State15 where his Lordship said: ‘My Lords, in my opinion, it is the duty of this court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the Land…and…where the question is whether the constitution has used an expression in the wider or in the narrow sense, in my view, this court should whenever possible, and in response to the demand of justice, lean to the broader interpretation.’ In the recent case of Attorney-General of the Federation v. Abubakar,16 the Supreme Court observed: ‘It has been said in one of the briefs before us that the case at hand is, by every standard, a novel one. I entirely agree; given the facts of this case and the little research I have carried out I have not come across any judicial decision relating to the peculiar facts of this case. But, no legal problem or issue must defy legal solution. Were this not to be so, the society, as usual, will continue to move ahead, law, God forbid, will then remain stagnant and consequently become useless to mankind. With this unfortunate consequence at the back of his mind, a Judge, whenever faced with a new situation which has not been considered before, by his ingenuity regulated by law,must say what the law is on that new situation; after all, law has avery wide tentacle and must find solution to all man-made problems.In so doing, let no Judge regard himself as making law or even changing law. He (the judex) only declares it (law) – he considers the new situation, on principle and then pronounces upon it. To me, that is, the practical form of the saying that the law lies in the breast of the Judges.’17 The Supreme Court recently explained the same principle in Amaechi v. INEC18 as follows: ‘…the primary duty of the court is to do justice to all manner of men who are in all matters before it. It then seems to me clear, that when the court sets out to do justice so as to cover new conditions or situations placed before it, there is always that temptation, a compelling one, to have recourse to equitable principles. A court, in the exercise of its equitable jurisdiction must be seen as a court of conscience. And Judges who dispense justice in this court of law and equity must always be ready to address new problems and even create new doctrines where the justice of the matter so requires.’19 Oputa JSC once counselled judges on this thus: ‘The judge should appreciate that in the final analysis the end of law is justice. He should therefore endeavour to see that the law and the justice of the individual case he is trying go hand in hand… To this end he should be advised that the spirit of justice does not reside in formalities, not in words, nor is the triumph of the administration of justice to be found in successfully picking a way between pitfalls of technicalities. He should know that all said and done, the law is, or ought to be, but a handmaid of justice, and inflexibility which is the most becoming robe of law often serves to render justice grotesque. In any ‘fight’ between law and 15 Nafiu Rabiu v The State (1981) 2 N.C.L.R. 293 at 326 (Nigeria) (2007) 10 N.W.L.R. (Pt. 1041) p.1 @ 171-172 (per Aderemi, J.S.C.) 17 Attorney-General of the Federation v. Abubakar(2007) 10 N.W.L.R. (Pt. 1041) p.1 @ 171-172 (per Aderemi, J.S.C.) 18 (2008) 5 N.W.L.R. (pt. 1080) 227 @ p.451 (per Aderemi, J.S.C.) 19 Amaechi v. INEC (2008) 5 N.W.L.R. (pt. 1080) 227 @ p.451 (per Aderemi, J.S.C.) 16 4 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. justice the judge should ensure that justice prevails – that was the very reason for the emergence of equity in the administration of justice. The judge should always ask himself if his decision, though legally impeccable in the end achieved a fair result. ‘That may be law but definitely not justice’ is a sad commentary on any decision.’20 Also, in Amaechi v. INEC (2008)5 NWLR (Pt. 1080) p. 227 @ 315) Oguntade JSC quoted, with approval, the dictum of Lord Denning M.R. on this score in the case of Packer v. Packer (1958) 15 at 22 where the Law Lord had declared: ‘What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goeson and that will be bad for both.’ Furthermore, making recourse to Professor Hohfeld’s concept of ‘right’ and ‘duty’, 21 it can be argued that where a Nigerian citizen has a right to freedom of movement, which as earlier mentioned, would arguably necessarily include the Nigerian passport as the passport is a necessary facility to enjoying the fundamental right in the case of ingress and egress, then the Nigerian government or any other authority or person, has a corresponding duty, by law, not to act in any way that would affect the enjoyment of the right. It is on this note that Professor Obiora Okafor who opined that the right to a passport is a derivable right from the right of every person to freedom of movement, freedom of association and right to personal liberty. The foregoing submission becomes even more compelling when one considers the submission that a Nigerian passport is not only a fundamental proof of one being a Nigerian and identity document for travel purposes (O’Connell 1970; Nylander 1973) but also take into consideration Lord Diplock’s declaration in A.G. of Gambia v Jobe22 where the Law Lord stated eruditely thus: ‘A constitution and, in particular, that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to entitled is to be given a purpose construction.’23 In Pepper (Inspector of Taxes) v. Hart,24 the House of Lords, England (per Lord Griffiths) declared: ‘The days have long passed when the Courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The Courts Quoted by Azinge, E. “Living Oracles of the Law and the Fallacy of Human Divination” 6th Justice Idigbe Memorial Lecture, Faculty of Law, University of Benin, p.8. 21 Nikolai Lazarev, ‘Hohfeld’s Analysis of Rights: An Essential Approach to a Conceptual and Practical Understanding of the Nature of Rights.’ [2005] Murdoch University Electronic Journal of Law 9 <http://www.austlii.edu.au/au/journals/MurUEJL/2005/9.html> accessed 4 March 2017; Isaac Husik, ‘Hohfeld’s Jurisprudence’ University of Pennsylvania Law Review 263-277; Arthur Corbin, ‘Rights and Duties’ 1(1) (1924) 33 Yale Law Journal 502; W. Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ 23 (1913) Yale Law Journal 16, 28-59; Joseph William Singer, ‘The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld,’ (1982) Wisconsin Law Review 975 22 A.G. of Gambia v Jobe [1984] A.C. 680, 700 (Gambia) 23 A.G. of Gambia v Jobe [1984] A.C. 680, 700 (Gambia) 24 (1993) 1 ALL E.R.42 20 5 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. must adopt a purposive approach which seeks to give effect to the true purpose of the legislation.’25 It is equally important to allude to the dictum of one of the most indefatigable champions of the purposive approach to the interpretation of constitutional provisions, Lord Denning, Master of the Roll, who in Magor and St. Mellons Rural District Council v. Newport Corporation26opined thus: ‘The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the “purposive approach”…In all cases now in the interpretation of statutes we adopt such a construction as will “promote the general legislative purpose” underlying the provision.’27 Lord Denning explained the problem thus: “Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise and even, if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were...”28 Writing further in this regard, the Master of the Roll opined thus: “It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon’s case, and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden. … Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alterthe material of which it is woven, but he can and should iron out thecreases.29 In Magor and St Mellons Rural District Council v. Newport Corporation,30 Lord Denning attempted to reaffirm the above approach when he said: “We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we 25 Pepper (Inspector of Taxes) v. Hart (1993) 1 ALL E.R.42, HL (per Lord Griffiths) Magor and St. Mellons Rural District Council v. Newport Corporation [1951] 2 All ER 839, [1952] AC 189 27 Magor and St. Mellons Rural District Council v. Newport Corporation [1951] 2 All ER 839, [1952] AC 189 28 Seaford Court Estates Ltd. v. Asher (1949) 2 K.B. 481, 498 29 Seaford Court Estates Ltd v. Asher (1949) 2 K.B.481. 498. For more on this development, see Denning, L.J. The Discipline of Law, Butterworths, London, 1979 30 (1951) 2 All E.R.839 26 6 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”31 THE FREEDOM OF MOVEMENT: A RIGHT WITHOUT ANY EXCEPTION? The present authors are not oblivious of the provisions of the Nigerian Constitution which provides for limited circumstances where there can derogation from the freedom of movement. However, there are seemly two different schools of thought on the exceptions to this right as it concerns the issue of tax compliance as a requirement for the issuance or renewal of international passport. The first school of thought considers strictly the derogations directly provided under Section 41(2) of the Nigerian Constitution wherein the limited circumstances are basically where any law that is ‘reasonably justifiable’ in a democratic society: (a) imposes restriction on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or (b) provides for the removal of any person from Nigeria to any other country to be tried outside Nigeria for any criminal offence; or (c) provides for the removal of any person from Nigeria to undergo imprisonment outside Nigeria in the execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty provided there is a reciprocal agreement between Nigeria and such country in relation to such matter. Having alluded to the instances recognized under the Nigerian Constitution when the freedom of movement and the right to personal liberty may be derogated from, it is humbly submitted that where a Nigerian citizens is subjected to any restriction that does not fall within any of the exceptions in Section 41(2) of the Nigerian Constitution (cited earlier), a court of competent jurisdiction would be more disposed to declaring such law, regulation or policy unconstitutional and as such, null and void in accordance with Section 1(1) & (3) of the Nigerian Constitution. In the same vein, it is quite apposite to mention that Section 13(1) of the Immigration Act, 201532grants Nigeria’s Interior Minister, the discretionary power to ‘cancel or withdraw any person issued to any person if(a) the passport is obtained by fraud; or (b) a person unlawfully holds more than one passport at the same time. Additionally, whilst Section 9(1) of the Immigration Act 2015 vests the Comptroller-General with the power to issue Nigerian Passports, Section 9(2) of the Immigration Act 2015 expressly provides that Nigerian Passports shall be issued only to bona fide citizens, within and outside Nigeria. Section 2 of the Immigration Act, 2015 imposes certain duties on Nigeria Immigration Service which essentially are: (a) the control of persons entering or leaving Nigeria; (b) issuance of travel documents including Nigerian passports, to bona fide Nigerians and outside Nigeria; (c) issuance of residence permit to foreigners in Nigeria; 31 (1951) 2 All E.R.839 Section 114 of the Immigration Act 2015 repeals both the Passport (Miscellaneous Provisions) Act. Cap. P1, Laws of the Federation of Nigeria (LFN) 2004 and the Immigration Act, Cap I1, LFN, 2004 32 7 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (d) border surveillance and patrol; and (e) enforcement of laws and regulations with which they are directly charged. Relatedly, the Article 12 of the African Charter allows for some exceptions. Whilst noting that ‘[e]very individual is entitled to the right to leave any country including his own, and return to his country,’ the African Charter provides that this right may only be subject to ‘restrictions, provided for by law for the protection of national security, law and order, public health or morality.’ Flowing from a read of Article 12 of the African Charter, it could be argued that for any restriction(s) on the right of a Nigerian Citizen to leave Nigeria and return at will to be effective, such restraint must fall under any of the following heads: (a) National security; (b) Law and order; (c) Public health or morality. Nonetheless, given the ‘wide’ and ‘wild’ nature of the instances when derogation is allowed in the event of any seemly conflict between the African Charter and the Nigerian Constitution, the Nigerian Constitution will prevail and any provision(s) of the African Charter that is inconsistent with the Nigerian Constitution will be null and void to the extent of its inconsistency. Similarly, Article 12(2) of the ICCPR provides that ‘[e]veryone shall be free to leave any country, including his own,’ whilst Article 12(3) stipulates that rights shall not be subject to any restrictions except those which are provided by law and are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present ICCPR. It is again the contention of the loyalists of the first school of thought that in the case of any seemly conflict between the Nigerian Constitution and the ICCPR, assuming arguendo that the ICCPR has been domesticated under Nigerian law, the Nigerian Constitution will prevail.It must therefore be clearly pointed out at this juncture that the crux of the view of the first school of thought isthat the introduction of tax compliance as a sine qua non for issuance or renewal of international passport is not for national security, public order, public health or public morality but for the purpose of revenue generation which, by implication, it amounts to an infringement of the fundamental right to freedom of movement. The second school of thought holds the view that the regulation which prescribes tax compliance as a requirement for the issuance or renewal of international passportis not an infringement on the fundamental right to freedom of movement under the Nigerian law. The argument proffered by the loyalists of this school of thought is that the derogations provided under Section 45 of the Nigerian Constitution are generally applicable to the all fundamental human rights provisions in the Nigerian Constitution and the tax compliance requirement is a cogent ground for such derogation. Section 45 of the Nigeria Constitution (which is in pari materia with Article 12 of the African Charter) provides as follows: (1) Nothing in sections 37, 38, 39, 40 and 41of this constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) In the interest of defence, public safety, public order, public morality or public health; or (b) For the purpose of protecting the rights and freedom of other persons. It can therefore be garnered from the foregoing that the exceptions in Section 41(2) of the Nigerian Constitution are not the only exceptions recognized in relation to the fundamental right to freedom of movement, as the Nigerian Constitution also give recognition to the 8 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. derogation under Section 45 of the Constitution. If this school of thought is adopted, it is the view of the present writers that the initial legal analysis on the supremacy of the Nigerian Constitution over the African Charter will no longer be necessary. Sequel to the foregoing, it is now established that the provision of Section 41 of the Nigerian Constitution can be derogated from on the grounds provided under Section 45 of the Nigerian Constitution and the reasons for this is not farfetched. It is submitted that the introduction tax compliance as a necessary requirement for international passport issuance or renewal can be said to be reasonably justifiable in this context. We can’t but ask; why the unscrupulous tax evasion by some Nigerians and subsequent attempt to move out of the country after enjoying the facilities built from the taxes paid by some other Nigerians? Critically examined, it is contended strongly that this move is unfavourable to defence considering the fact that the funds used in the procurement of arms and ammunition are gotten from taxes. The regulation can also be said to be in the interest of public order because it may get to thepoint of public protest, riot and rebellion by the complaint citizens against both the government and the tax evaders in the demand for an egalitarian treatment. Furthermore, it can be argued that it is reasonably justifiable for the purpose of protecting the rights and freedom of other persons who faithfully pay their taxes and will remain in Nigeria upon the exit of the migrants. However, as erudite as the arguments on the justification of such regulations on the basis of the second school of thought may appear, it is pertinent to state that it has been regarded by many scholars as a formidable impediment to optimal enjoyment, protection and promotion of the fundamental rights in Nigeria.33 Admittedly, there may be no absolute right without qualifications, but the constitutional provisions limiting the rights guaranteed are somewhat imprecise, indeed nebulous, and as such constitute a drawback in the effort to promote human rights.34 For instance, what law is “reasonably justifiable in a democratic society” neither enjoys any definition not is it capable of any precise articulation and many courts have grapple with this problem overtime.35In fact, this vague legal phrase can serve as a creek for the creation of a unjust double standard in the interpretation of such laws, policies and regulations by the judiciary the result of which is the ultimate defeat of the purpose of the draftsmen. All these factors are clear pointers to the fact that the Nigerian government needs to exercise extra degree of care in the making and rolling out of policies and regulations like these into the society. At this point, it is pertinent to emphasize that the Nigerian government should go further to make such policies and regulations a “living law” in form of concrete enforcement based on the principles of equity. Put differently, there should be “equality before the law” in the implementation of such policies and regulations if speedy development which is the expected outcome is not to be sacrificed on the altar of faulty administrative and quasi-legislative activities. If this holistic approach is adopted, the common man in the Nigerian society will not be the major victim at end of the day considering that the ruling class which is made up of a microscopic few members of the society swimming in affluence in form of big companies Jacob Abiodun Dada, ‘Impediment to Human Rights Protection in Nigeria: Annual Survey of International & Comparative Law, Vol. 18, 2012Iss. 1, Art. 6, p. 76 34 Ibid 35 Ibid. See Olawoyin v. A.G. Northern Region [1961] 1 N.L.R. 269 (Nigeria); Williams v. Majekodunmi [1962] 1. N.L.R. 413(Nigeria). 33 9 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. and exorbitant incomes have been found to be Kings in the Kingdoms of tax evasion and Emperors in the Empires foreign trips.36 THE NIGERIAN COURTS AND THE ‘DERIVATIVE’ FUNDAMENTAL RIGHT TO A PASSPORT: LESSONS FROM OTHER JURISDICTIONS According to Prof. Obiora Okafor, Nigerians, in the exercise of their rights to personal liberty and freedom of movement as well as right to (private) property are entitled in law to enter and leave the country freely. The learned Professor of International Law, who is an international legal expert on Human Rights and currently the Chairperson of the United Nations Human Rights Council Advisory Committee, asserts that the trio of the right to personal liberty37, freedom of movement38 and the right to property39 ‘constitute the parent rights from where their respective individual rights to own and retain a passport derives.' Making reference to the case of Alhaji Shugaba Darman v Minister of Internal Affairs,40 he notes that a person who cannot identify himself by showing his Nigerian passport will in practice not be able to enter Nigeria without seeking a permit like every foreigner and opines that such a person may be denied entry into Nigeria on this note. The learned Professor further asserts that this would have been the fate of Alhaji Shugaba Darman in the defunct second republic but for the timely intervention of the Nigerian Court which held that the seizure of Alhaji Shugaba Darman's passport infringed his right of exit from Nigeria. On a related note, the Supreme Court, Per Onu JSC, in Director, State Security Services v Agbakoba,41 citing with judical approval, the decision of Taylor L.J. in the English case of R v Secretary of State, Ex Part Everreett,42opined that the grant or refusal of a passport affects the right of individuals and their freedom of movement which includes the right to travel. Worth noting, also, is the decision of the Supreme Court of India, Per Subba Rao, C.J. where it was held in Satwant Singh Sawhney v Assistant Passport Officer and Ors43that possession of a passport is a necessary condition of travel in the international community. Furthermore, in Kent v Dulles,44 the United States (US) Secretary of States refused to issue an American passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism. The Court, Per Justice William Douglas, held that the federal government may not restrict the right to travel without due process and further asserted thus: The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law…If that ‘liberty’ is to be regulated, it must be pursuant to the law-making functions of the Congress…Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country…may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of value. 36 http://saharareporters.com/2017/01/29/only-40-super-rich-nigerians-pay-correct-tax-government-report-states/ Accessed January 29, 2017 37 Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) 38 Ibid Section 41(1) 39 Ibid Section 44(1) 40 Alhaji Shugaba Darman v Minister of Internal Affairs (1981) N.C.L.R. 25 (Nigeria) 41 Director, State Security Services v Agbakoba (1993) 3 NWLR (Pt 595) 314 (Nigeria) 42 R. v Secretary of State, Ex Part Everreett (1989) 1 All E.R. 655 at 660 43 Satwant Singh Sawhney v Assistant Passport Officer and Ors (1967) 3 S.C.R 525 44 Kent v Dulles 357 U.S. 116 (1958) 10 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. In addition, the US Supreme Court in Crandall v Nevada45declared that the freedom of movement is a fundamental right and that a State cannot inhibit people from leaving the State by taxing them. It also useful to note the decision of the American Court in Paul v Virginia46 in 1869 where the American Court defined the freedom of movement as ‘right of free ingress into other States, and egress from them.’ CONCLUSION In sum, this article has argued that where the Nigerian government cannot come within any of the exceptions contemplated of Sections 41(2) of the Nigerian Constitution, it cannot, whether directly or indirectly, deprive a Nigerian citizen of his or her right to the freedom of movement which includes the right to hold a Nigerian passport. Hence, it is argued that should the statement made by the FIRS Chairman (earlier alluded to) about making tax compliance a requirement for obtaining the Nigerian passport and/or the renewal of the Nigerian passport be given effect to and made to see the light of day, an application can be made to a court of competent jurisdiction for the enforcement of fundamental right to freedom of movement in accordance with both Sections 41(1), 46(1) of the Nigerian Constitution and the Fundamental Enforcement Procedure Rules 2009. Conclusively, the present writer cannot but agree more with the law doyen, Chief F.R.A. William QC, SAN, who seeing into the future, opined in 1967 at a speech he delivered at the University of Pennsylvania thus: 'Today, many objective observers would agree that there is a real need, almost everywhere in Africa, for a system of government which will guarantee economic prosperity, full employment, social justice and fundamental liberties for all.' Indeed, there is a 'real need' in Nigeria for positive change and it is up to the President-Buhari-led-government to rise to the occasion and redefine its priorities by not only ensuring that they champion policies and regulations that will guarantee more economic prosperity, social justice and fundamental liberties but also embrace respect for the rule of law for '[t]he King himself ought not to be subject to man, but subject to God and the law, because the law makes him King.'47 45 Crandall v Nevada 73 U.S. 35 (1868) Paul v Virginia 75 U.S. 168 (1869) 47 See Per Lord Chief Justice Coke quoting Bracton in the case of Proclamations (1610) 77 ER 1352http://bracton.law.harvard.edu/Unframed/English/v2/33.htm accessed 11 February, 2017 46 11 LEGAL AID OYO JOURNAL OF LEGAL ISSUES THE NORTH EAST DEVELOPMENT COMMISSION (NEDC) BILL: IMPLICATIONS OF ITS IMPLEMENTATION ON NIGERIA’S GRAND STRATEGY AGAINST INSURGENCY IN THE NORTH EAST By Charles E. Ekpo University of Calabar – Nigeria History & Int’l Studies [email protected] & Kako J. Mavalla ACArb. Babcock University – Nigeria Junior Practicing Mediator at Mediation Centre, Ministry of Justice, Oyo State. [email protected] ABSTRACT This paper examines the implications of the North East Development Commission bill upon its passage into law, on the current government’s struggle at quelling terrorism in the North East region. Adopting the qualitative approach, the work argues that the North East Development Commission Act upon presidential assent and implementation will go a long way at uprooting push and pull factors of terrorism and radical ideologies, thereby, depriving the terrorists readily available pool of apologists, recruits and socio-economically induced sympathizers. The work therefore recommends that the Bill be granted utmost attention and implemented as a coordinating umbrella for both the ‘carrot’ or soft approach and the ‘stick’ or hard campaigns. KEYWORDS: NEDC, counter-terrorism, facilitators of terror ideology, Boko Haram, Soft approach. INTRODUCTION The north east region over the past years has been consistently ravaged and left in a pity state by the unwholesome escapades of the Boko Haram Islamist group. Physically, a chunk of the region’s land area, punctured in time and space, has one time or the other fallen prey to the rampaging ‘banditry’ of the dreaded group. Infrastructures ranging from roads, hospitals, schools, houses, recreational centers, places of worship and rituals, etc have been either buried by bombs and mines or left tattered, shattered and pierced by flying bullets. Women, children, and infact the whole population is not exempted from the Boko Haram atrocities; even animals and the environment are not spared the mayhem and conundrum bequeathed the region by the extremist group. Boko Haram, an Islamic militant group, is said to have metamorphosed from the sectarian group known as Shabaab, established by Lawan Abubakar in 1995. The current nature and physiognomy of the group stems from the structural change in appellation and ideology, fostered it by Muhammed Yusuf, who by 1999, had assumed full leadership of the group. With archaic and anti-western choreographed religious philosophy, Yusuf sustained the group, indoctrinated its members, allied with other transnational extremist groups and launched a ‘heavyweight sortie’ against the Nigerian government. Succinctly, he graved for LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. the renascent of the old order where the caliphate would be restored through the reinvigoration of the sharia jurisprudence and the reprobation of western culture and innovation 1 . As it became conspicuous that the group posed grave structural threats to national security and territorial integrity of the nation, it was countered with a naked force by the Nigerian government, leading to spree and series of violence – the highpoint being the preposterous murdering of Muhammed Yusuf by the police in 2009. Yusuf’s death revolutionized the tactics, motivation and justification to reorganize; henceforth, it became a war of ideas, legitimacy and authority. Boko Haram has, between May, 2011 and December, 2014, killed more than 8,400 persons and another 7,900 were killed in fighting between the sect and the Nigeria’s security forces 2. There were about 330 attacks between January and June, 2014 with 4,483 fatalities3. Seemingly, the number of suicide attacks in 2014 alone is pegged at 4,066 4 while total death toll to the year 2015 is said to notch some 13,9745. As earlier hinted, the government’s reaction has been majorly direct, hard, confrontational and unnecessary flexing of wanton and superfluous muscle. Defense budgets have skyrocketed over the years from billions in Naira to billions in dollars. N100 billion ($625 million) was the budgeted spending for the year 2010; N927 billion ($6 billion) in the year 2011; N1 trillion ($6.25 billion) in 2012, 2013 and 2014 respectively6. On two occasions (December, 2015 and December, 2016), the Nigerian government has declared “technical victory” and “victory” over the dreaded group and the army corps had retrieved the regalia (Koran and flag) of the group’s echelon. However, attacks leading to the loss of over 2500 lives have preceded and succeeded such claims. In fact, empirical evidences have shown that the war on terrorism is still a raging one and demands utmost attention than never. Suffice it is argued that the lethal attacks unleashed by the group and its sympathizers by the federal troops became, and is still, retrogressive and with other things, quadruples the grievance ratio, pool of apologists and readily available reservoirs for recruits. This paper thus analyzes the implications of the North East Development Commission Bill when passed into law, on the grand strategy of Nigeria against terrorism. The subsequent headings examine the striking features and provisions of the bill and as well justify the need for it speedy implementation if the government must win the war on terrorism. THE NORTH EAST DEVELOPMENT COMMISSION BILL EXAMINED The North East Development Commission (NEDC) bill was proposed and presented to the Nigerian Senate on May, 2015 by Senator Abdul-Aziz Murtala Nyako, a Senator representing Adamawa Central Constituency of Adamawa State. The bill as proposed, seek to “sustainably See Ekpo, C. E. “Between Counterterrorism, Human Rights and National Security: the Nigeria’s Government Dilemma” A Paper Presented at the 1st NAHISS Conference, the Faculty of Arts Auditorium University of Calabar, Calabar - Nigeria, (September, 2016). pp.9-10. 2 “Nigeria” USCIRF Annual Report, (2015).p.103. 3 Stevenson, J., “Boko Haram, ISIS and Al-Shabaab in Comparative Perspectives”. A Presentation at Nigeria Security Exhibition and Conference,(2015).p.36. 4 Eneanya, A. N., “Terrorism and Global Domestic Insurgency Nexus: A Case of Boko Haram Insurgency in Nigeria”. Journal of Public Management & Social Policy, (Vol.21, No.1, 2015).p.86. 5 Onuoha, F. C., & George, T. O., “Boko Haram’s Use of the Female Suicide Bombing in Nigeria”. Report, Al Jazeera Centre for Studies, (2015).p.3. 6 “Nigeria” USCIRF Annual Report, (2015). p.30. 1 13 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. normalize the security situation in the North East Nigeria by facilitating progressive socioeconomic programs for the zone”7. The objectives as highlighted in the proposal included: [a] to facilitate relevant capacity and capability building for youths and women; [b] (re)equip the youths with basic skills in security and intelligence processes as a step towards neutralization of insurgency cells in the North East; [c] strengthen community institutions/self-help structures and promote their synergy with public ones; [d] design and execute programs of self-return and reintegration of refugees/IDPs to their original homes; [e] general stabilization of the socioeconomic situation in communities affected by insurgency; [f] encourage initiatives that will promote a long term economic recovery process [g] generate support for family heads legitimate engagement8. The initiative is designed to run on four simultaneous dimensions: political/governance; diplomatic; security/peace-building; and socioeconomic. Under the political/governance dimension, the bill calls for political mobilization of the youths for socioeconomic empowerment of the region; national dialogue to build trust, confidence and consensus on the way forward; establishing and developing the NEDC as an institutional framework; utilizing Faith-Based Organizations (FBO) and Community-Based Organization (CBO) for peace building; and de-radicalization and intelligence gathering. Under the diplomatic dimension, the bill admonishes the institutionalization of the present regional counterterrorism framework; the design of an arms control strategy; migration management and control and wider support for campaigns against indoctrination; and the mobilization of international partners for funds and support. Under security/peace building, the bill proposes the use of force to neutralize insurgents; disarmament and demobilization of insurgents and potential volunteers; de-mining and creating awareness on the dangers of mines; capacity development of non-military security agencies; military adherence to ethics, rule of engagement and human rights; and more attention to early warning system and signs. Under socioeconomic, the bill seeks for stable and sustainable agriculture, massive education and skill acquisition projects; reconstruction of damaged infrastructures; ensuring of social safety nets and designing of a development plan on the areas of agriculture, education and infrastructure9. Seemingly, the Commission as reflected by the Commission’s Act (2016) is to be financed by: funds from the federal government’s direct monthly allocations (not less than 10% of the total monthly allocation due for member states); a sum of not less than 10% of the ecological funds annually for a period of 10 years; a sum equivalent to 3% of the annual VAT collection for a period of 10 years; fees charged by the Commission on mining, extractive, agricultural and other firms operating in the region; grant-aids, loans, testamentary depositions and proceeds from other assets10. The North East Development Commission bill was passed by the National Assembly in 2016 as North East Development Commission (Establishment) Act and was sent for a routine assent by the President on January 12, 2017. But for some issues subsequently observed, it was withdrawn and 17 items or areas were amended. The Act awaits the President’s assent. Nyako, A. M., “North East Development Commission: An Institutional Framework for a Sustainable Solution to the North East National Security Challenge” (May, 2015). p.15. 8 Nyako, “North East Development Commission: p.15. 9 Nyako, “North East Development Commission: pp. 17-19. 10 See North East Development Commission (Establishment) Act, (2016), Part V, Section 14(2). 7 14 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. THE PHILOSOPHICAL AND EMPIRICAL JUSTIFICATION FOR THE NEDC ACT By being exclusively confrontational, aggressive and brutal in its strategy at quelling insurgency in the North East region, it appears the Nigeria’s government has adopted a mono-causal perspective on the lenses of viewing the Boko Haram militants as mere bandits who camouflage on the veneer of religion to perpetrate and perpetuate purposeless, aimless and visionless violence – hence they are to be countered by superior violence. This surmise of a perception, explains why trillions of dollars have been allocated to confrontations and armaments and minute attention paid to the actual causal and facilitative factors. The government’s approach and perception is narrow for even mere bandits are driven and motivated by potential loot and spoils. Hence, the exclusive use of force is in itself repulsive while the use of lethal and naked force is retrogressive. Thus it is pointed out that “the retrogressive strategies adopted by the federal government at different stages of the conflict has created many “widows”, “widowers”, “orphans” etc. Frustrations of losing loved ones had aggravated the “collective grievance” which had garnered a pool of supporters and sympathizers to the terrorists’ cause”11. From opinions harnessed from scholarly articles, it appears the government itself has a question to answer on the rise and deteriorating situations of insurgency in the North East region. According to Ogunboyede, “the genesis of terrorism could be traced to bad governance in Nigeria” and that “contemporary terrorism in Nigeria is a latent function of prolonged failure of the Nigerian state to deliver purposeful good governance”12. Aleyomi is even more elaborate when he submitted that: ´The failure of the Nigerian leaders to establish good governance may have hampered national integration which has led to mass poverty and unemployment. This has resulted into communal, ethnic, religious and class conflicts that have now characterized the entire Nigerian nation. Poverty and unemployment have therefore served as nursery bed for many ethno religious conflicts in Nigeria because the country now has a moral decadence to negative exposure to technology and warped societal values. This has left the hopeless poor people to be used by warmongers and belligerents as mercenary fighters. What this means theoretically is that poverty and unemployment increase the number of people who are prepared to kill or be killed (suicide bombers) for a given course at token benefit. This explains why all the Boko Haram operations (most especially the executors of suicide bombing) that ever occurred in Nigeria have a large turnout of unemployed and illiterate people (including the under-aged) as fighters by the master minders and sponsors who are highly placed and influential´13. A plethora of articles reviewed have also pointed accusing hands at the government and the elites in the north east for negating the terms of the social contract 14. The Jonathan’s Ekpo, C. E. “The Application of Containment Strategy in Combating Terrorism: a Case of North Eastern Nigeria” A Bachelor of Arts Project Submitted to the Department of History and International Studies, University of Calabar – Calabar, (November, 2016). p.105. 12 Ogunboyede, K., “Terrorism and Democratic Governance in Nigeria” International Journal of Innovation and Scientific Research, (Vol.1, No.10, 2014). p.35&38. 13 Aleyomi, M. B., “Ethno-Religious Crisis as a Threat to the Stability of Nigeria’s Federalisma” Journal of Sustainable Development in Africa (Volume 14, No.3, 2012). p.134. 14 See Tella, C. M., “Insecurity in Northern Nigeria: Causes, Consequences and Resolutions” International Journal of Peace and Conflict Studies, (Vol.2, No.4, 2016).pp.28-32; Forest, J. J. F., Confronting the Terrorism of Boko Haram in Nigeria. (Florida: The JSOU Press, 2012).pp.31-44; Shuaibu, S. S. & Salleh, M. A., “Historical Evolution of Boko Haram in Nigeria: Causes and Solutions” International Conference on Empowering Islamic Civilization in the 21 st Century, (Issue 6-7, 2015).pp.221-224; Sulemana, M., “Centenary 11 15 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. administration had projected an estimated N4 trillion to be expended in tackling the foundational issues in the North East through the Presidential Initiative for the North East (PINE) which was expected to commence from 2015 over 202015. It is apparent that the PINE went down with the administration’s defeat in the 2015 presidential elections; a reality which has given succor to the exploration of an alternative. It was on the basis of the above that Senator Nyako scavenged for an alternative and an allencompassing approach which will not just return “fire for fire” but also address the foundational challenges which makes the northeast vulnerable and susceptible to unrest. Hard posture definitely can never secure sustainable peace. It can only suppress or restrict the militants’ ability to wreck havoc, not the will or intent to do so. This is to say that, violence can always be revisited when an opportunity present itself. More so, asymmetrical and irregular warfare adopted by the Boko Haram terror group is a message that no amount of force exclusively unleashed can put an end to insurgency in the region. For every militant killed, the socio-economic situation has made it that another five or more sympathizers are ready to replace the slain ‘hero’ for they have to axe their resources against a common enemy; that which is liable for their deplorable condition and that responsible for the slaughtering of their kith and kin. Senator Nyako, the architect of the NEDC bill has observed that: ´governments and other stakeholders have made admirable efforts in their bid to address the security challenges in the North East Zone of the Country. However, these interventions have not achieved their stated objectives of restoring peace, stability and prosperity to the zone. Hence, there exists a need to change our strategies and approach in order to create lasting peace within the zone16. Such a strategy would not be exclusively confrontational and of course will “foster a sustainable solution to the problem of insecurity and address the root causes of the insurgency in the North East as well”17. That is to say that the challenges of poverty, unemployment, illiteracy, perceived marginalization and feelings of rejection, inadequate infrastructural facilities, etc, would be taken care of. This is the structured, holistic and integrated approach that the NEDC Act seeks – hence, the philosophical basis for its establishment. PROJECTED IMPLICATIONS OF THE NEDC ON NIGERIA’S GRAND STRATEGY AGAINST INSURGENCY IN THE NORTH EAST Nigeria’s strategy against the Boko Haram Islamist fighters in the North East has been predictably linear – that based on the hard approach of persistent and consistent assault and sorties on troubled areas. Tactical maneuvers such as roadblocks, cordon and search, declaration and enforcement of state of emergency, curfew, mass arrest, direct confrontations, aerial bombardments, “jungle justice”, criminal, unethical and unprofessional acts, etc, have been deployed both against the militants and the “passersby”. Measure and reactions like of Failure? Boko Haram, Jihad and the Nigerian Reality” ARAS, (Vol.35, No.2, 2014).pp.78-80; Zumve, S., Ingyoroko, M. & Akuva, I. I., “Terrorism in Contemporary Nigeria: A Latent Function of Official Corruption and State Neglect” European Scientific Journal, (Vol.9, No.8, 2013).pp.136-138; Asfura-Heim, P. & McQuaid, J., “Diagnosing the Boko Haram Conflict: Grievances, Motivations, and Institutional Resilience in Northeast Nigeria”. CNA Analysis and Solution, (2014). pp.15-20. etc. 15 See the 1st Draft of “Presidential Initiative for North East: the PINE Long Term Economic Reconstruction and Development Plan, Initiatives, Strategies and Implementation Framework” (2015-2020). Available at https://www.humanitarianresponse.info/system/files/documents/files/pine-_the_north_east_err_plan_-_full__july_2015_2015_2020.pdf. Retrieved 31/08/2017. 16 Nyako, “North East Development Commission: p.5. 17 Nyako, “North East Development Commission: p.6. 16 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. these could have been inevitable and of course understandable at the early phase of the war for [i] the uprising was assumed to be a prototype of the ‘customary’ religious unrest that characterizes the northern region, hence, neutralizing its leader was conjectured to be a panacea [ii] the social rapport, understanding and support of some northern communities towards the terrorists’ cause could not be ascertained [iii] the level of threat, endurance and perseverance of the insurgents was perhaps downplayed and belittled [iv] how ingrained the philosophy of this group was to the northern communities it operated in was opaque [vii] the domestic and foreign sponsors of this cause was relegated by political speculations and conspiracy theories [viii] most importantly, the group had by 2009 embarked on treasonable acts such as carving out territories and forming a parallel government. Aptly put it, the Nigerian government could not for sure ascertain what it was at loggerheads with, the raison d’être of the group, its support base and the duration it was ready to endure. However, it has become clear that Nigeria is dealing with a hydra-headed monster of which exclusive force would not just be retrogressive but at antagonism with peace and stability which are the objectives the nation seek to achieve. Hence, the NEDC will bequeath the antiterrorism fight a new physiognomy in a grand strategy where the hard approach will be steadily complemented with soft approaches. That is to say, while the “stick” in the form of punishment is advanced the militants and territories and populations recaptured, the “carrot” in the form of socio-economic packages and government presence is unleashed on the freed territories. Also, attacks on terrorists henceforth, rather than being a haphazard one would become that based on coordinated dissections of theaters in bits with the sole motive of rounding an envisioned parameter. Upon every major victory (hard approach), the soft approach will be promptly cemented and this will be repercussive because “winning any counter-insurgency war is to win the hearts and minds of the civilian population”18. In this process, not just the problem of physical insecurity will be defeated but that of socioeconomic and this will help restore citizen’s commitments to their nation. By restoring the dignity of affected citizens, the root of insurgency is partially tackled. Also, the private sector will become an integral part in the counter-terrorism campaign through the Victim Support Fund which will go a long way at ameliorating the excruciating consequences of the conflict on affected populations. There has been such advancement of humanitarian munificence for populations in the IDP camps by private and supranational organizations such as the World Food Programme. Medicines, vaccines and medical equipment, have also been delivered through its United Nations Humanitarian Air Service; UNICEF, UNOCHR, the Red Cross, the Norwegian Refugee Council, the Lovatt Foundation, as well as Oxfam and the Australian government have made donations or pledges to help Nigeria’s displaced population19. More so, the United States Agency for International Development has donated $4.6 million to the Action Against Hunger non-governmental organization to fund two initiatives in Borno and Yobe; USAID has committed $24.8 million to its Emergency Food Security Program for Nigeria in fiscal year 2016, according to its website. The Dangote Foundation has pledged N2 billion to IDPs in Borno, of which it says it has redeemed N800 million20. There is also the WeCare4IDPs Initiative launched by the Union Bank with support from United Nations Office for the Coordination of Humanitarian Affairs, as a platform to harness support and donations from well-meaning Nigerians to a projected sum of $1.05 billion required to provide humanitarian support to 8.5 million people Nyako, “North East Development Commission: p.6. “Refugee in Crisis” SB Morgen (August 26, 2016) p.3. Available at http://sbmintel.com/wpcontent/uploads/2016/03/201608_IDP-camps.pdf 20 “Refugee in Crisis” SB Morgen, p.7. 18 19 17 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. in the North East by this year, 201721. The Victim Support Fund aside mining momentum and being a coordinating arm for, will further spur-up greater private/non-governmental participation in the demanding task of restoring the dignity of affected peoples in the insurgency ravaged areas. More so, the idea of dialogue and that of community policing and intelligence gathering will be accorded legal credence. The provision for the retraining of military personnel on the ethos of human rights illuminates the much anticipated structural change which would see an overhaul in tactics. Unwarranted and unrestrained attacks will be checkmated as plummeting on civilian populations in an attempt to deal with terrorist actors would become either less fancied or antiquated. To crown it all, the Nigerian government by welcoming the NEDC has come in terms with reality which is that the war against terror in the North East region is a protracted one and victory is not coming any soon. The NEDC offers an antidote, not just to the problem at hand, but to that which could have manifested in the future. The idea is defeat the terrorists’ ability and will to terrorize; defeating one without the other would be an anomaly. CONCLUSION/RECOMMENDATION There is no readily available instance on the annals of history where exclusive force has put an end to the menace of terrorism. The Zealots, for example, having been forcefully neutralized by the Roman forces rejuvenated about a thousand years later in the form of Irgun and pursued a similar objective22. That is to say that a cause worth surrendering one’s life for is that which has surpassed ‘ordinary’ aimless confrontation and is on the perpetuity of transcending the tangible to ideological and metaphysical realms. The role of a common nostalgia and historical cum socioeconomic and political environments to a great deal, determine how a particular radical ideology is conceived, embraced and acknowledged by the people of an infected community. In order words, ideas worth fighting and dying for are more often than not, a product of perceived deformities, contradictions or aberrations in the social, economic, political, spiritual, psychological, moral or ethical standards which galvanizes either a handful or majority support of the community in a microcosm. Whenever an idea gets so ingrained and indoctrinated that people stake their lives on it, it becomes wise and pertinent not to combat the idea and its receptacles exclusively but the root and foundation upon which such an idea depends for survival. For the fact that the Boko Haram group has against all odds, survived the onslaughts by the Nigerian troops to this day, it is empirical and in fact logical to surmise that exclusive force is, and has been unproductive, insidious and obviously retrogressive. Such concerns had led to the sponsorship of the NEDC bill by Senator Nyako and its ‘swift’ passage by the National Assembly. Upon assent, this Act will address the issues of indiscriminate employment of force, that of foundational faults and that of grievance settlements. The contradictions, which are amplified by propagandas of indoctrination, will be pulverized. The situation will be that of a blend in the necessary utilization of force and a maximum usage of palliatives, socioeconomic packages and government’s presence to notch a grand strategy which will curtail the arts, acts and need for terror as a means to an end. On the level of ideology, the NEDC will be quintessential of the government’s concern to the plights of its wretched citizens, hence, entice a spillover in the facets of restoration of loyalty, See details at the Initiative’s website (http://www.wecare4idps.org/about.html). Accessed 10/11/2017. See Chaliand, G. & Blin, A. (eds) The History of Terrorism from Antiquity to the Al Qaeda. (London: University of California Press, 2007). 21 22 18 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. patriotism, trust and legitimacy from the insurgent group to the state. The act of munificence to be unleashed on freed and less troubled areas will give the new grand strategy the amplitude to sit on the source of ignitions fanning the embers of irate and thus, reduce the pool of apologists to the terrorists’ cause. Proper implementation of the NEDC will bestow on the war in the North East, a new epoch, where lives of both the terrorists and innocents and valued, where welfare is prioritized, where victory on terror is accepted to be a long and perpetual process, where members of affected communities are accorded greater roles in the conflict resolution and management effort. It is a truism that an ideology is difficult to annihilate but with NEDC, apostles of violent ideologies in the North East region would successfully be isolated overtime, culminating in their subsequent frustration and suffocation. 19 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. CANONS OF INTERPRETATION; FROM LEX LATA TO LEX FERENDA By Caleb Adebayo ChMC LL.B (Obafemi Awolowo University) B.L. Legal practitioner at Wole Olanipekun and Co. [email protected] ABSTRACT One of the first things a law student is taught as an undergraduate is the canons of interpretation and their place in Nigerian jurisprudence. There is no gainsaying that it is an intricate part of legal practice and almost always the silent elephant in the room, because despite the fact that it is not expressly spelled out in the courtroom, both Bar and Bench are well seized of it. In this paper, I go a step further to juxtapose two dispensations of interpretation- the present and the future, drawing on lessons from the past, placing the argument against the pragmatic backdrop of extant commercial realities and examining it under the ultraviolet light of the theory of law as a tool for social re-engineering. In it, I trace the history and trends of statutory interpretation, and make an audacious proposition for courts, which I point out, is not a novel one. Keywords: Canons, Lex lata, Lex ferenda, Interpretation, Judiciary INTRODUCTION An immutable and long-standing duty of courts from the days of yore is to interpret law. As much as this is one of the most important functions of the judiciary anywhere in the world, this learned coterie has always been assailed with numerous challenges in choosing the ‘path of meaning’ to tow each time; in certain cases, precedents serving as useful anchors, and at other times, a resolute judicial flare founded on legal exposition and extant occurrences, to reinvent the wheel on a legal issue, to overhaul, redefine and re-design the status quo; a term that has come to be known as ‘judicial activism’. My curiosity is akin to the fleeting urge of a toddler to open the matchbox and tear it into tiny pieces in a quest to discover what makes the fire catch, or the keenness of a frequenter of theatres to see what lies behind the curtains and produces what is seen on the stage. It is this curiosity that has driven me to explore this topic and reconnoitre the undulating nature of judicial determination and the idiosyncrasies that have formed the crux, pith and heart of interpretation today. The realist school of thought1, notorious for its heydays between the 1920’s and the 1940’s, believes that statutes and legislations are merely guides, and what the law really is lies in the breast of the judge; the repertoire of justice, the hieroglyphist of the laws, the decipherer of encoded language of the legislature, and the determiner of how it should be applied. This is my self-imposed task in this brief treatise. It is also an attempt to look into the future, albeit only as far as can be deduced, and make recommendations perhaps for what happens behind the curtains before the real stage play. 1 A theory of law and legal reasoning that arose in the early decades of the twentieth century broadly characterized by the claim that law can be best understood by focusing on what judges actually do in deciding cases, rather than on what they say they are doing. (Shiner R. A, "Legal Realism," in Robert Audi, ed., The Cambridge Dictionary of Philosophy. New York: Cambridge University Press, 1995, pp. 425.) 20 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. CONTEXTUALISING TERMS In order to set the course for this extensive foray into this quintessential area of legal jurisprudence, it is expedient that I put the terms I have employed here in context. It is curious, almost ironic even, that I attempt to define the word ‘canon’ which in itself is a form, modus and medium of definition; a term that forms the gravamen of defining, interpreting and understanding terms; a coinage that speaks of methods and derivatives for interpreting words, phrases, sentences and essentially contextualising. Might I then say that I am making an attempt to contextualise the ‘contextualiser’? The word ‘canon’ has been defined as an accepted principle or rule; general law, rule, principle, or criterion by which something is judged2. Thus, the canons of interpretation are the rules, principles or criterion by which statutes are interpreted or construed. There is the common belief that no word holds a meaning in and of itself, and the verity of that proposition was revealed in trying to look up the meaning of the word ‘canon’. In doing that, I stumbled on six different meanings of this one word that meant six different things. That would have been a conundrum for me in the early stages of framing this work if I had no canon of my own for the context of the word which I was in need of. Canons of construction have been also defined as “the system of fundamental rules and maxims which are recognized as governing the construction of written instruments’3 The term ‘lex lata’ is a Latin conjecture, referring to ‘the present law’ or ‘the law as it exists’. In fact, it directly translates as ‘the law that has been borne’4 as opposed to ‘what it ought to be’. Lex ferenda on the other hand is a Latin phrase which translates as ‘what the law should be’ or ‘future law’5. In this phrase we see a certain foretelling, a portending and at the same time a proposition of a state of affairs that is presently not existent. Some authors have also defined the two terms as ‘law as it stands’ and ‘law in the discretion of the judge’ respectively6. We can then say that this discourse is exploring the rules, methods and criteria of interpretation employed in interpreting the law as it stands and the possibilities of the future law when innovative methods ‘in the discretion of the judge’ are employed for determining the definition and the scope of law. TRENDS IN STATUTORY INTERPRETATION IN AN ADVANCING WORLD A simple, yet profound illustration, tugs at my consciousness in this significant spiel. Imagine for a moment a 20th century law drafted by the legislature to address a hydra-headed problem. As decades progress, the problem evolves from a mere triangular complexity to a trapezoid and soon to a heptagon of a poser , a far cry from the three-sided imbroglio imagined at the time the law was made, even with all its attempt to prognosticate the future. Would a dependence wholly, strictly and unquestioned on the letter (textualism) or imagined intention (intentionalism) of the legislature at the time not then be a precarious channel to course? Would it not be necessary that the judiciary be doused and colored in the scintillating flavour and resplendence of interpretive open-mindedness, especially in a 21st century that is moving faster than time itself? 2 <http://www.encyclo.co.uk/meaning-of-Lex%20lata> Accessed 28 August 2017 at 5pm Watson B. A, Liberal Construction of CERCLA Under the Remedial Purpose Canon: Have Lower Courts Taken a Good Thing Too Far?, 20 HARV. ENVTL. L. REV. 199, 208 (1996) 4 <http://www.oxfordreference.com/view/10.1093/oi/authority.20110803100103408> Accessed 26 July 2017 at 5:20pm 5 <http://www.encyclo.co.uk/meaning-of-Lex%20ferenda> Accessed 28 August 2017 at 5: 20pm 6 Arajdrvi N., “Between Lex Lata and Lex Ferenda?” 15 Tilburg L. Rev. 163 2010-2011 Customary International (Criminal) Law and the Principle of Legality, 3 21 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. There is what appears to be a perceived evolution of the rules of statutory interpretation from a strict and literal approach to an approach in which context, purpose, broad considerations of legality and fairness have a role7. The trends in statutory interpretation are shifting from the traditional canons and circles to more open methods, keeping in mind that there is no unified, systematic approach for unlocking meaning in all cases. The techniques of statutory interpretation are evolving and have shifted from literal interpretation towards a contextual approach with regard, in appropriate circumstances, to the purpose of legislation.8 It is an accepted fact that words have no proper or specific meaning until they are put into a context of situation. A word may bear the meaning put upon it by the user or that put upon it by the recipient or the ordinary meaning.9 Thus Justice Holmes summed up the elusive nature of words, which lies at the heart of the many problems of legal interpretation when he posited that “A word is not a crystal, transparent and unchanged; it is the skin, a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.”10 Throughout the centuries we find in the reported cases instance after instance of the difficulties which arise when a judge has to try to discover the living thought lying beneath this skin of words set out in a document placed before him for interpretation.11 The world we live in today is an advancing one, a markedly different one from the world where the courts of Exchequer existed and the courts could construe their canons within the crucibles of the literal, golden and mischief rule of interpretation. Today’s world operates high-level contracts, electronically concluded negotiations, highly regulated industries with established rules of governance. International commercial contracts, for instance are governed by International customs and conventions, Arbitration clauses are governed by the International Chamber of Commerce or UNCITRAL Laws, extending the need for interpretation to closely knit circles of operation where the texts cannot be interpreted in the light of the age-long canons. While the relevance of these canons cannot be lost on any judicial system in the world, there is no gainsaying that courts too, are beginning to deviate from the bars and boundaries of these interpretive rules to adopt more open interpretations and definitions that are in tandem with a quickly advancing world. In order for us to understand the need for a steady advancement of our hallowed canons, we must understand the pathway that statutory interpretation has trod. We are haunted by a distant past of what has been coined ‘The administrative state’, where, as Rt. Hon. Lord Justice Sales, Lord Justice of the Court of Appeal in England and Wales, put it “Parliament and the agencies it created to address social problems understood them (the laws) better than the courts. The decisions to be made about how to tackle them involved major questions of resource allocation, which was the domain of Parliament, not the courts. The agencies were expert bodies tasked with their functions by Parliament, the ultimate lawgiver, and the courts were reluctant to intervene in their decisions”12 Geddes, R. S. "Purpose and Context in Statutory Interpretation’(2005)." Univ of New England LJ 2 Ed. pp 524. ; SEE Lonnquist, T. "The Trend Towards Purposive Statutory Interpretation: Human Rights At Stake." Revenue Law Journal 13.1 (2003): p.3 8 Krishna V. “The Modern Rule of Statutory Interpretation; Tax Views” The Bottom Line August 2013 pp. 23 9 <http://www.vanguardngr.com/2012/06/the-supreme-court-doctrine-in-the-interpretation-and-construction-ofstatutes-2/ > Accessed 28 August 2017 at 7pm 10 Towne v. Eisner, 245 U.S. 418, 38 S. Ct. 158, 62 L. Ed. 372 (1918). 11 Brett P., ‘The Theory of Interpreting Statutes’ in The Nature and Sources of Law 173-3. 12 Sales, P. "Modern Statutory Interpretation." Statute Law Review (2016): hmw041. 7 22 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The old style of interpretation persisted to at least the middle of the twentieth century. It was marked by a literalism, which placed great store on the dictionary meanings of words and the rules of grammar. There were many mechanical rules which went by Latin names: ejusdem generis, expressio unius, etc. Hand in hand with this literalism went a reluctance to go outside the four corners of the Law.13 By this method, statutes were construed in a way that the judges believed would do little damage to those statutes, even if such interpretation was in itself contrary to reasonableness and public good. The judges, in a manner of speaking, were gatekeepers for the exact letters of the law as reproduced in the statutes, indifferent about redefining the rules of interpretation and exploring the purpose and intent of the statues. However, in advocating for courts to adopt more context-based, purpose-driven and utilitarian approaches to statutory interpretation, I must highlight that I am not recommending, espousing or prescribing an outlandish ideology, because as Lord Wilberforce put it: “It is the function of the courts to say what the application of the words used to particular cases or individuals is to be. This power which has been devolved upon the judges from the earliest of times is an essential part of the constitutional process by which subjects are brought under the rule of law – as distinct from the rule of the King or the rule of Parliament; and it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say.”14 Thus, it is the duty, task and responsibility of the judiciary anywhere in the world to interpret the law with a view to going over and beyond the letters of the law or an interpretation that merely reproduces the letters in their quaint form, devoid of any spirit or life that can ensure the growth or transformation of law, because according to Roscoe Pound, former Dean of Harvard Law School in his Sociological Theory of Law, the law must progress as society progresses, because if it stays stagnant, then either society or the law is bound to fail. 15 I also fall in stride with Oliver Wendell Holmes, who was a candid advocate of the instrumentality of courts. In his 1897 essay in the Harvard Law Review, this is how he puts it: “In societies like ours, the command of the public force is intrusted to the judges…and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees”’ He believed, by the functional school theory, that the judges wield so much power that the law is really what they say it is. It is then pertinent, I would imagine, that the judiciary is committed to a forward-looking interpretive technique, because however careful drafting may be, no drafter can ever foresee and provide exactly for everything that is going to happen in the world of fact. Thus the drafters need a little help from the courts in making sure that the law works effectively. Many of our laws are obsolete and anachronistic and in a fast-paced world driven by technology, and swathed in the garb of the internet, the courts are the only hope of our laws catching up. Understanding that the process of amendment of statutes is an arduous process, and cannot be done every now and then, a failure of the judiciary to meet up with the demands of time will impede the development of law, and inevitably, the development of society. The courts thus have wide powers to adjust the meaning of statutes 13 Burrows, John. "The Changing Approach to the Interpretation of Statutes." Victoria U. Wellington L. Rev. 33 (2002): 561. 14 Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A/G [1975] AC 591, 629 (HL) Lord Wilberforce. 15 Pal, D. "Sociological Jurisprudence-Theory of Roscoe Pound." (2011).Available at SSRN: https://ssrn.com/abstract=1925790 or http://dx.doi.org/10.2139/ssrn.1925790 23 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. to reflect and embody not just values which the judges regard as important, but also which they think that the legislature should be taken to have thought were important, without needing to say so.16 Sir Ivor has described scheme and purpose as "the twin pillars of modern interpretation".17 Thus, in modern interpretation, the judiciary must examine the scheme of the law. Rupert Cross, in his book on Statutory Interpretation, puts it this way: “A statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force.”18 These postulations go simply to show that interpretation should be forward looking, examining the law and its meaning within the context of the present, and keeping in mind the possibilities of the future. The lex ferenda cannot be truly the law as it ought to be if its interpretive mien is overly careful of not going outside the imagined restrictions of the texts of the law. Sadly, sometimes, a probe into drafting history and legislative action, intentionalism and textualism, cannot provide the appropriate definition to the text of a statute weighing it in light of current phenomenon. Statutes are legal instructions transmitted into an existing, highly developed framework of legal values and expectations. The existing law, modes of reasoning, and established localized value systems should provide the interpretive context in which a statute is read.19 In fact, it has been expostulated that it is unhelpful in such a case "to inquire into the history of subjective views held by legislators from time to time."20 On one view, the courts are actually finding that the meaning of the statutory language has changed. Not all facets of interpretation can expressively and properly refer to the "Intention of the legislature". It is then clear how much significant input the judges have, even when they are applying the purposive. What I propose is a purposive interpretation beyond the postulation of the Heydon’s case. It is a purposive and contextual interpretation, set in our time and clime and having regard to the values, changing trends and geometrical rate of advancement of today’s society. If the legislature has failed to fix the statute, then the judiciary should do so. In other parts of the world, this is fast becoming the rule, rather than the exception. Allow me then to propose what Benjamin Raker calls ‘The remedial purpose canon of interpretation’. This simply seeks to provide the remedy that the statute set out or should have set out to solve all the while ensuring the purpose is not lost in the process. It examines contextually and otherwise and is a systematically forensic interpretive process that factors in current and future occurrences and expectations.21 Raker goes further to enthuse about it viz: “the remedial purposes canon’ broadly—as the general interpretative strategy of reading statutory language so as best to deal with the ‘evil’ that the law sought to address. That is not to say that said ‘evil’ is always clearly defined, which is especially true when the 16 The Black-Clawson Case, 1975 A.C. 591 (1975). Richardson, ILM. "Appellate Court Responsibilities and Tax Avoidance." Austl. Tax F. 2 (1985): 3. 18 Cross R. Statutory Interpretation, 3rd ed. (1995), pp. 51-52 19 Supra, note 10 20 R v K [2001] 3 All ER 897, 909 (HL) Lord Steyn. 21 Raker, B. "Reading Remedially: What Does King v. Burwell Teach Us about Modern Statutory Interpretation, and Can It Help Solve the Problems of CERCLA Sec. 113 (h)." Vand. L. Rev. 70 (2017): 1143. 17 24 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. interpretative task is to define the meaning of a specific provision in a deeply complex law. The broader the lens, the easier the ‘remedial purpose’ is to discern, and vice versa.” Am I then proposing that purposive interpretation should be used to alter the result of commercial transactions where the words of the act are clear and plain and where the legal and practical effect of the transaction is undisputed?22 Certainly not, and this is because it is not a substitute for the plain meaning of words. What I instead propose is a broader and more purposive lens of interpretation that factors in society, an advancing world and technology, because we cannot also deny that evolving technology does not present a unique problem for courts.23 Further lending credence to this point, we find that is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because it is not within its spirit, or within the intention of its makers.24 Saleshas gone on to explain the challenge of kind and proposition like this: “The text of the statute stands in the middle of a force field, subject to forces coming from different directions pressing on or bending its meaning. The courts therefore have to make sensitive evaluative judgments balancing the different elements and assessing their respective weights in light of broad background understandings in relation to the proper respective constitutional roles of Parliament and the courts. They aim to produce a statutory meaning which reflects the reasonable expectations of citizens and, in particular, the lawyers who advise them, who are inculcated in the relevant legal culture and trained in the way in which courts derive legal meaning from legislation…a sort of vector analysis, in which different considerations or vectors are brought into a relationship to produce a final composite, the resultant vector identified as the substantive norm to apply to the case in hand.”25 Two seasoned authors, Henry Hart and Albert Sacks urged that “every statute must be conclusively presumed to be a purposive act26 which should be interpreted “so as to carry out its purpose as best it can.”27 One would see that Hart and Sack’s theory tows the line of my contentions in this discourse. They offer a general theory of legal reasoning that has been coined as “reasoned elaboration”; the neutral discernment and application of the “principles and policies” that lie beneath “every statute and every doctrine of unwritten law” and, more generally, are embedded in the warp and woof of the law writ large28 CONCLUSION After all said and done, I am not unaware that after all said and done, judges still cannot override statute. They can simply interpret liberally or narrowly to achieve a desirable result as nothing authorizes a court to depart from the words of the statute and give them a meaning they are totally incapable of bearing29 but they must interpret audaciously, and with guts, realizing that the future –I daresay even the current state- of law, and the progress of society 22 Supra, at note 7 Barillas, Wilber A. "The Marvels of Modern Technology: Constitutional Rights, Technology, and Statutory Interpretation Collide in United States v. Chiaradio." BCJL & Soc. Just. 33 (2013): 1. 24 Church of Holy Trinity v. United States, 143 U.S. 457, 12 S. Ct. 511, 36 L. Ed. 226 (1892) at 458 25 Sales P., ‘Partnership and Challenge: the Courts’ Role in Managing the Integration of Rights and Democracy’ [2016] Public Law 456, 457. 26 Hart H. & Sacks AM., “The Legal Process: Basic Problems in The Making And Application Of Law” 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) 1124. 27 Ibid, at 1374 28 Ibid, 145-158 29 Supra, note 9 23 25 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. lies in their hands. In truth, there is no clear[ity] between where interpretation ends and judicial legislation begins. There always have been, and always will be, debates over whether a judge in a particular case has gone too far, whether it be through energetic pursuit of purpose or protection of the citizen's rights,30 but we must remember that what underpins a worthy judiciary anywhere in the world is its ability to think and act beyond the box created by another arm of government. We must look at the positive twist to this proposition I make on this rostrum today. It is that the more statutory meaning becomes open to influence by interpretive aids and values taken from outside the text of the legislation, the more important becomes the partnership between judges and lawyers and between courts and the legislature in participating in a common culture which both promotes predictability and stability of the meaning to be derived from statute and allows scope for evaluation and criticism by the legal profession and legal academia, form of discipline for judges in performing the task of interpretation.31 I propose, in the words of Rt. Hon. Lord Justice Sales again that there is a need to legitimize the courts’ modern approach to statutory interpretation and specify objective criteria to justify its extensive interpretation. In his words: “The courts need to have strategies in place and a defined and defensible legal methodology to protect against the accusation that they are illegitimately imposing their own idiosyncratic values in the interpretation of legislation, completely removed from any real democratic endorsement. If they cannot do this, then in the medium to long term, they will diminish public respect for their neutrality as impartial appliers of the law, which would itself undermine rule of law values”32 30 ibid See e.g. Llewellyn K., The Common Law Tradition: Deciding Appeals (Little, Brown & Co Boston 1960), esp. pp. 185–6; cf Simpson AWB ‘The Common Law and Legal Theory’ in Simpson AWB (ed), Oxford Essays in Jurisprudence (2nd series Oxford University Press Oxford 1973) 94 (‘…the common law…consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts. These ideas and practices exist only in the sense that they are accepted and acted upon within the legal profession…’). 32 Supra, note 10 31 26 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. INTEREST, DIFFIDENCE, RIGIDITY AND THE CHALLENGE CONSTITUTIONAL CHANGE – THE NIGERIA’S EXPERIENCE OF By Charles E. Ekpo University of Calabar – Nigeria History & Int’l Studies [email protected] ABSTRACT The base or foundation wielding every political entity is domiciled in either a physical or intangible accumulation of ordinances christened, “constitution”. The constitution is the bedrock of every polity for it defines the structure, system/form of government, laws and the domestic and external character of a state. Being the “mother of all laws”, amending or changing some of its strategic provisions more often than not, is always herculean and brings at loggerhead the profiteers of the “old order” and prospective beneficiaries of the envisaged “new order”. This paper discusses the theme of interest and diffidence in the antecedents of constitutional development in Nigeria; using same paradigm to analyze the present hurdles compounding genuine constitutional/structural change. Secondary evidences are used in supporting certain propositions. KEYWORDS: Constitution, Amendment, Interest, Restructuring, Diffidence and Rigidity. INTRODUCTION Man in the state of nature, argued Thomas Hobbes, was in a perpetual condition of war, of “every man against every man” due to the wildings in competition which led to diffidence in the continuous quest for glory. This milieu bred “continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish and short”1. It was in this melee that man was compelled to a consensus of adopting the Golden Rule “do not that to another; which thou wouldest not have done to thyself”2, and on that basis, established a sovereign authority with the mandate to enforcing this social agreement. From the above theory, it could be surmised that law is as old as the society and is thus a product of historical developments. The collection of laws into legal documents in time past has produced interesting ancient codes such as the Hammurabi Code, the Hittite Code, the Justinian Code, etc. upon which the basis of modern legal system is anchored. Constitution thus is a product of historical development where common values, principles and rules are accorded legitimacy. This position is supported by Riberi who posits that “values, principles and rules – acknowledged for many years of repetitive practices –, are indeed the making of a given constitution”3. Succinctly, a constitution in the modern sense could be said to be “a collection of principles according to which the powers of the government, the rights of the governed, and the 1 Hobbes, T., Leviathan, 155-156 Ctd. in Eyo, E; Udofia, C. & Edor, J. E; Introducing Philosophy of Peace and Conflict Revolution. (Calabar: Ultimate Index Books Publishers, 2011). p.28. 2 Hobbes, Leviathan, 155-156 Ctd. in Eyo, E; Udofia, C. & Edor, J. E; Introducing Philosophy of Peace and Conflict Revolution, p.28. 3 Riberi, P. “Uncertain Dilemma: Philosophical or Political Foundations for the Constitution?” In Riberi, P. & Lachmayer, K. (eds.) Philosophical or Political Foundation of Constitutional Law?. (Wien: Facultas Verlagsund Bachhandels AG, 2014). p.33. 27 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. relations between the two are adjusted”4. In the words of Aristotle, a constitution “must necessarily be that arrangement under which everyone might act in the best manner and live blessedly in evident”5. It could assume different forms, for as Strong observes, “the constitution may be a deliberate creation on paper; it may be found in one document which itself is altered or amended as time and growth demands; or it may be a bundle of separate laws given special authority as the laws of the constitution”6. As “the constitution is in fact the government”7 of every state, amending or changing it in a clime with equilibrium, or so, at the lever of political interest is always arduous and in most cases, unattainable without major quagmires. Instances are constitutional changes that were preceded by conundrums in Britain (1640s-1650s), USA (1780s & 1850s), France (1790s), Russia (1917), China (1940s) etcetera. In fact, Machiavelli had asserted that: ´there is nothing more difficult to handle, more doubtful of success, and more dangerous to carry through than initiating changes in a state’s constitution. The innovator makes enemies of all those who prospered under the old order, and only lukewarm support is forthcoming from those who would prosper under the new. Their support is lukewarm partly from fear of their adversaries, who have the existing laws on their side, and partly because men are generally incredulous, never really trusting new things unless they have tasted them by experience8.´ Machiavelli’s submission above aptly describes the climate of such innovation in Nigeria where ethno-religious diffidence had been, and is still a bane to the evolution of a constitution that meets Aristotle’s description above. In the next heading, I will discuss the theme of interest in the evolution of Nigeria’s constitution while dedicating the next to analyze the parody of interest and rigidity in the 1999 constitution with attention to present contradictions and the bottlenecks circumventing a conventional constitutional change. MANIFESTATION OF INTEREST AND DISTRUST IN PROCESS OF CONSTITUTIONAL DEVELOPMENTS IN NIGERIA The constitutional processes which culminated in the emergence of a united Nigerian polity established an interest precedence upon which further interests and distrusts reinvigorates. The Lugardian 1914 Constitution amalgamated the northern and the southern Nigeria not to forge unity among its peoples, but to concretize British economic interest. Lord Lugard, in his popular discourse The Dual Mandate in British Tropical Africa, contended that to avoid the certainty of friction, “increased cost of administration, obstacles to trade, [and] unnecessary accounting”, amalgamation was necessary. He further asserted that the north could not survive on its own and “in order to balance its budget, it will probably have to depend on grants from parliament, paid by British taxpayers”, whereas, the “coast [south] 4 Strong, C. F. A History of Modern Political Constitutions: An Introduction to the Comparative Study of their History and Existing Form. (New York: G. I. Putnam’s Sons, 1963). p.11. 5 Qtd in Murray, A. “Aristotle, the Good Life and a Good Constitution” A Paper Presented at the Biennial Conference in Philosophy, Religion and Culture, 2-3 October, 2004). p.1. 6 Strong, A History of Modern Political Constitutions, p.11. 7 Aristotle, Politics, 1278b 10-11, Qtd in Zarri, J. “Aristotle’s Definition of Citizen, State, Constitution, and Government. Scholardarity, (16 December, 2012). Available at http://www.scholardarity.com/?page_id=2564/ Accessed October 5, 2017. 8 Machiavelli, N. The Prince, Translated with Notes by George Bull (United Kingdom: Penguin Group, 1961). p.21. 28 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. government may have a surplus revenue”9. Therefore, the north “must either establish an inland fiscal frontier, or share the duties, collected by its neighbours”. More so, Lugard never placed a façade on his actual interest patterning to the “organization and control of railways, waterways and telegraph lines traversing both territories”10. Considering the fact that British colonial philosophy triumphed on the stratagem of “divide and rule”, it is glaring that interest was the basis for the 1914 Constitution. Amalgamating on the basis of revenue sharing than united polity, it is argued, implied that “the two halves of the country continued their separate existence” and the “dichotomy between the north and south remained and gave room for mutual suspicions”11. In an attempt to right the Lugard’s anomalies, the Sir Hugh Clifford Constitution of 1922 repudiated the superfluous Lugard’s Nigerian Council and set up a ‘nationwide’ Legislative and Executive Council. The Legislative Council had a total membership of 46. Of these 46, only 10 were Nigerians of which 4 (one from Calabar and three from Lagos) were elected. Thus, there was still a contradiction and clash of interest for as Okereka rightly observes, the Clifford Constitution “isolated the north from south since little attention was given to matters affecting the north”12. This was a classical instance of ‘good intentions go bad’ for Clifford had presumed it would be preposterous to make a central legislation which would cover the Muslim emirates and that the emirs would resent even nominal representation in that council. Sir Arthur Richard in December, 1944 published a proposal for a new constitution which the jurisdiction of the Legislative Council would cover the whole country. This Constitution which was to take effect in 1946 was vehemently campaigned against and rejected by Nigerians for it was perceived to be an imposition. Even some British officials in the northern region spoke ill of the constitution for to them, it did not address the variance between the north and the south hence, they suggested that the north should be separated from the south. The trepidation here, as observed by Sir Bernard Bourdilon, was “the inability of many of the northerners to speak English, their unfamiliarity with parliamentary procedures…[which] might lead to friction between them and the educated south”13. This meant a call for another constitution since this one could not accommodate all interests. Consequently, the buildup to the Sir John Macpherson’s Constitution of 1951 harbours the greatest manifestation of interest, fear and antagonism in the constitution development process in Nigeria. When consultations on the above regard was made, the East and West (due to their sophistication and educational advantage), demanded for a strong central government while the north for asymmetrical concerns craved for a federal government. In the January, 1950 Constitutional Conference in Ibadan, the north, if it must agree to central government (and for fears of southern dominance) demanded for half of the seats in the proposed House of Representatives; that revenue from taxation be shared to component regions on per capita basis; that the boundaries between the North and South should not be revised; that the idea of Cabinet government should be shelved in entirety; and threatened to revert to the 1914 order if not granted their demands. The East and West naturally opposed to 9 Lugard, F. D., The Dual Mandate in British Tropical Africa.(Edinburgh: Williams Blackwood and Sons, 1922). p.98. 10 Lugard, The Dual Mandate in British Tropical Africa, p.99. 11 Majuk, S. E., Essays on Nigerian History: from Earliest Times to the Present. (Port Harcourt: Labeka Publishers Ltd., 2004). p.103. 12 Okereka, O. O., “Evolution of Constitutional Government in Nigeria: Its Implementation and National Cohesion”. Global Journal of Political Science and Administration, (Vol.3, No.5, 2015). p.4. 13 Olusanya, G. O., “Constitutional Developments in Nigeria 1861-1960” In Obaro Ikime (ed) Groundwork of Nigerian History. (Ibadan: Heinemann Educational Books (Nigeria) Plc., 1980). p.527. 29 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. the North’s demands (especially that of half seats in the House). The East, again, were opposed to the idea of electoral college (favoured by the North); the creation of the House of Chiefs in the North and West; the division of the country into three regions (but rather into states according to ethnic divides); and the position that only Northern male (25 years) resident in the region for over 3 years should be eligible to stand election into the Northern Regional House of Assembly. The West rejected vehemently, the decision to remove Lagos from the Western Region. When the Constitution was presented in 1951, many regions were virulent. It granted a Central Legislature made of 148 members, of which 136 (68 from the North and 34 each from the East and the West) were to be elected from regional legislatives. Prominent voices of resentment against the Constitution included that of Chief Obafemi Awolowo and Dr. Nnamdi Azikiwe. The events and tensions of 1950 and 1951 ushered in a milieu of ethnic nationalism and culminated in the creation of ethnic and regional political parties14. The protruding frictions and conspicuous contradictions bred by the Macpherson’s Constitution created way for the introduction of the Oliver Lyttleton Constitution in 1954, with the hope of arresting some of the major issues. Unfortunately, the issues bordering the position of Lagos and Anthony Enahoro’s self-government motion and its aftermath were unresolved. The North had suspected and therefore, rejected the call for independence on a stipulated date for it thought it was not yet mature and insisted that Lagos be removed from the Western region and made autonomous for “some fears that its commercial interests might be jeopardized if Lagos was to remain in the Western region…To allay these fears and to ensure national unity, Lagos was established as an independent municipality” 15. When in 1958, the minority issues arose in the Nigerian constitutional deliberations, the Minority Commission was set up; it made recommendations in August 18, 1958 of which the National Council of Nigeria and Cameroon (NCNC) and the Northern Peoples’ Congress (NPC) but the Action Group (AG) accepted to put on hold in order not to jeopardize the envisaged independence. A state creation clause, with stringent conditions, was however, injected into the Independent Constitution of 1960. This was a terrible mistake which the 1963 Republic Constitution could not correct. Seemingly, ethnic tensions, interests and distrusts became the bane of the Independent and Republic Constitutions. When it appeared the structures in the parliament had been ingrained by an antagonizing region with conventional change surmised to be impossible, violence set in on the night of January 15, 1966. Retrospectively, it was perceived and assumed by all factions that the independent constitution ‘favoured’ the North, hence, any opportunity presented the South would be utilized in somersaulting the existing order. Thus, when the January 1966 conundrum propelled Lt. Gen. Aguyi Ironsi (a Southerner) to the realms of power, every of his moves were interpreted as attempts at outmaneuvering the North and establishing Southern dominance. It was not surprising that the attempt by Ironsi to ‘literally’ upturn the status quo through the Unification Decree (Decree No. 34 of 1966) amongst other things, led to the North’s fear of an ‘Igbo planet’, call for secession and a counter coup in July 29, 1966 which led to the restoration of the old order of northern dominance16. Olusanya, “Constitutional Developments in Nigeria 1861-1960” p.530-533. Olusanya, “Constitutional Developments in Nigeria 1861-1960” p.538. 16 See Siollun, M., Oil, Politics and Violence: Nigeria’s Military Coup Culture 1966-1976.(New York: Algora Publishing, 2009). Chapters 6, 8 & 9. 14 15 30 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The above structure persisted until Maj. Gen. Yakubu Gowon almost surrendered it in January, 1967 at Aburi, by accepting the terms of the Aburi Accord but was rebuked and called to order by the powers that be17. Henceforth, it never really mattered who ruled or what form of government was practiced as long as the interest of the North was protected – except on rare cases where for instance, Gen Babangida in 1988 warned the constitutional review committee against altering “agreed ingredients of Nigeria’s political order” 18. Even the 1999 Constitution as would be discussed, is perceived by factions to be that guised on vested interest. THE 1999 CONSTITUTION: INTEREST AND THE CHALLENGE OF STRUCTURAL CHANGE Few nations operate a rigid constitution and in most cases are climes where core interest and/or foundational ideology deserve legal protection. The British Constitution for instance, is so flexible, due the concordance in culture, race, religion, history, belief system and language. Unlike Britain, Nigeria is a reservoir of an avalanche of hitherto distinct sociocultural and political entities that are presently in a perpetual flux of bending the levers of political power to their favour. Flexibility of a constitution in such a climate becomes a mirage since interests must be ingrained and only rigidity offers an opportunity to inscribe and enshrine an impossible possibility. As discussed earlier, the issues of defining where and what is national wealth, the formula for distributing the defined wealth, the design and influence of existing superstructures, and a system generous enough to quote every quota, has been the ebb and in fact, most rigid components of legal receptacles in the Nigerian polity and is thought of by factions, to be baleful. Hence, there has been a plenitude of calls, movements, agitations and demands for a genuine national sovereign conference where grievances and contradictions nourishing the flames of discord can be sorted out and a new course chartered out. This is merely a euphemized representation of a call for constitutional change. What does the 1999 Nigerian Constitution has to say patterning to the above concern? To alter any provision of the Constitution, such proposal must be supported by “the votes of not less than two-thirds majority of all members of the House” and at least “two-thirds” of the Houses of Assembly of all States19. Attempts at altering the provisions of Section 8 (creation of new states, boundary adjustment, creation of new local government areas) is even more insuperable as it requires the “votes of not less than four-fifths majority of all members of each House” and two-thirds of all States’ House of Assembly20. This is to say that the 1999 Constitution had not incorporated provisions for any sovereign national conference neither had it recognized a change or amendment through referendum. In fact, for seven times, the word “referendum” is mentioned in the Constitution, it is to be exercised in the processes of state and local government creation and recall of serving lawmakers by members of their constituency from the National Assembly on vote of no confidence. Hence, the idea of sovereign national conference is made unconstitutional by the virtue of the dictates of the 1999 Constitution. It is on such premise that Senator Professor Osunbor concluded that “any See Siollun, Oil, Politics and Violence: Nigeria’s Military Coup Culture 1966-1976. Chapter 12. Siollun, M., Soldiers of Fortune: Nigerian Politics from Buhari to Babangida 1983-1993.(Abuja: Cassava Republic Press, 2013). pp.216-217. 19 See Part II, Section 9, Sub-Section 2 of the 1999 Constitution of the Federal Republic of Nigeria. 20 See Sub-Section 3 of Section 9. 17 18 31 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. attempt at subverting or overthrowing the current Constitution will amount to offense of treason”21. The above notwithstanding, critics of, and ‘losers’, in the current political order have depicted the Constitution as “fraudulent” for like the Arthur Richard’s scenario, was an imposition wittingly bequeathed them by Decree No. 24 of 1999. It is argued that the provision of the Constitution, most especially, the formula for the composition of the National Assembly and the responsibilities and relationship between the Federal and State Government has been designed to accommodate the fears and interest of the northern region. Citations are also made to the fact that politics of state creation by the military had made the northern region two states superior (plus Abuja) – a concomitant superiority in the National Assembly by the virtue of composition formula. Aspersions are thus cast on the architects of the 1999 Constitution. Nevertheless, the rigidity of the Constitution has sealed the fate of the existing order. The position of the 1999 Constitution notwithstanding, the former Nigerian President Olusegun Obasanjo (1999-2007) had between February and July, 2005, summoned a National Political Reform Conference to discuss ways in which the chequered past of the country can be unanimously remedied, with emphasis on a befitting political readjustments. The Conference like that organized by Gen. Babangida was handicapped by premeditated outcome which President Obasanjo had anticipated. He had ‘warned’ the participants to abstain from discussing ‘sacred’ provisions such as The oneness of Nigeria; federalism and federal system of government; presidentialism; multireligiousity; federal character; popular participation; the fundamental objectives and directive principles of state policy; and separation of powers. The Conference is free to strengthen, update and refine these in their recommendations; nothing should be done to undermine our national integrity and sovereignty or weaken our national cohesion. These areas constitute the bedrock of our unity, and political praxis22. With such delineations and provoking limitations, one cannot, but assume of the Conference to be the usual jamboree characterizing the post-colonial antics of reminding Nigerians of the necessary changes which for interest and diffidence would never be effected. To Nigerians, some of the “no-go-areas” were actually the anticipated areas for change, if not, Nigerians should decide. It was therefore not surprising that while the state-sponsored ‘drama’ was on stage, a parallel conference, the Pro-National Political Reform Conference Organization (PRONACO), led by characters like Wole Soyinka and Chief Enahoro, met and produced its own report. Whatsoever the PRONACO resolved was superfluous for it lacked the capacity to implement its recommendations. However, the implication was glaring; the Obasanjo led Conference failed to address the core demands of Nigerians by not opening up for discussions, the clauses which the masses craved to discuss most. The conference did nothing than remind Nigerians that the political structure was faulty, not of consensus and is actually a fiat which either needed popular ratification or repudiation. Again, President Goodluck Ebele Jonathan between March and July, 2014 convoked yet again, another constitutional conference where virtually everything was open for discussion but “the existence of Nigeria as an indissoluble nation”. Even before commencement of the Osunbor, O. A., “Constitution Amendment in Nigeria: Concept and Misconceptions”. A Paper Presentation to Students of the Faculty of Law, Ajayi Crowther University, Oyo, (January 31, 2017). p.3. 22 Ajayi, F. “The 2005 National Political Reform Conference – Nigeria’s Last Hope”. Nigeria World (Monday, March 14, 2005). Available at http://nigeriaworld.com/columnist/ajayi/031405.html. Retrieved 9/11/2017. 21 32 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. conference, some voices from the northern region had felt threatened and insecure, resolving to either boycott the conference or participate and quit when decisions or resolutions threatened its interest. Subsequently, the report of the conference was rejected by the Northern Reawakening Forum (NRF) for it did not “focus on how to rebuild the North and cater for those who have been displaced by terrorists…”23. Elsewhere, the chairman of the Northern Elder’s Forum Ango Abdullahi said the North rejected the conference report for the method which its participants were chosen was undemocratic24. With 492 participants of diverse interest and orientation, little hit could be punctured on the existing structure, yet, it remained another bacchanalia for the Jonathan administration failed to make moves at implementing the recommendations of the Conference until it was voted out in 2015. Utilized as a political tool and campaign theme during the 2015 presidential election, it was ‘nigerian’ that the President Buhari APC-led government ignore whatsoever was ‘good’ of the recommendations and bedevil that which ran at antagonism with his manifesto and party ideology. What is scintillating from the constitutional convention of President Obasanjo (2005) and President Jonathan (2014) is not their dissimilarities, but rather the motivating factor behind their convocation of such conferences. It appears it is apparent to the political class that the 1999 Constitution does not echo the minds of the people; yet, the rigidity of the system and ingrained distrust has made it virtually impossible for any outright change to be effected without accommodating the interests of all the factions. To start with, the 1999 Constitution does not recognize any sovereign national conference and does not offer any clause where the people’s consensus can outmaneuver the men at the upper and lower chambers of the National Assembly. President Jonathan appreciated this and subtly hoped that the National Assembly amends the 1999 Constitution with provisions for referendum in this regard to enhance the possible implementation of whatsoever recommendations that will emanate from the 2014 conference. In this case whereby the decisions or recommendations of supposed interest ridden ‘sovereign’ national conference has to be ratified and passed into law by an interest polluted National Assembly, it is certain that a genuine structural change might require more than an allure of a charade in the name national conference to materialize. Presently, prominent political and socio-cultural groups as well as eminent persons from the south (South West, South East and South South) are panting for devolution of powers and restructuring on the path of genuine federalism. On the contrary, heavyweight groups in the north and prominent stalwarts are ostensible on their utmost support of “one Nigeria” under the present structural arrangements. History of interest and diffidence is thus repeating itself but this time, in an opposite trajectory of demands. CONCLUDING REMARKS It is a truism that the Constitution “holds the key and provides the framework, legal and institutional, within which all other problems confronting our nation can be addressed and resolved”25 but interest and distrust have made the Nigerian Constitution fall below the precepts of Aristotelian standards of what a constitution stands for. For interest sake, major Daniel, S; Ndujihe, C. & Akinrefon, D. “Northern Leaders Reject Jonathan’s Confab Report” Vanguardngr (September 16, 2015). Available at https://www.vanguardngr.com/2015/09/northern-leaders-reject-jonathansconfab-report-2/. Retrieved 9/11/2017. 24 Odunsi, W. “Why North Rejected Jonathan’s National Conference Report” DailyPost (May 26, 2017). Available at http://dailypost.ng/2017/05/26/north-rejected-jonathan-national-conference-report-ango-abdullahi/. Retrieved 11/09/2017. 25 Osunbor, “Constitution Amendment in Nigeria: Concept and Misconceptions”. p.2. 23 33 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. issues are trivialized and wrapped in tissues and major needs are discussed as wants. Attempt at major structural change are frustrated and even the possibility of good radiance at structural evisceration of the virulent political order is handicapped by the assignees and gladiators of various asymmetrical interest factions, who as history indicates, had infiltrated the National Assembly since the 1950s. Professor Osunbor has again asserted that “Nigeria cannot under the current legal order, have a brand new constitution [since] a new constitution offer[s] a new republic unless the current legal order is overthrown by a revolutionary – military or civilians”26. The truth is, if a revolutionary from the military instigates a revolution aimed at upturning the present ‘popular’ order, such a revolution, history has warned, is doomed to fail. If against all odds a military revolutionary triumphs in such a putsch, he is likely to alter the existing order and as well enshrine a rigid structure at the expense of the profiteers of the previous order. This will naturally breed more tension, conundrums, greater distrust and antagonism; and as antecedents have demonstrated, invite sprees and series of putsches and counter-putsches. A peoples’ revolution on the other hand could birth a popular social order, minimize tension, but, is a threat to the continued existence of the country as a single polity – the impending question then is, which does Nigeria prefer? As the cries for restructuring along genuine federal line have become so clarion and has bred secession drums and sentiments, this work implores on the policymakers to perceive of the restructuring wave as a major contradiction and anti-thesis which must be accorded due attention to ensure that situations do not degenerate or escalate to unmanageable state. It could be healthy to revert to the 1963 constitutional framework or work a structure which will curb or at least mitigate the level of distrust and interest through separate development. Through separate development, the diversity of the nation can be fully utilized and its unity concretized. What Nigeria needs at this stage is not uniformity but unity. If it needs uniformity, it is not uniformity of culture, religion, state machinery, but uniformity of purpose; the purpose being the perpetual contributions, without any form of trepidation, to the overall development of the country. Separate development could be achieved through federalism or con-federalism. A federal structure with attention to minority question, aside curtailing tension and diffidence, will prune the attacks, attention and concentration at the central government to its lowest ebb. It will in fact address more than 50 percent of the structural problems compounding the nation. The big question however is, are the beneficiaries of the current order ready to facilitate the coveted change? The answer to this question would determine the trajectory of constitutional politics in Nigeria. 26 Osunbor, “Constitution Amendment in Nigeria: Concept and Misconceptions”.p.3. 34 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. DEATH PENALTY ON PREGNANT WOMEN; A DOUBLE JEOPARDY By Peter Anichebe Okakpu LL.B. (Nnamdi Azikiwe University), B.L. Associate, Safianu Saleh Gadau & Co. [email protected] ABSTRACT Before now, a pregnant woman was regarded as vulnerable and therefore belonged to the category of persons upon whom death penalty could not be pronounced. The exemption of a pregnant woman from death penalty is consistent with the jurisprudence that the forbearance of a sentence of death on her is for the benefit of the unborn child. However, this exemption has been eroded by Administration of Criminal Justice Act 2015 and other recent laws in Nigeria. This article therefore decries the said erosion in the face of a continued condemnation of death penalty as a form of punishment. The article is broadly divided into four parts; Introduction, Death Penalty; a Jeopardy, Death Penalty on Pregnant Women; a Double Jeopardy and Conclusion. The author considers the position of the law prior to the radical u-turn and concludes by recommending a reversal of the position to the status quo ante bellum and the adoption of a more proactive sentencing. KEYWORDS: Death penalty, Capital offence, Pregnant women, Nursing mother, Unborn child. INTRODUCTION Death penalty is the pronouncement of the sentence of death on an offender who has been declared guilty of a capital offence by a court of competent jurisdiction1. Death penalty is also referred to as a capital punishment2 in some instances. In Nigeria, generally, for a convict to attract the death penalty he/she must have committed a capital offence such as; treason, murder and armed robbery. However in the northern parts of the country, offences like culpable homicide, abetment of the suicide of a child or insane person, trial by ordeal which results in the death of another, giving or fabricating false evidence which results in the conviction and execution of an innocent person, adultery, sodomy, lesbianism and rape3 attract the death penalty. While in the southern parts of Nigeria, murder; treason; treachery; conspiracy to commit treason; instigating invasion of Nigeria; directing and controlling or presiding at an unlawful trial by ordeal which results in death4 attracts the death penalty. Kidnapping has also been added to the long list of capital Duru, O. W. C., “The Constitutionality of Death Penalty under Nigerian Law” <https://www.academia.edu/5185442/THE_CONSTITUTIONALITY_OF_DEATH_PENALTY_UNDER_NIG ERIA_LAW> accessed 25 July 2017 at 4:30 pm. 2 Thus, capital punishment was defined as ‘death imposed as a punishment for crime’ by O.W.C Duru. Ibid. 3 See Kano State Sharia Penal Code 2000 for example. 4 See Criminal Code. See alsoDuru, O. W. C., “The Constitutionality of Death Penalty under Nigerian Law” <https://www.academia.edu/5185442/THE_CONSTITUTIONALITY_OF_DEATH_PENALTY_UNDER_NIG ERIA_LAW> accessed 25 July 2017 at 4:30 pm. See also Akingbehin G., “Nigeria: Capitalisation of Kidnapping Offence – Matters Arising” <https://allafrica.com/stories/201701160789.html> accessed 28 July 2017 at 3:50 pm 1 35 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. offences by Abia, Imo, Akwa Ibom, Anambra, Ebonyi, Enugu, Edo and Lagos States of Nigeria.5 In Nigeria, death penalty is a constitutionally permissible form of punishment by virtue of Sections 33(1) and 34(1)(a)of the Constitution of the Federal Republic of Nigeria (CFRN) 1999(as amended)6. This has remained the position notwithstanding the fact that there has been and there is still an ongoing heated argument between the abolitionist and ‘retentionist’ schools of thought on death penalty. Be that as it may, the fact that the laws in place, both domestically and internationally7 prohibit the proclamation of death sentence on pregnant women is a clear indication that pregnant women are exempted from it. Therefore, it becomes quite surprising that despite all these, the Administration of Criminal Justice Act 2015 extended this penalty to the pregnant woman not minding her vulnerable position. DEATH PENALTY: A JEOPARDY Death penalty is condemnable. It is inhuman and degrading no matter the offence it is pronounced to punish.8 This is because it involves by its very nature, a denial of the convicted person’s humanity. It is degrading because it stripes the convicted person of all dignity and treats him or her as an object to be eliminated by the state9. Right from the moment he enters the condemned cell to the point of execution, the prisoner is enmeshed in a dehumanizing environment of near hopelessness. He remains in the cell as a place of preservation of his life so that the same life will be taken away. He practically lives each day in morbid fear. Each time a fellow prisoner is taken away to be executed, there is renewed anxiety, but he must live each day under this menacing shadow of death10. According to Okpara Okpara; ‘The death penalty is abhorrent to civilized sentiments. It is both an inhuman and a degrading punishment that denies a person his status as a human being and it is in conflict with the right to human dignity. It is inhuman to terminate human life by killing. The fact that it is inflicted as a punishment for crime does not make it less so. Death is a denial of a person’s humanity because it destroys his very existence, with all the rights inherent in human existence, including the right to relief where conviction and sentence have been wrongfully imposed. The process of carrying out a death sentence with the untenable long wait between the imposition of sentence and the actual infliction of death is often degrading and brutalizing to the human spirit as to constitute psychological torture.’11 Similarly, Professor Ben Nwabueze strongly condemned death penalty when he said as follows; Akingbehin G., “Nigeria: Capitalisation of Kidnapping Offence – Matters Arising” <https://allafrica.com/stories/201701160789.html> accessed 28 July 2017 at 3:50 pm 6 SeeOkoro v. State (1998) 14 NWLR 584. 7 Criminal Procedure Act (now repealed by the ACJA), Criminal Procedure Code, African Women’s Protocol (see Article 4 (2) (j)) and the International Covenant on Civil and Political Rights (ICCPR). 8 Iyaniwura W., “The Death Penalty-A Negation of the Right to Life”, Global Journal of Human Social Science: Economics, Vol. 14 (2014), p. 2. 9 Ibid, pp 2-3. 10 Ibid, p. 3. 11 Okpara O., Human Rights: Law & Practice in Nigeria, 1st Ed.,(Enugu: Chenglo Ltd., 2005), p 127. 5 36 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. ‘It is inhuman to terminate human existence by killing and the fact that it is inflicted as a punishment for crime does not make it any less so. If it is not inhuman and even if some method of making it completely painless could be devised, it is still degrading and therefore a violation of the constitutional prohibition against degrading treatment’.12 The positions of the above two legal luminaries are factual and the author belongs to the same school of thought. Death penalty is undeniably against the essence of humanity as it gives man power to take the life of another legally and unperturbed. Death penalty is an ancient method of dealing with capital offences and therefore has proven to be ineffective in the present dispensation. It is a barbarous survival technique from a less enlightened and unrefined age; it is incongruous and incompatible with our present standard of civilization and humanity13 Why should a man or woman who has been found guilty of committing capital offence be sentenced to death? Would we not rather keep him within the restricted walls of the prison till he lives out his life on earth and attempt reforming him? Why would we take life we cannot give? If it is true that one cannot give what one does not have then it should also follow by the parity of reasoning, that one should not deprive an individual of life one cannot provide. Death penalty sins most by depriving the culprit of his chances of reformation. One of the most proactive ways of destroying crime is by reforming the man who is a criminal. To destroy his bodily life is nothing but a preposterous blunder.14 Those who argue in favour of death penalty may posit that solution to certain crimes is the killing of the perpetrator of such crimes. They are of the firm view that execution is deemed to be a retribution for an evil deed; by killing the offender, society shows its condemnation of the former’s crime.15 They also argue that killing someone who committed a crime will deter others from committing that same crime. On the contrary, it has been established that despite centuries of experience with death penalty and many scientific studies16of the relationship between the penalty and crime rates, there is no convincing evidence that it is uniquely able to protect society from crime or to meet the demands of justice. In fact, in many ways death penalty does the opposite. For instance, Professor A.A. Adeyemi, who compared statistics on murders and executions between 1967 and 1985, found that “murder incidents have consistently increased during most of this period”. The learned Professor also found that between 1967 and 1970,an average of 994 armed robberies were committed each year but that the annual average rose to 1500 between 1971 and 1985 owing to the executions which took place during the period. He 12 Nwabueze B. O., The Presidential Constitution of Nigeria, 1st Ed.,(London: C. Hurst & Co., 1981), p 411. Anwo J. O. and Arowolo G. A., “Critical Analysis of Abolition of Death Penalty in International Law: An Analysis of Death Penalty under the United States and Nigerian Laws” <https://www.ajol.info/index.php/naujilj/article/view/82408/72563> accessed July 29 2017 at 1:56 pm 14 Ibid. 15 Iyaniwura W., “The Death Penalty-A Negation of the Right to Life”, Vol. 14 (2014), Global Journal of Human Social Science: Economics, p. 6. 16 A Japanese prison psychiatrist studied one hundred and forty five convicted murderers between 1955 and 1957. He could find none who remembered thinking they might be sentenced to death before committing the crime. “Despite their knowledge of the existence of the death “penalty” the prisoners have been incapable, because of their impulsions and their inability to live except in the present, of being exhibited by the thought of the capital punishment. See Sadakata K., “Etude criminolgique et psycho-pathologique de condames a mort ou aux travaux forces a perpetuite. After 35 years in the prison Medical Service, a British Doctor found that “Deterrence is by no means simple affair that some people think….A high proportion of murderers are so tensed up at the time of their crime as to be impervious to the consequences to themselves, others manage to persuade themselves that they can get away with it”. See Roper W.E., “Murderers in custody” in the hanging question, 1 st Ed., (London, Louis Blom-Cooper Duckworth, 1969), pg. 103 13 37 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. concluded that the studies in Nigeria “have demonstrated clearly that no efficacy can be shown for the operation of the death penalty” for murder and armed robbery in Nigeria17. Anwo J. O. and Arowolo G. A. put it aptly when they opined that `Punishment is supposed to be for the protection of society, and for the reformation of the wrongdoer. It purports to protect society by preventing the same criminals from repeating their crimes, and by acting as a deterrent to other prospective criminals. Capital punishment is a notorious failure in these respects. It does indeed remove the particular culprit from the possibility of repeating his crime; but this is of very small account in view of the fact that murder is seldom a career of repeated acts, but consists of single acts perpetrated by different individuals. The man whom we remove from the scene, therefore, is not the man who, if suffered to live, would have been likely to endanger our safety´18. DEATH PENALTY ON PREGNANT WOMEN: A DOUBLE JEOPARDY Prior to the coming into effect of Administration of Criminal Justice Act (ACJA) 2015, one of the laws guiding death sentence on pregnant women was Section 221 of the Child’s Right Act19. It provides thus; 2) No expectant mother or nursing mother shall be subjected to the death penalty or have the death penalty recorded against her. 3) A court shall, on sentencing an expectant or a nursing mother, consider the imposition of a non‐institutional sentence as an alternative measure to imprisonment. 4) Where institutional sentence is mandatory or desirable, an expectant or a nursing mother shall be committed to and be held or detained at a Special Mothers Centre. Note that the above provision did not only make it imperative that death penalty must not be recorded against a pregnant woman or nursing mother, it also went ahead to suggest an alternative sentence. Also, in Section 271 (3) of the Criminal Procedure Code20, an alternative to pronouncing death penalty on pregnant women was suggested by the draftsman thus, ‘Where under the provisions of subsection (2) it is proved affirmatively to the satisfaction of the Court that the woman is pregnant, the court shall find accordingly and shall pass upon her a sentence of imprisonment for life.’21 The provisions of section 221 (2) of the Child’s Right Act is consistent with Article 6(5) of the International Covenant on Civil and Political Rights (ICCPR)22, a Covenant which Nigeria is a signatory to but has not ratified, which provides as follows: ‘Sentence of death Adeyemi A. A.,“Death Penalty; Criminological Perspectives the Nigerian Situation” in the Death penalty pg. 489-494. 17 18 Anwo J. O. and Arowolo G. A., op cit. Cap C50 LFN 2004. 20 Cap C42 LFN 2004. 21 A similar provision ought to have been found in the subsections of Section 376 of the Criminal Procedure Act which is imparimateriawith Section 271 of the Criminal Procedure Code. What does it matter anyway, has the Criminal Procedure Act not been repealed by Section 493 of the ACJA? 22 999 UNTS 171 (1976), Adopted by the General Assembly of the United Nations on 19 th December 1966. Aimed at abolishing death penalty as a form of criminal punishment. 19 38 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women’. However, upon the coming into effect of the Administration of Criminal Justice Act (ACJA) the position of the law in Nigeria as regards death penalty on pregnant women changed radically. This is so because the provision of Section 415 of the ACJA is a negative and contemptible version of Section 271 of the CPC. The Section shamefully provides thus; 1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, the court shall, before sentence is passed on her, determine the question whether or not she is pregnant. 2) The question whether the woman is pregnant or not shall be determined by the court on such evidence as may be presented to the court by the woman or on her behalf or by the prosecutor. 3) Where in proceedings under this section, the court finds the woman in question is not pregnant the court shall pronounce sentence of death upon her. 4) Where in proceedings under this section, the court finds the woman in question to be pregnant the court shall sentence her to death subject to the provision of Section 404 of this Act. Now, the Section 404 referred to provides that ‘Where a woman found guilty of a capital offence is pregnant, the sentence of death shall be passed on her but its execution shall be suspended until the baby is delivered and weaned.’ It is in light of the foregoing that writer finds it difficult to concur with E. O. Akingbehin, Ph.D when he opined that ‘the penal laws of some African states embrace the approach in the ICCPR in which the death sentence, if imposed cannot be executed on a pregnant woman.’23 With due respect to the learned Doctor of Laws, the ICCPR could not have given the impression that its approach is to impose but not execute death penalty on pregnant women. This stand is gleaned from a holistic look at the provisions of Article 6 of the ICCPR which states that death penalty should be abolished and went ahead to categorically state in subsection 5 that death penalty must not be imposed on pregnant women. It therefore cannot be assumed to have turned around to say that death penalty maybe imposed but suspended as the learned Doctor has posited. The provisions of Section 404 of the ACJA amounts to punishing the unborn child for the sins of his/her mother. In fact, as aptly put by Bob Osamor, it means setting the teeth of the child on edge because the mother has eaten sour grapes.24 It translates to putting more motherless children in foster homes and/or streets. Laws are meant to be dynamically progressive. Regrettably, the ACJA failed woefully in this regard. Death penalty simpliciter is a jeopardy. Death penalty on pregnant women is much more a gross jeopardy. It is a double jeopardy! Not just because it affects the whole life of the child to be born and of course fouls his idea of the government and state but also because it is a development in the wrong direction. Akingbehin, E. O.,“Exemption of the Vulnerables from Capital Punishment in Nigeria”, British Journal of Arts and Social Sciences, Vol.7 No. I (2012), p. 56. 24 Osamor B., Fundamentals of Criminal Procedure Law in Nigeria.1st Ed., (Lagos, Dee – Sage Nigerian Publishers, 2004) p. 386. 23 39 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Who do we expect to take care of the child whose mother was killed by the state? How do we think that the child would see the government who deprived him or her of the care only a mother can give when he or she grows up? This is a serious legal cum societal issue. CONCLUSION This article has strived to explain what death penalty is and condemned same because it is inhuman and degrading. The author tried to show that death penalty is ipso facto a jeopardy and death penalty on pregnant women a double jeopardy. This article has revealed that death penalty on pregnant is repugnant to sense of humanity of both the expectant mother and the baby. The article, further, reveals that the laws in existence before the coming of the ACJA represent a condonable position. However, the new position brought into force by the ACJA was described with the strongest adjective to be negative by the author. The provisions of the ACJA with respect to death penalty on pregnant women especially Section 404 of the ACJA is downright heinous, despicable and an embarrassing provision to be found on the pages of a law enacted by the National Assembly of our great nation and signed into law by a President who has an Attorney General and Minister of Justice in his cabinet. Let us assume that the reason the ACJA departed from the previously obtainable position of the law was to cure the mischief of pregnant women escaping punishment by the mere fact that they are pregnant, bearing in mind, that the relevant time in question is the time of conviction or execution25. Irrespective of how marvelous the intentions of the legislators are, the undeniable fact still remains that death penalty on pregnant women is inhuman because it is a denial of the humanity of the expectant mother. It is degrading because it stripes, not just the nursing mother but also her newly born baby, of all their dignity and treats the mother as an object to be eliminated by the state. It is disheartening to make a pregnant woman live each day knowing that her life is preserved so that she would be executed once she put to bed. It is despicable to expect a nursing mother to wake up each morning to the reality that upon weaning her newly born child she would be denied the joys of motherhood. It is heartless to encourage or put a mother under a condition to raise her tender child under the menacing shadow of her own imminent death. It is not worth it! Following from the foregoing and bearing in mind that the jurisprudence behind punishment is to reform the criminal and not to eliminate him, the following recommendations are suggested: 1. Sections 415 and 404 should be expunged from the ACJA as soon as possible. If not for anything, to save the society, which the criminal justice system by its punishments aims at protecting, from the menace of having more motherless babies and also to save the face of this great nation. 2. The legislators have two options after removing the offensive sections thus; a. They should either allow sentence of life imprisonment to replace death penalty as seen in Section 271 (3) of the CPC or more preferably, b. They should adopt the provision of Section 221(3) of the Child Right Act. 25 Akingbehin, E. O., art cit.,. p57. It is also the writer’s view that the question of who actually impregnated the convict while she was in the prison may have influenced the legislators to change law for the worse. 40 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. INJUSTICE SURROUNDING THE POSITION OF THE NIGERIAN CRIMINAL LAW ON EXTRA-JUDICIAL CONFESSIONS By Tolulope A. Olatunji Esq. LL.M (Ibadan) LL.B. (Ado-Ekiti), B.L. Legal practitioner at Tunde and Adisa Legal Practitioners INTRODUCTION Under the English criminal law akin to the position in Nigeria, it has long been established as a positive rule that “no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority or by oppression.”26 By virtue of Section 29 (1) and (2) of the Evidence Act 2011, a confessional Statement is a statement by a suspect or an accused person charged with an offence stating that he committed the offence. A confessional statement cannot be used against an accused person unless the court is satisfied that it is voluntary. Where a confessional statement is made voluntarily by an accused person, such accused person should ordinarily enter a guilty plea and a conviction based solely on the confession will not be set aside on appeal. 27 THE LAW ON CONFESSIONS Confessions are either judicial or extra-judicial. Judicial confessions are the confessions made in court in the course of the proceeding in question whilst extra-judicial confessions are those made otherwise than in the course of the proceedings in question.28 The law as we know it is as stated by Akpata, J.S.C. in Matthew OkeOnwumere V. State29that: ‘In most cases, a free and voluntary extra-judicial confession provides the most satisfactory evidence of guilt. It attracts invariably the highest credit because it is presumed to be prompted by the strongest sense of guilt. The presumption, which is generally accepted, is that a rational being will not make admissions prejudicial to his interest and safety if the facts confessed are not true’ The veracity or reliability of any confessional statement depends on its voluntariness. The dictum of Akpata, J.S.C will be very apt for judicial confessions which are not as common as extra-judicial confessions. The reality in practice however is that, the police come to court with a statement of the accused person as an extra-judicial confession. A curious question however is, upon being arrested and taken to the police station, did the suspect straight up on admission into the police custody, on his free will, ask for pen and paper to commence his confession forthwith? Or upon interrogation or questioning, he started confessing immediately out of pure moral conscientious adjuration without any external appeal or command? In R. v Rennie,30Lord Lane L.C.J., made a very important observation thus: 26 H. M. Malek, et. al. 2005 Phipson on Evidence, 16th ed. (London, Sweet & Maxwell), p.1059 Ogudo v. State (2011) 202 LRCN 8; Yusufu v. State (1976) 6 SC 167; Achabua v. State (1976) NSCC 74 28 A. Babalola. et. al 2001Law and Practice of Evidence in Nigeria, Ibadan, Sibon Books Limited. 61 29 [1991] 1 N.S.C.C 606 AT 616 Lines 32 – 37 30 [1982] 1 W.L.R. 64, CA. 27 41 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. ‘Very few confessions are inspired solely by remorse. Often the motives of an accused person are mixed and include a hope that an early admission might lead to an earlier release or a lighter sentence. If it were the law that the mere presence of such motive, even if prompted by something said or done by a person in authority, led inexorably to the exclusion of a confession, nearly every confession would be rendered inadmissible.’ It is on such premise as the observation of Lord Lane L.C.J. supra that jurisdictions such as New Zealand31 and Australia32 operate a less technical version of the voluntariness test. 33 In the real sense of it, extremely few confessions are voluntary. The good thing however is that confessions are not the only way to prove a criminal charge. The law is settled that the commission of crime may be proved by: a. Confessional statement or evidence of the accused, b. Direct or eye witness evidence of a person who saw the incident, and/or c. Circumstantial evidence.34 As stated earlier, the police come to court with a confessional statement and as often as they do, the accused person either retract the statement or challenge its voluntariness. In the former the statement is admitted as part of the prosecution’s evidence while in the later, the court conducts a trial within trail to test its voluntariness. Very often in a trial within trial, except the accused can prove actual physical injuries occasioned by the police while forcing a confession out of him, or the involuntariness of the statement is apparent ex-facie, the confessional statement is likely to be admitted except it is bedevilled by some other legal deficiencies. Once the confession is in, the weight on the prosecution is practically lifted as such confessional statement is sufficient to ground a conviction. Niki Tobi, J.S.C, in Mustapha Mohammed v. State35 held that: “Once there exists a confessional statement which is direct, cogent and unequivocal to the fact that the appellants murdered the deceased, the prosecution need not prove any of the three elements or all the three elements.” It is true and settled that confessional statements are usually the best means by which criminal cases are established. A conviction for any crime may be based on a single confession if voluntarily made.36 LIMITATIONS OF BASING CASE ON CONFESSIONAL STATEMENTS There are some benefits to a confession both to the state and the victim of the crime. The prosecution and the court are saved the stress and time that would go into proving the guilt of the accused beyond reasonable doubt and also to the victim, there is an ease or closure that comes with the assailant being repentant or coming to terms with the consequences of his actions. The flip side of the coin however is that this means is seen as a short cut to a conviction. In a nutshell, it is a notorious fact that the police find it more convenient to pin the crime on a suspect in their custody and often fail to conduct any “investigation”. Worst, they ignore vital leads or even witnesses once there is a suspect in their custody. Uwais, CJN 31 Sinclair v. R. (1947) 73 C.L.R. 316, Murphy v. R (1989) 167 C.L.R. 94. R. v. Cooney [1994] 1 N.Z.L.R. 38. In R. v Steel, [2003] EWCA Crim 1640, the appellant adduced new evidence of his vulnerability to suggestion by reason of low intelligence which raised doubts as to the voluntariness of his confession. Such evidence will be regarded as an afterthought in a Nigerian Court. See also 1R. v King [2002] 2 Cr. App.R. 391. 33 H. M. Malek, et. al. supra 1060 34 Emeka v. State [2001] 14 NWLR (Pt. 734) 666; Mohammed v. State [1997] 11 NWLR (Pt. 528) 339; Appeal No: CA/I/59A/2011: SaheedBalogun v. The State. Delivered on Friday the 31st of October, 2014 35 Suit No. SC. 184/2006 of 20th April, 2007 36 Gira v. State (1996) 4 SCNJ 94. 32 42 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. censured this lukewarm approach to crime investigation by the police in Aigbadion v. State37, where his Lordship in very strong language held as follows: ‘It is pertinent to mention that the investigation of this case by the police, that is PW1, leaves much to be desired. The accused said in his statement Exhibit A that his co-tenant helped him together with the taxi driver to carry the deceased to the taxi. Attempt to trace the co-tenant was half-heartedly carried out. The mother of the so-called co-tenant stayed in the same house as the appellant and she said that the ‘co-tenant’ lived elsewhere and used to visit her only. No further effort was made by the police to trace him. Again, the appellant mentioned Johnbull in the same statement. No serious investigation about this was conducted to find out if he existed; and if so, whether he issued patient’s registration card to the appellant. It seems also the appellant was not asked by the police to produce the card which he said was issued to him by Johnbull, if at all. The taxi driver concerned could have been traced too by the police officer to confirm if deceased was alive when she was put in his car but no evidence was given if this was done. All these are necessary steps which ought to have been taken if the prosecution were to prove their case against the appellant beyond reasonable doubt. In other words, the investigation of the case was shoddy and incomplete. Any defence put up by an accused person whatsoever whether stupid or spurious must be investigated thoroughly in other to render it false or unlikely. It is when this happens that the trial court will be able to reject it.’ This author’s grouse here is that, the law that says that once there is a confessional statement, the prosecution need not or may not prove the offence has led to gross abuse and injustice. Typically, instead of conducting a proper investigation, the suspect is induced to confessing to the crime whether he did it or not. When no investigation is conducted or such investigation is done shoddily, whatever the police comes to say in court is very likely to be mere hearsay. If all or the major evidence that the prosecution puts before the court is just a confessional statement and the Investigative Police Officer (IPO) cannot put forward valuable evidence independent of the confession, the prosecution’s case is exposed to certain dangers that could render a trial on such confession futile. This humble contention gains judicial endorsement in the case of Maiyaki V. State38where Bulkachuwa, JCA (as he then was, now the PCA) held as follows: A close look at the testimonies of the PW1 and PW2 shows that they were testifying as the investigating police officers who came into the matter after the death of the deceased or the commission of the offence. All they did in investigating the matter was to visit the scene, and recover the 3 empty shells of ammunition at the scene, register same, as exhibits and record the statement of the appellant and witnesses. PW2 in effect recorded a confessional statement of the appellant (exhibit C) and had it endorsed by a superior officer ASP YusaiDalma and arraigned the appellant before the court on 31/8/2004. The testimonies of the two witnesses particularly under cross examination are hearsay based on what they recorded in the statements of the appellant.” (Emphasis Supplied) Several criminal cases are lost or upturned on appeal basically because the prosecution fails to call vital witnesses or conduct proper investigation but instead focuses solely on obtaining a confession from the accused person. The court is Queen v. Obiasa & Ors39admonished that, “The police has the duty to test the truth of the facts stated in a confession as far as they can, 37 (2000) 7 NWLR (PT 666) 686 at 700 paras D - F (2008) 3 NWLR (PT 1075) 429 at 449 B – D. See also Aigbadion V State (2000) 7 NWLR (PT 666) 686 at 39 (1962) N.S.C.C 412 at 416 line 7 38 43 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. they should not rest satisfied when it is made”. Typical however, the reverse is often the case. Once the confessional statement fails either at the trial or same is expunged on appeal, the prosecution’s case will lose its fulcrum where no proper investigation is conducted to seek out vital information, witnesses and other evidence. Such was the case in Appeal No: CA/I/59A/2011: Saheed Balogun v. The State, delivered by the Court of Appeal of Nigeria, Ibadan Judicial Division on Friday the 31st of October, 2014.40At page 41 of the judgment in this appeal, My Lord Haruna Simon Tsammani J.C.A who read the lead judgment referred to the IPOs as follows: ´The PW6 and PW7 are police officers who merely participated in the recording of the statements of the Appellant and his co-accused.´ The learned justice while restating a submission of the appellant’s counsel stated at page 24 of the judgment that: ‘‘Learned counsel began by dismissing the testimonies of PW6 and PW7 as being of no probative value. That the PW7 did not carry out any other investigation other than recording the statement of the Appellant and conducting a search in the house of the Appellant; and which search did not yield any incriminating evidence against the Appellant. That the PW6 is on the same pedestal as the PW7, as the only other role he (PW6) played was to visit the scene of crime which did not also yield any evidence detrimental to the Appellant.” The gist of the appeal is that the appellant and his case mate were arraigned, tried and convicted by the High Court of Oyo state on a four count charge of conspiracy to commit armed robbery, and the commission of armed robbery. The appellant and his case mates were caught in the neighbourhood where the crime earlier occurred, late in the night by some vigilantes. The evidence placed before the court were the testimonies of the vigilantes, the victims of the armed robbery and the all mighty confessional statements of the appellant and his case mates. Despite the number of witnesses called by the prosecution (7 seven witnesses), it was concluded by the Court of Appeal that the only piece of evidence that could ground a conviction was the confessional statement of the appellant. This is so because the police failed to carry out any meaningful investigation but instead the major thing they did was to obtain statements. From the appeal it was revealed that the police failed to conduct a proper identification parade which was necessary because the accused persons were not caught in the act and none of the victims knew the accused before the incident. The prosecution in their undue reliance on the confessional statement made a huge blonder which the trial court fell for but later led to the discharge and acquittal of the appellant. All the witnesses called gave no direct evidence linking the appellant to the robbery incidence. Thus, the prosecution’s eggs were in one basket which was the confessional statement. The statements were recorded with the help of an interpreter as it was on record that the appellant could not speak or understand English while the IPO could not speak or understand Yoruba which was the language of the appellant. The law is settled that the interpreter between the 40 See also Appeal No: CA/I/59B/2011: AdeoyeAliu v. The State. Delivered on the 18th day of June, 2014 and Appeal No: CA/I/59/2011: Kamorudeen Adebayo v. The State. Delivered on the 31st day of October, 2014 44 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. recorder and the accused person must be called as a witness. In Federal Republic of Nigeria v. Usman41 Rhodes-Vivour J.S.C put it in proper perspective thus: “I must do some explanation. The police officer detailed or directed to obtain a statement from the accused person may not understand the language spoken by the accused person, and so the services of an interpreter is needed. The interpreter acts as an interpreter between the police officer and the accused person. The interpreter understands the language spoken by the accused person and the English Language. He speaks to the accused person in the accused person’s local dialect and tells the police officer in English exactly what the accused person said. The police officer records it in English and that is the statement of the accused person. Usually the statement is recorded in the local dialect with English translation and both documents are admissible in evidence as the statement of the accused person. Before these documents are admissible in evidence the police officer who recorded the statement and the interpreter must testify in court. This is vital testimony. In the court the interpreter is expected to tell the court the questions he asked the accused person on behalf of the police officer and the response given by the accused person. It is only when this is properly done that it can be said that the truth of the statement has been established. The court would have no difficulty concluding that the statement is a correct reproduction of what the accused person told the interpreter. When the purpose for a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in court. The statement is hearsay and inadmissible if the interpreter does not testify in court.” (Emphasis supplied) As posited above, the rationale for the need to call the interpreter in founded on good grounds and such failure to do so is fatal to the case of the prosecution. In Saheed’s case, the confessional statements were admitted by the trial court in evidence and the court relied on them heavily in coming to its decision to convict him. Same was however expunged by the Court of Appeal as the law is settled that the court cannot rely or act on legally inadmissible evidence. Sankey, J.C.A observed in Oladipo v. Moba Local Government Authority42as follows: ‘Ideally, where inadmissible evidence is tendered, it is the duty of the opposite party or his counsel to object immediately. However, if he fails to do so, the trial court in civil cases may, and in criminal cases must, reject such evidence ex propriomotu. Where evidence is by law inadmissible in any event, it ought never to be acted upon by any court, (whether of first instance or of appeal), and it is immaterial that its admission in evidence was as a result of consent of the opposite party or that party’s default in failing to make objection at the proper time. Neither a trial court nor any of the parties has the power to admit a document that is in no way or circumstance admissible in law.’ Once the confessional statement was expunged, the prosecution’s case lost its pivot and thus collapsed totally. Therein lies one of the dangers of abandoning investigation and focusing only on obtaining a confession by all means. (2012) 8 NWLR (PT 1301), 141 AT 159/160 PARAS D – A; See also Shivero v. State [1976] NSCC 197 at 201 lines 20-35, Nwaeze V. State [1996] NWLR (Pt. 428) 1 at 20 G-H, Rex V Ogbuewu(1949) WACA 483 and Rex V Gidado (1940) 6 WACA 60 AT 62 42 [2010] 5 NWLR (Pt. 1186) 117 at 163 Paras A-C. See also: Alao v. Akano [2005] 11 NWLR (PT.935)160 AT 175, Etim&Ors v. Ekpe&Anor [1983] 14 NSCC 86 and Agagu v. Dawodu [1990] 7 NWLR (Pt. 160) 56 at 69 para D 41 45 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The courts have made strides in the effort to ensure due caution before convicting an accused person on a confessional statement. The Nigerian Supreme Court in Nwaebonyi v. State43 observed as follows: ‘In Rex v. Sykes (1913) 8 CR. Appl Rpt. 233 the leading authority on the weight to be attached to a confessional statement whether or not retracted, followed by the West African Court of Appeal in Kanu v. The King (1952) 14 WACA 30 and thereafter by this Court in several of its decisions such as, Dawa v. The State (1980) 8-11 sc 236; The Queen v. Obiasa(1962) 1 All NLR 651 1 SCNLR 137; Obosi v. The State (1965) NMLR 129 and Onochie v. The Republic (1966) NMLR 307 to mention but a few, the following rules were stated in order to decide the weight to be attached to it- 1.Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts, true as far as they can be tested? 4. Was the prisoner one who had the opportunity of committing the murder (offence)? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved?’ This prescription of the law is laudable and if properly observed, no superior court is likely to interfere with the decision of the trial court. What often happen however is that the trial court looks at the confession like the trial judge in Saheed Balogun v. The State (supra). The trial Judge in his consideration of the confessional statement credited to Saheed observed as follows: “I have also noted that apart from details about the robberies many of the facts contained in the said statements are facts that can only be within the personal knowledge of the accused persons. For instance, the details about their family background, their education etc. which were confirmed by them under cross-examination.”44 What the learned Judge inferred in essence is that, if the details about an accused person’s family background, education and personal details are confirmed during cross-examination the details of the offence(s) must also be true. This line of reasoning is flawed in several ways, the chief flaw however is that the details of the family background and education of an accused person are not limited to his personal knowledge as he did not fall from the sky. His family members may visit him at the police station after his arrest and the police could have easily obtained these information from them. Likewise, the police could have demanded this information from the accused person and to be frank, in the face of torture, such an accused person is not in the position to deny the police any information they might have asked for whether true or false. In circumstances where the accused was not caught in the act and there is no eye witness to testify directly; for a confessional statement to meet the standard of the rules laid down in Rex v. Sykes,45 the police must have done their homework by investigating the content of such confessional statement. Look for evidence outside the statement to corroborate the fact that the accused person committed the offence. One of the major causes of delay in criminal trials in Nigeria is the trial within trial proceeding conducted to test the voluntariness or otherwise of a confessional statement. Conducting the trial within trial does not, however, in any way make it certain that such 43 [1994] 5 NWLR (PT. 343) 138 AT 150, PARAS B-H. See also: Akpa V. State [2007] 2 NWLR (1019) 500 AT 527, PARAS F-H; Gabriel V. State [2010] 6 NWLR (1190) 280 AT 326, PARAS, A-D; Usman V. State [2010] 6 NWLR (1191) 454 AT 469-471, PARAS H-A; Rabiu V. State [2010] 10 NWLR (1201) 127 AT 160161, PARAS H-E 44 45 Culled page 63, lines 13 to 16 of the record of appeal in that case. (1913) 8 CR. Appl Rpt. 233 referred to in Nwaebonyi v. State supra 46 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. statement was made voluntarily and once the court sees it as voluntary and same has no admissibility issues, the court will rely on it. Sections 27 to 32 of the moribund Evidence Act of 1945 dealt with confessions and confessional statements. There are however some adjustments to the provisions as contained in sections 28 to 32 of the Evidence Act 2011 which now governs confessions and confessional statements. Section 29 of the 2011 Act basically provides for the means by which the prosecution must not obtain a confession and also places a burden on the prosecution to prove beyond reasonable doubt that the confession was not obtained by those means. Although redacted, the law still remains that confessions will only be admissible if same is voluntary. The reality in practice is however the contrary. In a trial-within-trial, a proper consideration of the kind of evidence required from the accused person tilts the burden more in favour of the prosecution and to the disadvantage of the accused. INADEQUACIES OF EVIDENCE ACT 2011 ON CONFESSIONAL STATEMENTS The Evidence Act fails to provide for the nature of evidence that will establish beyond reasonable doubt that the confession was voluntary. Once the prosecution comes with a piece of paper containing a purported confession, such evidence is presumed credible and except same is discredited under cross-examination by the accused person’s counsel,46 the burden is automatically shifted to the accused person to establish by evidence that the statement was not voluntary. Not all torture leave permanent marks and for an accused person that might not take the stands until after 4 years, time must have healed the wound but to the accused person’s disadvantage. Bottom line, except counsel can discredit the prosecution witness that came to tender the purported confession, proving that a confessional statement is not voluntary might be hard if not impossible. Evidence of physical brutality or errors on the face of the statement might be the way out but the police also get better with each statement obtained by always improving ways of covering up illegalities involved in the process of obtaining such statements. This is the 21st century and almost everyone uses a device with a camera on it or an audio recorder. The question is how hard can it be to put a confession on audio or video record? And how easy will it be for the prosecution and the court to hear or watch an accused person with his or her mouth confess to a crime? Lagos State led a trail in criminal justice reform in Nigeria towards effective administration by its Criminal Justice Administration Law 200747 (CJA 2007). Section 9(3) requires that making and taking of confessional statement should be recorded on video and in the absence of a video facility, the said statement shall be in writing in the presence of a legal practitioner chosen by the person arrested. This provision serves the end of reducing the common practice of law enforcement authorities to use brute force and torture to obtain information from suspects. The issue here is, with the position of case laws on confessional statements, what becomes of statements obtained in total disregard of this provision of the law in Lagos state? Will such statement be rendered inadmissible or will it only affect the weight to be attached Often some of these accused persons’ counsel are court appointed or simply provided for the accused, not necessarily a lawyer of the accused person’s choosing and who might not be experienced or competent enough to cross-examine an IPO that can be referred to as a “professional witness”. 47 Which was amended in 2011 and is now referred to as the Administration of Criminal Justice Law 2011. The law replaces the Criminal Procedure Law of Lagos State, 2004. 46 47 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. to such statements? According to Olasupo Sasore SAN, in a paper titled “Role of Police in Lagos Criminal Justice Law Reforms”,48 “Arguably any statement taken without complying with the provisions of the law is rendered illegal and should not be relied on by any court.” (Emphasis supplied) This reform though a bold and forward looking step at ensuring the protection of the rights of an accused person and in general enhance criminal justice administration particularly in Lagos State, there is still a long road ahead of us. “Access to Justice”49 with the support of DFID50 funded J4A51 Programme conducted a three (3) months research, from May 2013 to July 2013, to ascertain the level of awareness, compliance, implementation and enforcement of the Administration of Criminal Justice Law. The research revealed that after six years from the time the reform changes were first enacted into law in 2007, and two years after the amendments of 2011, the push for reform in Lagos State and the goals and outcomes envisaged by the enactment have not been achieved.52 In its public presentation of findings of a field survey conducted on the state of compliance with Administration of Criminal Justice Law, Access to Justice stated as follows: The provisions relating to the taking of confessional statements of suspects have remained grossly ignored by the police and enforced by magistrates. Besides safeguarding the constitutional rights of suspects, these provisions could also have eased concerns over the voluntariness of confessional statements and reduce the frequency of attacks on those statements. Virtually all those interviewed – police officers, prison inmates and lawyers were all nearly unanimous in saying that police officers do not make video recordings when obtaining statements from arrested persons, neither do they alternatively make sure that a lawyer is present first before embarking on an interrogation or obtaining a statement from the arrested person.53 It was concluded that the reform by Lagos state has not changed the landscape of criminal justice administration has there has been close to zero implementation of the reforms. Issues with the police and the way they procure evidence from a suspect is not peculiar to the Nigerian police. Some other jurisdictions have however evolved to fully implement the provisions prescribed in section 9(3) of the ACJ; even in those jurisdictions, there still exist a measure of distrust between the police and the citizen they are meant to protect.54 48 Retrieved on the 20th of December, 2014 form www.nigerianlawguru.com Access to Justice (“A2Justice”) is a justice advocacy group with offices in Lagos and Abuja, Nigeria. Visit accesstojustice-ng.org 50 Department for International Development; a United Kingdom government department responsible for administering foreign aid. 51 Justice for All (J4A) is a partnership between the Nigerian government and the DFID. It is a programme funded by the DFID which supports Nigerian led reform of the justice sector. Visit www.j4a-nigeria.org/ 52 See Dibia L, (Director of Programmes, Access to Justice) in a public presentation titled Report of a Field Survey on the State of Compliance with the Administration of Criminal Justice Law by Police and Magistrate Courts delivered on the 3rd of December, 2013 at a training workshop by Access to Justice in collaboration with Ministry of Justice, Lagos State, on the ACJ Law for Magistrates and Police officers. Access on the 29 th of December, 2014 at accesstojustice-ng.org 53 Ibid 54 For example in the United States of America the recent cases of the deaths Michael Brown and Eric Garner in the hands of the police has sparked protests in Ferguson, New York and across America 49 48 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. When evidence obtained by the police turns out inadmissible for being involuntary and the police fail to conduct proper investigation to gain evidence independent of a confession, the likely consequences are that the prosecution might fail, the best interests of victims is not served in form of closure and it undermines public confidence in the police. Two key issues to be pointed out are that; first it is not the duty of the prosecution to obtain a conviction by all means,55 but the prosecution must do a thorough job in ensuring that justice is done to the state, the society and the victim of a crime.56 Second, in ensuring that justice is done, the prosecution must also be mindful of the fact that a suspect or an accused is not guilty until his guilt is proved by legally admissible evidence thus the suspect/accused is still a citizen with rights that must be respected and thus must not be coerced into making a confession.57 Though it is basic learning in law that proof should not be beyond all shadows of doubt, this author is of the view that the prosecution should be required to demonstrate by ‘real’ evidence and not mere words, the process and means by which they came about a confessional statement especially when same is retracted or labelled involuntary by the accused. In Nasiru v. State58Uwais, C.J.N. (as he then was) posited on the extent of the use of an extrajudicial statement to the case of the prosecution when he stated thus: “When the statement was tendered and admitted in evidence by the prosecution, it was to simply prove that the statement was taken from the accused- see Sanusi v. State (1984) 10 S.C. 166 at p. 199 where Oputa, J.S.C. stated thus: “In Subramanian v. Public Prosecutor (1956) 1 WLR 965 1 WLR 965 at 970 the necessary distinction was drawn between tendering an accused person’s statement as proof of the truth of its contents. It is my humble view that when the prosecution tenders the statement of an accused person they tender same only as proof (of the fact) that a statement was made, and not as proof of the truth of its contents.” The accused could have raised the contents of the statement to a higher pedestal had it been he chose to testify at the trial admitting that he made the statement and standing by it, but this the accused did not do.” CONCLUSION Thinking on the position of the law above, in juxtaposition with the law that an accused person can be convicted solely on a confessional statement, this writer is of the view that where there are no other cogent evidence to corroborate a statement other than the content of the statement itself, and the accused person, retracts or alleges that the statement was 55 Oforlette V. State [2010] FWLR (Pt 12) 2081 at page 2099; Omopupa V. State (2006) All FWLR (Pt 445) 1648 56 See the dictum of Oputa, J.S.C. in Godwin Josiah v. The State [1985] 1 NWLR (Pt. 1) 125; see also Uniben v. K.T. Org. Ltd. [2007] 14 NWLR (1055) 441 57 Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria 58 [1999] 2 NWLR (589) 87 at 99, paras F-H. In Sanusi v. The State [1984] 15 N.S.C.C. 659 at 661 paras 41 -50 referred to by Uwais C.J.N. supra, Oputa, J.S.C. stated the law that: “The police during their investigation into any criminal offence usually obtain statements from accused persons. These statements are usually also tendered by the investigating police officer who recorded the statement as part of the prosecution’s case. The question now is- At that stage what is the statement being tendered as? A review of the authorities will confirm that at best the prosecution will tender the statement of an accused person as a Res- as something that investigating police officer obtained during his investigation. It is open to the court to consider that statement (along with other available evidence) accepting or rejecting it before coming to a decision.” 49 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. involuntary, the prosecution should be required to prove by ‘real’ evidence the means and process of obtaining the statement. This is the best way to establish voluntariness or otherwise. The police will never come to court to say that they tortured an accused person or that the accused was pressured to making a statement. Even if it is a blatant lie, visible enough for the blind to see, the police will state that the statement was voluntarily made by the accused. When records are however kept not just by pen and paper but by videos and audios and tendered in evidence, the court is at a better position to determine the means and process of obtaining the statement without much stress and in the end the voluntariness or otherwise of such statement can be settled to a greater extent. On the 13th of May, 2015, the Administration of Criminal Justice Act was signed into law. The Act was enacted “to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of rights and interests of the suspect, the defendant, and the victim.”59 Section 17 of the Administration of Criminal Justice Act made provisions concerning the process of taking a statement of an accused person and by subsection 2 of the section, “Such statement may be taken in the presence of a legal practitioner of his choice, or where he has no legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria of an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice....” This provision of Section 17 of the Act which is the only provision in the Act that touches on the process of obtaining the statement of a suspect has very little value and I dare say adds nothing to the state of our laws on the subject of obtaining extrajudicial statements. The law used the word “may” to qualify the need to have a witness present during the making of the statement. This means the provision can be dispensed with freely as it is not mandatory. Second, the law makes no provision for video or audio recording of such confession and thus the law falls short in its quest to protect the rights and interests of the suspect, the defendant, and the victim. Compared to the provision of Section 9 (3) the Lagos State Criminal Justice Administration Law, Section 17 of the Administration of Criminal Justice Act is very weak and as earlier stated, adds nothing to the administration of criminal justice. Though as earlier stated, Lagos state pioneered the process of incorporating the very important requirement of video recording the accused person’s statement, or in the alternative, the presence of counsel during the process of recording such statement, the law faces serious challenges in implementation. One major setback also is the fact that the law that governs evidence in Nigeria, which is the Evidence Act, 2011 does not make provision for any such requirement. There is a serious need to amend the Evidence Act by enacting the provisions of Section 9 (3) the Lagos State Criminal Justice Administration Law in it. The Lagos State Criminal Justice Administration Law is only applicable to the State Courts in Lagos state and this major limitation of the law vis a vis the position in the Evidence Act affects its veracity. To make these requirements applicable to all courts, provision should be made for video/audio recording of an accused 59 Section 1(1) Administration of Criminal Justice Act, 2015 50 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. person’s statement and the presence of a lawyer once an accused person asks that his lawyer be present while he/she is giving the statement. Further, as we know it, the Magistrate courts and other courts that are not courts of record but with jurisdiction to entertain criminal matters are allowed to deviate from the provisions of the Evidence Act, in view of this, states of the federation should be encouraged to improve on their Criminal/Penal Procedure Laws by incorporating this positive change. As we have it now practically all the High Courts of the states of the federation now operate the new Civil Procedure Rules which started in Lagos State in 2004. The same Lagos state has also started another noble idea in criminal procedure which must be encouraged towards a just society. 51 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. DOCTRINE OF OUSTER CLAUSES, A LEGITIMATE MOCKERY TO OUR RULE OF LAW; A CALL FOR JUDICIAL ACTIVISM By Okeh Isaac Mmaduabuchi LL.B. (Ebonyi State University), B.L. Legal practitioner at Lasun Sanusi, SAN & Co. [email protected] ABSTRACT This article seeks to x-ray the malady that has bedevilled Nigeria’s nascent democracy and indeed rule of law, in a bid to make its leaders carry out their duties with minimal legal distractions. The article focuses on some ouster clauses as may be found in the 1999 Constitution of Nigeria (as amended) and how successive leaders have abused it hence, the author believes that Nigerian leaders will be more responsible if these privileges are curtailed minimally as they currently have no utilitarian value in Nigeria. Furthermore, the author examines how in certain cases, the judiciary have waded in to salvage situations and to keep our rule of law alive KEY WORDS: Doctrine of ouster clauses, Rule of law, Democracy, Legitimacy, Abuse of Power INTRODUCTION The fact that Nigeria professes to practice rule of law under her constitutional democracy and at the same time, copiously retained ouster clauses in her constitution is a paradox. This is because, ideally, rule of law and ouster clauses are mutually exclusive; they are two parallel lines that should never meet. However, where a rule of law is forced to intercourse or blend with ouster clauses as is the case in Nigeria, it certainly would give rise to a mockery of the rule of law because ouster clauses presuppose that certain people especially of political echelon are legally treated better or more privileged than the rest of others even when it is a general notion that the law is not a respecter of persons. One can safely say that with ouster clauses available in our corpus juris, law is a respecter of persons unless we want to be stingy with the truth. It is against this backdrop that the author seeks to x-ray ills of ouster clauses in the polity which has done more harm than good to Nigerians; and to canvass reasons why it should be abrogated from our laws. The author lends his full support to judicial activism, as the only viable option to attaining our dream society, that is impervious to corruption and where rule of law reigns supreme. CONCEPTUALIZATION Brief explanations on the two key concepts herein contained – Ouster clause and Rule of law are necessary, as follows: i. Ouster clause: Legally speaking, an ouster clause is a term which can be used to describe a situation whereby a body which otherwise had powers to act in a particular capacity is stripped of the power by a statute, rule or practice. It is commonly used to describe a situation where the 52 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. judicial powers of the court to settle disputes between parties are utterly or to a degree, eroded or limited; however, as we would see, ouster clauses do not apply to the judiciary alone. It also applies to the legislature and the executive. Nevertheless, in this article, ouster clauses will be focally dealt with in the light of an erosion of judicial powers while cursory allusions may also be made to the erosion of the powers of other arms of government where necessary. In a simple term, an ouster clause is a clog that precludes the court from assuming jurisdiction over a matter and denies an aggrieved party the right to legal remedy thereby. It is a common law doctrine that operates to inhibit or utterly prevent the court from performing their duties of dispute resolution which is their primary function. It is a flagrant erosion of the court’s authority and a derogation of the fundamental right of access to court. It is a violation of the fundamental right to fair hearing by an impartial arbiter.1 Oputa JSC (of blessed memory) defined it as: “Ouster of jurisdiction is thus a condition which exist when a court which once had a jurisdiction over a matter ceases to retain that jurisdiction”2 ii. Rule of law: On the other hand, rule of law is a concept that entreats the government to justify every of their actions in law. It does not permit that whatever is officially done is law but that whatever is done officially must be in accordance with the law. 3 Rule of law is a legal principle and posits that law should govern a nation as opposed to being governed by decisions of individual government officials which could be vagarious. It implies that every citizen is subject to law including the lawmakers themselves. In Gouriet v Union of Post Office Workers, Lord Denning MR stated thus: “To every subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: Be you never so high, the law is above you”4 Also, John Locke opined thus: “…Freedom of people under government is to be under no restraint apart from standing rules to live by, that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will and in all things that the law has not prohibited and (2) not to be subject to the inconstant, uncertain and unknown, arbitrary wills of others”5 Again, Aristotle opined that the rulership of law is preferable to man’s and he who asks law to rule asks of God’s intelligence; human rulership brings in a wild beast, for human passions are like wild beast and strong feelings lead astray rules even if they be the very best of men.6 In modern government, rule of law is the barometer with which a civilisation and constitutional democracy may be measured; success or failure of a given government largely 1 Fawehinmi Gani., Ouster of Court Jurisdiction in Nigeria, 1914 to 2003 Volume One: Analysis of Statutory Provisions (Lagos: Nigerian Law Publications Ltd., 2004) p.1. 2 A.G Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552 at 567 3 Per Herring CJ in Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 137 at 166 4 (1977) 1 QB 729 at 761-762 5 Locke, John. Two Treaties on Government: A Translation into Modern English. ISR/Google Books, 2013 p.117. Ebook ISBN 9780906321690 available at [WWW document] URL https://en.m.wikipedia.org/wiki/Rule_of_law#cite_ref-4 (accessed on 4 August, 2017 at 4:40pm) 6 Aristotle Politics vol III p.16 culled from Igwenyi B.O., Modern Constitutional Law in Nigeria infra 53 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. depends on how well or bad the government has kept faith in observing rule of law in the polity. Rule of law connotes inter alia that: i. That government business should be conducted within the framework of recognized rules and principles to avoid dictatorial tendencies. ii. The equality of all citizens before the law so that each citizen has equal right to be protected by the law and at the same time, has equal right to resist any infraction into his person and or interest.7 There are myriads of ouster clauses scattered in our many copious corpus juris.8 In this article, although references may be made to other legislations where necessary, we shall nonetheless primarily circumscribe our self only to some of the ouster clauses that may be found in the 1999 Constitution of Nigeria (as amended) hereinafter referred to as “constitutional ouster clause (s)”. This is especially because this article is coming at a time when constitutional amendment is in process. Also, in discussing rule of law, more attention shall be paid to number “ii” connotations of rule of law above. DOCTRINE OF OUSTER CLAUSES, A LEGITIMATE MOCKERY TO OUR RULE OF LAW A keen look into the provisions of the 1999 Constitution of Nigeria (as amended) herein after referred to as “the constitution” would reveal that there are many ouster clauses therein contained. Such sections as 1 (3), 4 (8), 6 (6) (c) and (d), 143 (10) and 188 (10), 174 (1) (c) and 211 (1) (c) and 308 to mention a few,9 are replete with varying degrees of ouster clauses that tend to shut the doors to the court and thereby leave victims whose rights have been infracted upon bare and without any form of legal remedy. Admittedly, while the tone of some sections mentioned above to wit: sections 4 (8), 6 (6) (c) and (d), 143 (10) and 188 (10), and 308 are active in debarring persons from ventilating their grievances in court, others to wit: sections 1 (3), 174 (1) (C) and 211 (1) (C), are passive; however, the effects are same. The sections shall now be discussed seriatim. i. Section 1 (1) and (3) of the Constitution Nigeria, like most other commonwealth countries10 has a rigid constitution. Like other rigid constitutional democracies, Nigerian constitution is supreme and all other laws, organs and ties of government derive their validity and powers therefrom and must act within the bounds given to them by the constitution. Any exercise of power in excess of that which is permitted would ultra vire its power and liable to be nullified by the court if challenged. Consequently, section 1 (1) and (3) of the constitution proclaim the constitutional gospel of supremacy thus: “(1) “This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” (3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.” 7 Igwenyi B.O., Modern Constitutional Law in Nigeria (Abakaliki: Nwamazi Printing and Publication Co. Ltd., 2006) pp.36-37 8 For fuller details on ouster clause statutes between 1914-2003, see generally, Fawehinmi Gani op cit 9 There are indeed, many other ouster clauses in the constitution which will not be considered now. For instance, arguably all sections of the constitution making judgments of any court other than the Supreme Court final bear semblances of ouster clauses. Our discussion will however centre primarily on the sections aforementioned. 10 Save for Britain whose constitution is unwritten 54 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. It can thus be deciphered from the tone of paragraph (3) of section 1 above that the jurisdiction of the parliamentarians whether of state or federal is ousted from enacting any law insofar as it conflicts with the constitution. Since our system of government in Nigeria is anchored on constitutional supremacy, we will go no further on this section because although an ouster clause in nature, it is to be expected in every rigid constitution; more so, it is innocuous to the rights of the citizens but rather protects it. ii. Section 4 (8) Next, we have section 4 (8) which provides thus: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by Law.” It is generally said and correctly too in our humble opinion that the judiciary/court is the last hope of the common man. This being the case, there is no reason to say the otherwise i.e. that the powers of the court should be subjected to whimsical powers of the legislature. Natural justice demands that people’s right to an impartial arbiter should be unfettered and to this extent, the provision though an ouster clause of legislative powers to enact laws, is a good one. Be that as it may, some questions beg for answers. In the light of sections 1 (1) and (3) and 4 (8) above, why has ouster clauses persisted in myriads of our laws 11 till date even after it has been forbidden by the constitution? Why have the legislatures at various levels relentlessly continued to enact laws which purported to oust the courts’ jurisdiction? 12 Why should the same constitution which provides that courts should have powers over all persons, government and authority in section 6 (6) (b) suddenly turn to abrogate same within the same constitution via ouster clauses when so doing amounted to a clear give and take or double standard? These questions cast serious doubt on the genuineness of the origin of “WE THE PEOPLE of the Federal Republic of Nigeria…” in the preamble of the constitution which origin was purportedly ascribed to Nigerians. iii. Section 6 (6) (c) and (d) Section 6 (6) (c) and (d) of the constitution provides thus: “6 (6) the judicial powers vested in accordance with the foregoing provisions of this section— (c) Shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution ; and (d) Shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.” As earlier pointed out, whether or not the constitution emanated from Nigerians as the preamble says or from the military as some argue remains debatable. As can be seen above, section 6 (6) (b) ousted the jurisdiction of the court to entertain any matter contained in 11 For instance, sections 1 of the Diplomatic Immunities Act, Cap D9, 1962; and Federal Commission (Privileges and Immunities Act) Cap F9 1963 respectively created ouster clauses 12 For details of those laws, see Fawehinmi Gani op cit 55 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Chapter II of the constitution. It is submitted with respect that any government that has sincerity of purpose coupled with integrity ought not to entertain fears of having its actions challenged in court; better still, if Nigerian state is not ripe enough to make the chapter justiciable, the question is, why put it in the constitution in the first place? It is not satisfactory enough that they remain mere aspirations of a government that has for long proved to lack the will power to pursue the people oriented provisions of the chapter with vigour. It is opined respectfully that in the circumstance, Chapter II of the constitution is a utopia that has no utilitarian value to Nigerians as a people. In the past, non-justiciability of the Fundamental Objectives and Directive Principle of State Policy as contained in Chapter II of the constitution used to characterise the constitutions of developing countries like Nigeria. However, India (also a developing country like Nigeria) realising that it was a smokescreen that shielded corruption and encouraged impunity had long made it justiciable, a feat that is yet to be replicated in Nigeria and which we all yearn for. The inimical effect of the above ouster is that it has given unabated license for impunity, unbridled corruption, subversion of the highest order and brazen dereliction of public duties and the courts are most often made to stand aloof and unwilling to invoke its powers in aid of the common man whose last hope they are acclaimed to be. The attitude of the courts to ouster clauses was illustrated by the Supreme Court per Ogwuegbu JSC in Attorney General of Ondo State v. Attorney General of the Federation,13 thus: “…courts cannot enforce any of the provisions of Chapter II of the constitution until the National Assembly has enacted specific laws for their enforcement as has been done in respect of section 15 (5) of the constitution by the enactment of the ICPC Act.” In the year 2015, the current President of the Federal Republic of Nigeria, President Mohammadu Buhari (GCFR) pursuant to the powers conferred on him by sections 151 (1) and 171 (2) of the constitution appointed his personal aides whose offices neither required any confirmation of the senate nor laid down rules that must be followed. Who and when to appoint are entirely at the President’s discretion although he is to be guided by sections 14 (3) and 171 (5) in exercising his powers to ensure federal character and promotion of national unity. The livid taste of non justiciability of Chapter II arising from the ouster clause of section 6 (6) (c) was felt by Nigerians when it was widely opined that his appointments were sectional; yet no one could challenge it in any court. While the above smothering helplessness stared at Nigerians, even the equitable maxim of ubi jus ibi remedium could not intervene to address the palpable injustice that the President’s slope-sided appointments occasioned; yet; the government sings rule of law mantra on daily basis – sheer hypocrisy. It is to be noted that besides the all important Chapter IV which sanctioned the fundamental human rights, the non justiciable Chapter II is unarguably the most important chapter to Nigerians as humans given that the said chapter provides for socio economic rights which guarantees basic human needs. It is a pity that after more than half a century of our political independence coupled with our enormous natural endowments; the government has failed to guarantee the socio economic rights but instead, spited Nigerians further by mooting every possible moves to challenge their failure to provide basic necessities of life to the people in court through the instrumentality of ouster clauses. 13 (2002) 9 NWLR (Pt. 772) 222 at 343 56 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Further, we go to section 6 (6) (d) which is already reproduced above. The section to say the least, clearly justifies the argument in some quarters that notwithstanding the “WE THE PEOPLE of the Federal Republic of Nigeria…” in the preamble of the constitution, the 1999 constitution is arguably not autochthonous as we are made to believe. It is a by-product of the military who after decades of orchestrating wanton salacity, human right abuses and impunities on the people, used the section to design their escape route. Both at common law and in equity, nothing justifies a man who has committed atrocities not to answer to his crimes at the end; after all, the good writ (bible) says that every soul who sinneth shall die and that the wages of sin is death. Worrisomely, it should be noted that most of these acts being shielded from questioning by the courts qualify as crimes against humanity under the international law. A look at the roles of some highly placed military personnel during and after the Nigerian civil war would reveal atrocities that ought not to be swept under the carpet by a legal means. For instance, although General Sani Abacha is dead (peace be upon his soul); his role in the gruesome execution of Ken Saro Wiwa and eight other Ogoni activists is still fresh in our mind. Setting up a ‘kangaroo’ tribunal to try them was a mere formality to clothe the atrocity with legality. While in prison Saro Wiwa was routinely tortured in the prison, dehumanised and denied access to family members, lawyers, medication and food. From the military hospital where he was kept, he smuggled out a letter which vividly captures his harrowing ordeals thus: “For two nights, I have not slept a wink, I am being intimidated, harassed and dehumanised even though I am supposed to be receiving medical attention... I am like Ogoni, battered, bruised, brutalised, bloodied and almost buried.”14 It is to be noted that the ‘kangaroo’ “Specially Convened Tribunal” sat but as a result of high handed rigging, most of the defence lawyers were forced to withdraw from the case leaving the accused persons to their bleak fate. Consequently, Ken Saro Wiwa and Eight Ogoni others were dubiously found guilty and sentenced to death on 31st October, 1995. Notwithstanding the national and international calls for leniency especially as the nine were not given fair trial, the ruthless Abacha regime nonetheless executed the activists on 10th November, 1995 by hanging.15 Sadly, it should be noted that their execution came even when the short time given for them to appeal the Tribunal’s verdict had not lapsed. Facts emerged later that persons who testified against the Ogoni Nine were bribed to do so. Some were promised employment in the Shell Petroleum.16 The above is just one out of the many war crime atrocities the ouster clause of section 6 (6) (d) says Nigerians should not question even when time does not run against the state in prosecution of an offence. iv. Sections 143 (10) and 188 (10) Furthermore, we have sections 143 (10) and 188 (10) of the constitution. The two sections are the same in substance except that the former applies to the office of the President and Vice President while the latter applies to the Governors and Deputy Governors. It deals with the impeachment or removal of the President and Vice President or Governor and Deputy Remember Saro Wiwa ‘The Death of Ken Saro Wiwa’ [WWW document] URL available at http://remembersarowiwa.com/background/the-death-of-ken-saro-wiwa/ (accessed on 7th August, 2017 at 4:05pm) Wikipedia(2015, May 6) ‘Ken Saro-Wiwa’ [WWW document] URL available at https://en.m.wikipedia.org/wiki/ken_Saro-Wiwa (accessed on 6th August, 2017 at 4:pm) 16 Ibid 14 57 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Governor from office. For the purposes of this article, section 188 (10) dealing on the office of the Governor and Deputy Governor will be used. It provides thus: “188—(1) The Governor or Deputy Governor of a State may be removed from office in accordance with the provisions of this section…. (10) No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”17 Interestingly, unlike other ouster clauses earlier discussed, section 188 (10) supra has plausibly raised more dust in the polity than others. Under the watch of the 1999 constitution, not only have many Houses of Assembly serially abused the perceived unquestionable powers to impeach either the Governor, Deputy Governor or even their colleagues (Speakers18) same having been put beyond the court’s inquisition, as Edo and Rivers States Houses of Assembly scenarios show, punches and fisted blows have been thrown at each other by our supposed honourable representatives while purporting to carry out this sacred duty; apologies for our inability to attach the laughable video footages of the above scenarios here. In Enyi Abaribe v The Speaker, Abia State House of Assembly, the Court of Appeal in interpreting section 188 (10) made heavy weather of the fact that a case cannot be brought before it (court) concerning the affairs of legislature in the exercise of their power of impeachment. It held that its powers were effectively ousted and therefore declined jurisdiction. Hear the Court of Appeal per Akpiroroh, JCA as he then was: “The wording of section 188 (10) of the Constitution of the Federal Republic of Nigeria, 1999 puts it beyond argument that the courts have no jurisdiction to entertain the appellant’s action and the learned trial judge was quite right in declining jurisdiction”19 However, it took some dints of judicial activism in the later cases of Jimoh v Olawoye20 and Inakoju v Adeleke21 for the courts to introduce a new twist to the interpretations earlier given to the section. This show of judicial activism was timely in order to tame the ugly trend of abuses that were already becoming rampant. In Jimoh v Olawoye supra, the court craftily interpreted the provisions of section 26 (10) of the Local Government Law of Kwara State relating to Local Government Chairmen which is in pari materia with the provision of section 188 (10) of the constitution to the effect that the court will intervene in an impeachment suit notwithstanding section 26 (10) of the Local Government Law of Kwara State unless the provisions of section 26 (1) – (9) which listed the procedure for removal have been complied with. The court per Onnoghen JCA (as he then was) rose to the occasion and noted that: “It is not in doubt that sub-section 10 of section 26 ousts the jurisdiction of the lower court and it is the law that in interpreting such a sub-section, the whole section must be taken into account so as to assist in understanding the circumstances in which the ouster comes to play for it is believed that the jurisdiction of the court is not meant to be ousted in any event 17 Please see the entire section 188 of the constitution for the full details of the procedures. See the recent impeachment of the Speaker, Edo State House of Assembly in August 2017 reported by Vanguard Newspaper of August 14, 2017 as ‘Breaking: Edo Assembly Speaker Impeached’ [WWW document] URL available at https://www.vanguardngr.com/2017/08/breaking-edo-assembly-speakerimpeached/ (accessed on 18th August, 2017 at 7:30pm) 19 (2002) 14 NWLR (Pt. 788)466 at 492 20 (2003) 10 NWLR (Pt. 828) 307 at 337 21 (2007) 4 NWLR (Pt. 1025) 423 18 58 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. simply because the provision says so. It has been held that for the sub-section to enjoy the protection envisaged, the implementation of the provisions of the section must be in accordance with the section and must not suffer a fundamental vice”22 The court reasoned that section 26 (10) was contrary to section 4 (8) of the constitution which bars the legislature from enacting laws that purport to oust the jurisdiction of the court and therefore unconstitutional as it attempted to do so. With due respect, the reason given by the court in the above case is correct only because the law in question is the Local Government Law of Kwara State, a legislation inferior to the constitution. The question is therefore whether the court would have given same reason if the office in question was that of the Governor of Kwara State since the said impeachment procedure would have been guided by the constitution itself and no section of the constitution is superior to another? In this case, there would have been a war between section 188 (10) against section 4 (8)! Perhaps, the above question was answered in the 2007 Supreme Court locus classicus case of Inakoju v Adeleke.23 In the case, the Supreme Court per Tobi JSC (as he then was) held that the ouster clause in section 188 (10) of the constitution will only apply to deny the court of the jurisdiction to decide an impeachment suit only if the provisions of section (1) – (9) which outlines the procedure for removal of the governor had been faithfully complied with. The case opened up the way for later cases that followed. Regrettably, in a bid to cover up the illegality of over stretching section 188 (10) in the case, Ogbuagu JSC (as he then was) comically noted the lead counsel to the Respondent’s argument thus: “I will pause here to observe that one of the most ridiculous submissions that I have read in the Records at page 236 appear as follows: ‘…It is submitted that having regard to the provisions of the Constitution, in particular, Section 90 – 96, a House of Assembly does not mean a building but the members constituting the House. Thus, we submit that a House of Assembly can sit anywhere to perform its legislative duties, for otherwise, we submit respectfully can only lead to absurdity.’ …This submission shows again, how low, undignified, some learned counsel can go or descend in the name of advocacy”.24 We believe that if similar judicial activism that reformed section 188 (10) above are extended to other constitutional ouster clause provisions especially Section 6 (6) (c) and (d), it is our humble view that Nigeria may well be on course to the practice of true rule of law devoid of mockery. v. Sections 174 (1) (a) - (c) and 211(1) (a) - (c) Penultimately, sections 174 (1) (a) - (c) and 211(1) (a) - (c) of the constitution deals on the powers of the Attorney General of the Federation and States respectively with respect to public prosecution and like the above case of impeachment, the two sections are fairly the same. Section 174 (1) (a) - (c) dealing with the powers of the Attorney General of the Federation will be used for the purpose of this article. It provides: “174.–(1) The Attorney-General of the Federation shall have power— 22 Op cit p. 337 Supra 24 Ibid p. 453-454 23 59 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly ; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person ; and (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” Let us point out that in our humble opinion, the duty of state prosecution in Nigeria like other commonwealth countries was rightly vested on the Attorney General to regulate and secure the criminal justice system. However, with due respect the extent of powers exercisable in this respect is too wide and has in the past, given rise to abuses through mala fide exercise of these prosecutorial powers. Needless to say here that there is very little or no legal remedy available to the victims of mala fide exercise of these prosecutorial powers since powers of private citizens to seek redress in court via a criminal action is totally ousted or allowed only to the extent that the Attorney General is willing to grant his fiat. We are not oblivious of the fact that civil actions may lie though but in certain cases civil remedies such as damages, mandamus or injunction may be grossly inadequate. Take for instance, in a case of willful murder where the Attorney General is unwilling to prosecute. Without prejudice to the right of the bereaved to apply for mandamus to compel the Attorney General to perform his duty,25 neither the court nor the Applicant (s) can supervise the seriousness with which the Attorney General handles such ‘forced’ labour if ever he prosecutes in the first place. The only step within their own (Applicants) reach is to institute civil action which at best would earn them damages which is certainly not adequate in the instant case. More lewdly to the exercise of the Attorney General’s enormous powers is his power under section 174 (1) (c). That is, unquestionable and absolute power to discontinue at any stage and without reason, any criminal proceedings pending before any court save Courts Martial, whether instituted by him or not before judgement is given.26 In Attorney General of Kaduna State v Hassan,27 the Supreme Court held that the Solicitor General of Kaduna State could not validly enter nolle prosequi only because there was no sitting Attorney General and had the nolle prosequi been undertaken by the Attorney General,28 the court would have held otherwise. Moreover, it should be noted that apart from the purported entering of nolle prosequi to terminate the action, the Solicitor General also sought to bar the father of the victim from challenging the fact of his purported termination of the action in a civil suit. This is a serious mockery in a system that professes to practice rule of rule – one’s right is impinged and at the same time his access to court for redress scuttled. It is therefore recommended that this vast power of the Attorneys General under the constitution be curtailed even if it is to the extent that they could give satisfactory reason on oath why it is in the interest of the public to terminate the case; this will make Attorneys General more responsible. 25 See Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797 at 855 C See also State v Ilori (1983) 1 SCNLR 94 27 (1985) 2 NWLR (Pt. 8) 483 at 503 28 Whose office was vacant at the moment 26 60 LEGAL AID OYO JOURNAL OF LEGAL ISSUES vi. VOL. 1, ISSUE 1, 2017. Immunity clause of section 308 Lastly, we have the immunity clause of section 308 of the constitution. The section provides thus: “308.—(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section— (a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office ; (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise ; and (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued : Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.” It was Eric Blair29 that wrote in his famous satirical work, Animal Farm that “all animals are equal but some animals are more equal than others.”30 The above statement though a satire of the then Russian government is the true situation of Nigeria in 2017. Arguments are copious in some quarters that even the rule of law does not abhor granting certain immunities and privileges to some state officials so that they could perform their duties undisturbed. Argument as this is tenable provided the immunity is not subjected to constant abuses; and where it becomes an avenue for unjustifiable abuses, must we wait for 4 years or 8 years as the case maybe before we have it addressed bearing in mind that justice delayed is justice denied? People who possess sound leadership charisma to lead would be open bearing in mind that there is nothing to hide. Insincerity of purpose becomes the only logical reason why the political class clings to immunity clauses to perpetrate evil and by the time they leave office, evidence could have been destroyed. A renowned Nigerian author, Professor Chinua Achebe, aptly captured this situation when he cried out that: “The trouble with Nigeria is simply and squarely a failure of leadership…… The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, to the challenge of personal example which is the hallmark of true leadership.”31 In Fawehinmi v I.G.P,32 all that Alhaji Bola Tinubu could reply to Gani Fawehnmi and indeed Nigerians over the allegation of his lying on oath with respect to his academic qualification upon which INEC screened him to contest for the Governor of Lagos state was to plead immunity from police investigation33 without any attempt to clarify Nigerians on the serious allegation made against him by Chief Gani Fawehnmi. It is heartbreaking that this is what we see continually yet spite the rule of law further by laying claim to it. Unfortunately, Chief Fawehinmi lost out in his effort to compel the Police by mandamus to investigate Alhaji. Bola Tinubu on grounds that he had no locus standi and his failure to tender certified 29 30 Who later became known as George Orwell See George Orwell., Animal Farm: A Fairy Story, (USA, New York: Harcourt, Brace and Company, 1946), p. 51. 31 Achebe, C.: The Trouble with Nigeria, (Enugu: Fourth Dimension Publishers, 1985), p. 1. (2002) 7 NWLR (Pt. 767) 606 at 625-626 33 As he had already been elected and sworn in as the Governor of Lagos State on 29 May, 1999. 32 61 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. true copy of the INEC declaration forms. However, the message is sent loud and clear how ouster clauses have done to Nigerians, more disservice than good. CALL FOR JUDICIAL ACTIVISM It was lord Denning who in Parker v Parker34 opined thus: “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both” Perhaps, the above would capture vividly what judicial activism is all about – doing something which is seldomly done. Critics of this concept refer to it as judicial rulings that are suspected to be based on personal or political considerations rather than on existing law. Be that as it may, the law in its final analysis is still what the (Supreme) Court says it is; all others may criticize but apply it. Given that experience has shown that most privileges in the form of ouster clauses which ought to serve good purposes are now usually exploited negatively, judicial activism seems to be the only way out to ensure that our fledgling democracy and rule of law remain intact. This is because, if public opinion continues to be that law is a cobweb that only catches small animals in the society, people’s confidence in the entire legal system and even allegiance to Nigeria35 will continually diminish thereby engendering indifference and anarchy. Another example is the current looming waves of mob actions and lynching whenever suspected thieves are caught. An enquiry into why jungle justice has remained rampant in the society reveals that the majority of the citizens have lost faith that the criminal justice system is capable of doing justice in the circumstance. It is on this premise that we seriously advocate that the role of the judiciary in preserving rule of law should not just be limited to the rubber stamp interpretation but should extend to purposeful adventure with a view to forestalling the mischief which the highly placed in the society read into our laws with a view to escaping the dragnet of the law; after all, the best judicial pronouncements so far made by the courts are those laced with the activism of our noble lords. 34 35 (1954) All E.R p.22 No wonder there is a torrential movement for secession across major ethnic groupings in Nigeria. 62 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. HEROES AND VILLIANS: APPOINTMENT AND CONFIRMATION OF OFFICERS UNDER SECTION 171 OF THE CONSTITUTION AND OTHER CASES OF THE NIGERIAN DRAMA By Muyiwa Aladetoyinbo LL.B. (Obafemi Awolowo University) B.L. Legal practitioner [email protected] ABSTRACT The article takes a neutral’s view on the stakeholders in the Nigeria polity through a lens of Heroes and Villains for artistic effect. It majorly takes a critical look at the ongoing tussle between the Senate and Executive over appointment and confirmation of officers under Section 171 of the Constitution, with Mr. Ibrahim Magu, the acting chairman of the EFCC in focus. The article analyses the author’s view of legal questions and social implications arising from the current standoff between both parties. The article concludes by shortly mentioning and discussing the roles played by another actor in the polity, Pretty Mike. KEY WORDS: Ibrahim Magu, Economic and Financial Crimes Commission, Constituion, Confirmation, Senate INTRODUCTION Our Nigeria is a peculiar country with none akin to it on the face of the earth. Amongst its many peculiarities, Nigeria is a country blessed with more than its own fair share of drama and comics. We are blessed with professionals in Nollywood, stand-up comedy acts and to the chagrin and bewilderment but nevertheless entertainment of Nigerians; we have more comic dramatists and elements in the Nigerian polity. Count in our Michael Jackson reincarnated senators, to cite the Vice- President, our record waxing senators and some others well versed in martial arts. This is a circus like polity markedly characterized by the amateur practice of the westernized system of public administration which has been peppered with mind numbing gaffes and jaw dropping shows put on by the actors that have at various times being in the spotlight. Wonders never end in Nigeria and if Alice were to ever find herself in Nigeria, she would no doubt submit that Wonderland has nothing on the Nairaland. The Nigerian populace generally harbours distrust for the man in politics, but have at various times and climes extolled some men as heroes and as it would be had, painted some if not most as villains. However a cautious approach is needed concerning this, as the divide between heroes and villains is one that is shaded with a lot of grey and is easily straddled by the actors in the plot. Take for example, a man like the great Chief Obafemi Awolowo is revered and held in high regard by the Yoruba in South-Western Nigeria and is very much seen as the -could have been- saviour of Nigeria who unfortunately never got to carry out his divine assignment due to the manoeuvres of his antagonists. But remarkably, without mincing words, the same untouchable hero for the south-western folks does not hold much sway amongst the Igbo people of South-Eastern Nigeria because he was an antagonist to one of their own heroes, no other man than the valiant Ikemba of the Igboland, General Chukwuemeka Odumegwu Ojukwu. The two actors played out unavoidably conflicting but 63 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. yet important and definitive roles during the1967-1970 Civil war as General Chukwuemeka led the Biafran state in its defence against the Nigerian army, while Chief Awolowo was the Vice Chairman of the Federal Executive Council and the Federal Commissioner for Finance. Chief Awolowo came up with the wartime policy of starvation and currency change which decidedly swung the tide in favour of the Nigerian Army1. The Igbos will no doubt attest to Chief Awolowo being a man of great quality and full of intellect, but what they would not do is put him on the pedestal of a hero like the Yorubas do, but will rather portray him in a villainous light as he stood in the way of them having their Biafra state in the past.2 Nigeria is well stocked with actors who cross-carpet the threshold of ´herodom´ and the villainy, people who split public opinion, to name a few men, politicians such as Governor Ayodele Fayose of Ekiti State; Senate President Bukola Saraki; the Agitators such as Movement for the Actualization of the Sovereign State of Biafra (MASSOB); Indigenous People of Biafra (IPOB)3; the Arewa Youth Forum; the most controversial Nnamdi Kanu; other players like the EFCC chairman Ibrahim Magu, the former Minister of Petroleum Mrs Alison Madueke, Evans the Kidnapper to mention a few. These actors have in no small means influenced our landscape in their own way and have played out definitive roles, they have fed the media hot topics for public opinions and fuelled discussions among Nigerians who have one way or the other, adored, hated or been indifferent about them. This article seeks to make an appraisal of a few of our major and notable actors, their support cast and antagonists, it also tries to make an assessment of the plots, the roles they have played and the implications of such on our legal system. THE CURIOUS CASE OF MR. MAGU: THE SENATE AND THE EXECUTIVE STANDOFF. A major actor who has been very much in the spotlight and at the centre of controversy is Mr Ibrahim Magu4. The controversy surrounding Magu is a well-publicised one as he has got the Legislative and the Executive locked in a battle of wits5 that would terrify two fighting rams. The saga behind the Senate’s refusal to confirm him as the chairman of the EFCC, having rejected his nomination by the Executive twice and the seemingly desperate attempt of the Executive to have him remain in office as the Commission’s acting chairman despite this rejection is threatening to blow over into a pandemonium of all sorts. So far so good, the present administration has made good strides towards ridding the country of the cankerworm of corruption that has eaten deep into the fabric of the country, this is evident from the spate at which corrupt acts are being brought to light, though neutrals and critics alike are quick to point out that the anti-corruption drive is taking on a partisan pattern, giving it a tinge of witch hunting but nevertheless the results are there for everyone to see. Huge sums of money have been discovered with no one laying claim to them, an undeclared 1 www.vanguardngr.com/2012/10/the-achebe-controversy-awolowo-and-the-forgotten-documents-of-thecivil-war-byodia-ofeimun/amp accessed on 10 October 2017 at 9:25am 2 www.igbofocus.co.uk/The_Biafra/The_Financing_of_the_Nigerian_/the_financing_of_the_nigerian_civil_war. html accessed on 14 October 2017 at 9:30am 3 Dailypost.ng/2016/95/18/Biafra-we-ate-tired-of-nigeria-give-us-freedom-ipob/amp/?espv=1 accessed on 14 October 2017 at 9:36am 4 https://efccnigeria.org/efcc/about-efcc/executive-chairman accessed 14 Oct. 17 at 10:25am 5 www.vanguardngr.com/2017/07/ibrahim-magu-fall-guy-face-off/amp/?espv=1 accessed 14 Oct. 17 at 10:38am 64 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. sum of N49m was intercepted at the Kaduna airport6 but its owner played Houdini before arrival of anti-graft agencies, another whooping sum of $43.4m, $27,800 and N23.2m were found lying in an Ikoyi apartment7, this one had the nation looking for its owner(s) for months and everyone fingered denied ownership. One would be forgiven to think public officers and civil servants were in a race to outdo our ancestors in their money storage system of the olden days as eye watering amounts of money have been discovered buried in underground bunkers, septic tanks and bizarrely graves.8 The EFCC is the top dog at forefront of the anti-graft war and its boss Mr Ibrahim Magu has been the poster boy and an important cog in the delivery of the anti-corruption agenda. The Commission is no doubt an important one in the polity and the Executive is bent on having Magu a well-trained forensic accountant and financial crimes investigator head the Commission.9 It is noteworthy that each of the past administrations has always had its own preferred man take charge at the helm of affairs of the Commission. The first chairman of the Commission, Nuhu Ribadu was the man during President Olusegun Obasanjo’s tenure 10 and was replaced in May, 2008 when the late Yar Adua came into power. He was strangely but nonetheless comically removed for the purpose of a one year training programme 11 and was succeeded by Mrs Farida Waziri12 who served till President Goodluck Jonathan came into office. She lasted the longest of the chairmen into successive administrations as she was dismissed one year into office of GEJ in November, 2011, and was replaced by GEJs man Ibrahim Lamorde who was also was dismissed13 months after Buhari assumed office culminating in the appointment of Ibrahim Magu as the Acting Chairman in 2015. A question that begs an answer is why then did President Buhari delay for so long before presenting his man for confirmation before the Senate and could it be that during this window of delay, having taken on the powers that be; Magu had unavoidably stepped on big toes ahead of time before his confirmation. Baba Go Slow as he has been nicknamed made the appointment of Magu on the November 11, 2015 but his screening came up before the NASS more than a year later on the December 15, 2016 a time at which the anti-graft drive had taken flight under Magu. It is no secret that about 15 to 20 senators currently serving in the 8th NASS are under investigation by the EFCC14; this leaves one to wonder whether if he had been screened before he started wielding the big stick, would the body language of the Senate have been friendlier compared to the hard-line approach it is taking now? It can easily be said that there should be no apparent conflict of interest, since not all of these cases were initiated during Magu’s reign and that the cases would necessarily survive the chief executive of EFCC. But in reality, the Executive is asking of the senate a very high standard of integrity; how one can request that the senators put on a veil of ignorance and be 6 https://www.channelstv.com/2017/03/14/efcc-discovers-49m-naira-at-kaduna-airport/ accessed 14 Oct. 17 at 10:40am 77 www.premiumtimesng.com/news/headlines/228778-i-know-ikoyi-house-efcc-found-n13million-former-pdpchairman.html/amp?espv=1 accessed 14 Oct. 17 at 10:49am 8 www.thisdaylive.com/index.php/2017/04/17/fg-looters-burying-stolen-funds-in-forests-cemetries/ accessed 14 Oct. 17 at 10:54am 9 https://efccnigeria.org/efcc/about-efcc/executive-chairman ibid 10 www.vanguardngr.com/2016/03/efcc-is-a-toothless-bulldog-obasanjo/amp/?espv=1 accessed 14 Oct. 17 at 10:58am 11 www.nigerianbiography.com/2015/11/biography-of-nuhu-ribadu.html?m=1 13 September 2017 at 10:00pm 12 Thepointernewsonline.com/?p=1284 accessed 14 Oct. 17 at 11:00am 13 Saharareporters.com/2015/11/09/efcc-chairman-ibrahim-lamorde-removed accessed 14 Oct. 17 at 11:03am 14 Saharareporters.com/2017/07/18/18-senators-under-probe-alleged-n3675b-fraud accessed 14 Oct. 17 at 11:09am 65 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. fair judges in their own case by going ahead to confirm without rancour the man who could be responsible for sending them and their colleagues to the gallows if it be due. This no doubt violates the principle of Nemo Judex In Causa Sua.15 This situation has no doubt exposed him to the risk of politicking and made him a vulnerable target for arm-twisting by anyone who simply worried about the EFFC motto – EFCC will get you anywhere anytime – coming to be the order of the day. Another poser is why the Executive is so bent on having Magu as the chairman by all means despite his rejection by senate. The Senate must have rejected Magu for certain reasons, how valid they are is another question of its own. Mr Magu is no stranger to controversy and the main ground on which he was rejected is his incrimination for corrupt practices based on a report16 by the DSS tabled before the Senate although not circulated in the house because they were tagged classified. In 2008 Under Waziri (who refused to resume office until she had been confirmed by senate) sensitive EFCC documents were found at his residence, he was detained and subsequently redeployed to the police and in December 2010, the Police Service Commission found him guilty of action prejudicial to state security, withholding of EFCC files, sabotage, unauthorized removal of EFCC files and acts unbecoming of a police officer. Looking at the saga from this perspective, it looks like this is a case of the Executive trying to undermine the Senate. It is no doubt only proper that once a candidate has been presented for confirmation before the Senate and is then rejected, that should be the end of the matter. But Magu has remained in office; the Senate’s rejection regardless, this no doubts ridicules confirmation and rejection powers exercised by the Senate. This threatens to create a trend where the Executive is allowed to make light of the confirmation powers of the senate and in the long run make them a mere formality. The most interesting part of the plot between the Senate and the Executive was unravelled when the reputable Human rights lawyer Femi Falana SAN, questioned17 the Senate’s constitutional authority to confirm the nomination of appointees by executive arm and he was backed up by the Vice-President, they took the position that the Executive did not really need the confirmation of the Senate to appoint some officers –the EFCC chairman included- as provided for by the Constitution in Section 171 of the Constitution and that Section 2(3) of the EFCC Act recommending Senate confirmation is in conflict with Section 171(1) of the Constitution which had already vested the power of appointment under the section solely in the President. The Executive further added some comic which fuelled the fire at its own expense when it afterwards forwarded the name of some appointees for confirmation by the Senate, the Senate did not let the chance go by to put its foot down as they refused to confirm Lanre Gbajabiamila as Director-General of National Lottery Regulatory Commission18, stating that Acting President had earlier maintained that the Senate lacked power to confirm nominees therefore no need to acknowledge any letter from the Executive on issues concerning confirmation. 15 Legal maxim meaning ´You Cannot Be A Judge In Your Own Case´ www.vanguardngr.com/2017/03/ibrahim-magu-dss-letter-Senate/amp/?espv=1 accessed 14 October 2017 at 11:14am 17 www.dailypost.ng/2017/07/17/falana-tells-presidency-senate-refusal-confirm-magu-efccboss/amp/?espv=1 accessed 14 October 2017 at 11:56am 18 www.vanguardngr.com/2017/07/magu-osinbajo-fresh-standoff/amp/?espv=1 accessed 14 October 2017 at 11:59am 16 66 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The bone of contention in the constitutional argument lies in Section 171 of the 1999 Constitution and Section 2(3) of the EFCC. Section 171(1) of the Constitution provides that ´´power to appoint persons to hold or act in offices under the section and to remove persons so appointed from any such office shall vest in the President.´ Section 171(2) (d) lists as one of these offices, the offices of Permanent secretary in any Ministry or Head of any Extra-Ministerial department of the government of the federation howsoever designated. Section 171(4) further provides that an appointment to the office of the Ambassador, High Commissioner or other Principal Representative of Nigeria shall not have effect unless the appointment is confirmed by the Senate. Section 2(3) of the EFCC Act says that the chairman and members of the Commission other than ex-officio members shall be appointed by the President and the appointment shall be subject to the confirmation of the Senate. A critical look at the above provisions poses some issues and arguments which our Supreme Court Justices would readily descend on with their legal acumens. However the Executive and the Senate are still in a phase of slugging it out between themselves with no need for a referee at this stage yet. So saying, a quick convention of the Writer’s lower court here would quickly suffice, not to exceed jurisdiction by passing judgement but to analyse possible issues in the standoff between both arms of government. A salient issue appears in asking the question of what was the intention of the draftsman when we construe Section 171(1), (2)(d) and (4) of the Constitution together. This is because of a specific provision made in Section 171(4) that appointment to offices of, Ambassador, High Commissioner or other Principal Representative of Nigeria abroad shall not have effect unless confirmed by the Senate. Does the fact that such specifics are missing concerning appointments to offices under section 171 (2) (d) mean the draughtsman never intended for there to be a Senate confirmation for Heads of Extra-Ministerial Departments. If such an intention is missing, another question is, if there is really a conflict between Section 171 of the Constitution and Section 2(3) of the EFCC Act? The argument of Femi Falana SAN on one side seems pretty straightforward, however, there could be another valid angle to it in arguing that EFCC Act does not necessarily contravene the Constitution but only supplements it. Should any question arise to terms of appointment of a chief executive in the future, Section 3 of the Act cannot be held to contravene the Constitution merely because it is silent on terms of appointment? But it is useful to bear in mind the Constitution doesn’t mean to underyoke the Act in its entirety as Section 1(3) of the Constitution states that laws contravening the Constitution will be held as void only to the point of their inconsistencies. The question on whether a conflict of law can be implied between section 171 of the Constitution and Section 2(3) of the Act will be an interesting one to watch out for if it ever gets before the Supreme Court? Notably, of all the offices provided for under Section 171(2) only the Head of Civil Service and offices under Section 171(2) (d) were not given further specifics as to mode of appointment. It may then be useful to consider how the appointments of the Head of Federal Civil Service and Permanent Secretaries are done in absence of any specific guidance under the section. The current Head of Civil Service, Mrs Winifred Oyo-Ita was appointed in October 2015 and confirmed in January 2016 at the Council Chamber during extra-ordinary Federal Executive Council Meeting19, and in August 2017, 21 Permanent Secretaries were 19 www.informationng.com/tag/winifred-ekanem-oyo-ita accessed on 15 September 2017 at 9:00pm 67 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. appointed by the Vice-President all without recourse to the Senate.20 This is enough suggestion that there ought to be no need for confirmation by Senate for appointment of Head of EMDs like the EFCC, but in the same vein, it is knowledge that other Heads of EMDs like the CBN governor are traditionally submitted to the Senate for screening. The major question now seems to be whether the past exercise of such confirmation and rejection powers by the Senate over of Heads of EMDs has been an oversight on part of the Executive and Legislative in another amateurish gaffe in running the Nigerian government. It remains to see how the Senate will take this wind of change which will diminish its control on official appointments or if it can afford to see this in a positive light, as a correction of error in procedure which will reduce its burden and allow it face more of the legion tasks before it. However things are leaning towards a chaotic state of affairs. Presently, the Senate may have motive to hold back confirmation for CBN Board members and 19 Resident Electoral Commissioners. The Executive have asked newly appointed heads of National Pension Commission, the Code of Conduct Bureau, and the ICPC to assume duty in acting capacities without Senate’s confirmation.21 Maturity is called for on both sides as controversies of this nature are resolved at round table discussions or panels as they would have in more experienced climes. NOTABLE MENTION FOR PRETTY MIKE Earlier this year, in the month of January, the social sphere of Nigeria was set on fire by Mike Eze-Nwalie Nwogu aka Pretty Mike, a Lagos socialite and club-owner, when videos emerged of attending a social event with two masked women on a dog leash. 22 He performed this public stunt twice leading to his arrest23 by the Lagos state police and was made to write an undertaking not to continue with what was described by the Attorney General of Lagos state, Adeniji Kazeem as an anti-social behavior aimed at dehumanizing citizens in the state. Pretty Mike had to endure a huge backlash of abuse and vile comments from Nigerians mostly on social media but unknown to us, the public stunts were only to gain the ear of Nigerians in spite of our attention deficit as he did so to speak out for women advocacy, he had successfully painted a symbolic picture of how our society is one that still seeks to control women by putting them on a leash. If the mother of feminism in Nigeria, the late Funmilayo Ransome- Kuti were to be alive, she would no doubt have applauded the bravery and ingenuity of this young man who took a risk to be a voice for women advocacy. This is a clime in which gender inequality is still the order of the day; this can be evidenced from the remarks of President Buhari when he told us that the First Lady belongs to the kitchen, the living room and the other room and the resistance with which the Sultan of Sokoto, Sa’ad Abubakar met a bill on gender equality seeking to enforce equal inheritance rights for men and women. However there have been great strides made in the country towards remedying this old mindset, there is increased participation of women in politics and public administration such that women have been elected to the posts such as that of Local Government Chairmen, a 20 www.premiumtimesng.com/news/top-news/239786-nigeria-appoints-21-new-federal-permanent-secretariesfull-list.html accessed on 15 September 2017 at 9:00pm 21 www.vanguardngr.com/2017/08/osinabjo-orders-pending-icpc-ccb-appointees-resume accessed on 10 October 2017 at 9:00pm 22 www.vanguardngr.com/2017/01/human-puppies-pretty-mike-signs-undertaking-stop-using-chainsgirls/amp/?espv=1 accessed 14 October 2017 at 12:09pm 23 www.vanguardngr.com/2017/01/ambode-orders-arrest-of-pretty-mike-for-putting-dog-chains/amp/ accessed 14 October 2017 at 12:09pm 68 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. position that would have been unaffordable in years past. Recently in 2015, Aisha Alhassan was on the verge of becoming the first female elected governor in Nigeria when she was declared by the Election Tribunal to be the winner of the gubernatorial polls in Taraba State only to be overturned by the Appeal and Supreme Courts. Dame Ngozi Etiaba had previously been the governor of Anambra for 3 months following the impeachment of Gov. Peter Obi before it was nullified by appeal court. The Supreme Court has also lent its weight in Ukeje v. Ukeje,24 when it held as repugnant and conflicting with the laws of Nigeria the customary laws of Igbo which bars a female child irrespective of her birth circumstances from participating in the estate of a deceased father. The role of women in Nigeria has transcended the living quarters and women have been breaking forth on all sides, to mention a very few, the critically acclaimed writer Chimamanda Ngozie Adichie, Senator Florence Ita-Giwa , Funke Akindele, have all made giant strides in their various fields. We even have female football referees in Nigeria today, in what is considered to be a man sport, one of them Bose Momoh who was incidentally and unfortunately attacked while officiating a match in August 2017.25 It is evident that western countries have intentionally through their legislations and other means empowered and liberalized their women and are now reaping the benefits. If we truly desire progress as a people, gender inequality will only take us aback if we keep our women and their enormous potential under a leash. Pretty Mike has made a statement which hopefully will not be forgotten soon, if not for anything but for imagery he employed in creating the awareness in our minds. 24 25 (2014) 11 NWLR 141 S.C punchng.com/wikki-fan-attacks-ref-injures-her-eye-with-stone/ accessed on 3 September 2017 at 5:00pm 69 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. LIABILITIES OF INTERMEDIARIES IN ECOMMERCE TRANSACTIONS UNDER NIGERIA’S ELECTRONIC TRANSACTIONS BILL 2017 By Mary-Anne A. Ogunleye LL.B (University of Ibadan) B.L. Legal practitioner at Dr. Akin Onigbinde SAN & Co. [email protected] ABSTRACT In accordance with the digital boom of ecommerce in Nigeria, the Electronics Transaction Bill (ETB) 2017 settled some uncertainties in ecommerce transactions as regards validity of contracts in ecommerce. However, the Bill does not adequately cater to all aspects of intermediary relationships that arise in same transactions. Using the comparative method, this paper discusses the risks that may be incurred by consumers and liabilities of intermediaries in ecommerce transactions in the European Union with the ETB 2017. The paper posits that the jurisdiction of the internet plays an important role in defining intermediary liability and the author proposes uniform global laws to combat it. Key Words: Electronic Transactions Communications, Information Technology. Bill 2017, Ecommerce, Intermediaries, INTRODUCTION During the last two decades or more, great changes have been taking place in the world; globalization, e-governance, regional trading blocs, and the reality of electronic transaction on the internet has been creating new opportunities for businesses and government to transform their economies, and new opportunities for citizens in every field and facet of life, be it entertainment, marketing, electronic transactions, e-judiciary, e-medicine, sports or education.1 There is no doubt ecommerce has started contributing to the growth of the Nigerian economy. According to National Bureau of Statistics (N.B.S.), the Information and Communications Technology industry directly contributed 12.39 per cent to Nigeria´s Gross Domestic Product (GDP) in the second quarter of 2017.2 Recently, the retail industry in Africa – Nigeria in particular – has seen tremendous growth, and its combined spending power has been projected to reach an all-time high of $1.3 trillion by 2030.3 As one of the continents’ leading IT market, Nigeria has seen a rapid surge in the development of ecommerce businesses.4 Pre-2017, it could be said that only 10 per cent of the ecommerce potential of Nigeria and perhaps Africa had been tapped and that the huge infrastructural gap in the ecommerce sector was worsening due to the absence of holistic regulatory framework.5 However, a remarkable regulatory law that bridged the gap in the dearth of internet laws, specifically e-commerce transactions is the Nigerian Electronic Transactions Bill, 2017 which was passed into law on 18 May 2017. 1 Techlawnigeria.org/profile.html accessed on 10 September 2017 at 17:02 www.nigerianstat.gov.ng GDP_Report_Quarter 2_2017_.pdf 10 September 2017 at 7:35pm 3 Venturesafrica.com/top-7-e-commerce-firms-nigeria/amp/ 10 September 2017 at 5:36pm 4 Venturesafrica.com/top-7-e-commerce-firms-nigeria/amp/ 10 September 2017 at 5:38pm 5 www.businessdayonline.com/buharis-assent-to-electronics-transactions-bill-seen-closing-sector-regultorygaps/ 11 September 2017 at 11:23am 2 70 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The Bill seeks to provide a legal and regulatory framework for conducting transactions using electronic or related media, and for the protection of the rights of customers including the facilitation of electronic commerce in Nigeria.6 The Bill provides for the validity of contracts expressed in electronic forms, matters relating to evidence, security of online transactions, electronic signatures, disclosure of information, protection of personal data and protection of rights of consumers.7 Despite this feat, it is pertinent to note that the Bill does not adequately provide a holistic framework for the ICT Sector. In physical transactions, where parties fail to make explicit provisions for issues of jurisdiction, the matter may fall to be decided by the courts 8. There is still some vacuum as to the determination of where and when a contract is concluded in ecommerce transactions, hence, creating some uncertainty as to liability of parties and intermediaries. a. b. c. d. OVERVIEW OF THE ELECTRONIC TRANSACTION BILL (ETB) 2017 The author recognises that the Electronic Transactions Bill 2017 is not in wide circulation; hence, many are ignorant of its existence. It is, therefore, imperative to have a brief overview of the law. The legislative framework of the ETB is predicated on the need to upgrade Nigeria´s commercial system in line with the global digital framework.9 The Bill is to facilitate the use of information in electronic form for conducting transactions in Nigeria and for connected purposes. The Bill is divided into nine (9) parts. Part I is the Preliminary Part and it lists the objectives of the Bill thus: 10 ´´to provide a legal and regulatory framework for: Conducting transactions using electronic or related media; The protection of the rights of consumers and other parties in electronic transactions and services; The protection of personal data; and The facilitating electronic commerce in Nigeria´´ The scope of Part II is Electronic Records11. It provides for the scope of electronic records including all information in the form of electronic or other media, then, proceeds to extensively limit the scope. It provides that the Bill shall not apply to: a. The creation or execution of a Will; b. The execution of negotiable instruments; c. The creation, performance or enforcement of an indenture, declaration of trust or power of attorney except constructive and resulting trusts; d. Any contract for sale or disposition of immovable property; e. The conveyance of immovable property or transfer of any interest in immovable property; and f. Documents of title for movable or immovable property; and 6 Placng.org/wp/2017/05/senate-passes-the-electronic-transaction-bill/ 11 September 2017 at 11:20am www.businessdayonline.com/buharis-assent-to-electronics-transactions-bill-seen-closing-sector-regultorygaps/ 11 September 2017 at 11:23am 8 Llyod I.J., Information Technology Law, 6th Ed., (New York: Oxford University Press, 2011), p.456 9 Objectives of the Electronic Transactions Bill 2017. SEE ALSO Long Title and Explanatory Memorandum of the Bill 10 Section 1 supra 11 Sections 2 – 10 supra 7 71 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. g. Where such application would involve a construction of a rule of law that is clearly inconsistent with the manifest intent of the law-making body or repugnant to the context of the same rule of law12 Part II also provides for the Validity of electronic records13 and Documents required to be in writing14 - which provides that ´where any law requires information to be in writing, that requirement is met if the information is contained in a document as defined by this Bill and such information is accessible in a manner useable for subsequent reference.´ Notable are the provisions on Original documents15; Admissibility of documents 16 - which must be read in conjunction with Section 84 of the Evidence Act; Electronic filing;17 the provision introducing Electronic gazette18 and Retention of records.19 The scope of Part III20 is solely on electronic signature – its validity; its administration; the Certification Authority; the Recognition of Foreign Certification Authority; record retention by Certification Authority and liability of Certification Authority. The scope of Part IV21 is data protection. It includes the scope of data protection provisions – which applies to processing of personal data by automated means in a filing system 22; conditions for processing of personal data; conditions for processing of sensitive personal data; the rights of data owner – including the right of data owner to prevent processing of his/her personal data23; security of personal data; etc. This is the first segment where Part IV mentions and empowers the National Information Technology Development Agency (NITDA) to develop rules and guidelines for data protection.24 The scope of Part V25 is Electronic Contract. It includes provisions on validity of electronic contracts – offer and acceptance, etc. by means covered by the Bill; electronic payments; documents from the originator; transmission of documents26; dispatch of documents27; and transnational transactions – the provisions of transnational transactions will be treated further in this discourse. 12 Section 2(2) supra Section 3 supra 14 Section 4 supra 15 Section 6 supra 16 Section 7 supra - which provides that nothing in the application of rules of evidence shall apply to deny admissibility to any document not in paper form. 17 Section 8 supra 18 Section 9 supra 19 Section 10 supra 20 Sections 11 – 16 supra 21 Sections 17 – 25 supra 22 Section 17 does not apply to processing of personal data in the course of an activity concerning public safety, defence, national security; law enforcement, intelligence or prosecuting agencies in criminal law; or by a natural person for personal or domestic use. 23 This is by giving notice in writing to the data holder to not begin processing or to cease processing, as the case may be. Notably, the data owner can apply to court for a mandatory or prohibiting order, provided that he/she has complied with the provision of written notice. 24 Section 25 ETB 25 Sections 26 – 30 supra 26 Includes agreed form of acknowledgement and any other conduct sufficient to indicate that the document has been received, etc. 27 Includes implied terms of law on dispatch of documents; mode of receipt, etc. 13 72 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The scope of Part VI28 is Carriage of goods. It applies to any action in connection with, or in pursuance of, a contract of carriage of goods – including furnishing marks or number or weight; notification of terms and conditions; instructions to carrier; authorization of release of goods; notice of loss or damage in goods etc. The scope of Part VII29 is Consumer Protection. It provides for information by vendor – to enable intending consumers make informed decisions30; cancellation of contract before processing; confidentiality of consumers´ personal information; and procedure on how to stop receiving unsolicited messages. The scope of Part VIII31 is Liability of Service Providers and Vendors. It includes provisions on liability of service providers; conditions of such liability; temporary storage of goods; passive storage of goods; liability for links; and monitoring of processed records.32 The scope of Part IX33 is on subsidiary regulations – which the NITDA is empowered for; Offences by corporate body; interpretation; and the Bill´s short title. PARTIES TO E-COMMERCE The internet is a network of networks. It can be likened to a digital transport service that moves information, in packets, from one computer to another. The internet is no more than a communications technology. Any additional functions which are effected via the internet are not performed by the internet itself. They are services which are provided by one or more players involved. All these services are performed by the exchange of digital information.34 It follows that there will be more persons involved in any transmission of information than simply the sender and receiver. The packets of information transmitted will have been copied by one or more intermediary computers, which may not be the same computers for each packet. At this stage, for the purpose of legal analysis, it is simplest to divide the players in an internet information exchange into two groups35: a. Parties to the exchange i.e. Computers of sender and receiver b. Intermediaries, i.e. all other computers which receive and pass on packets A typical e-commerce transaction involves four major stages: the customer search stage (from the various e-commerce sites available), the ordering stage; the online payment stage for the goods and services and the delivery stage. Some other stages such as inquiry, complaints, returns of goods etc., may however come in at some point within, or along the major stages of the e-commerce transaction.36 Goods are delivered with either in-house or 28 Section 31 ETB Sections 32 – 35 supra 30 Such information must be accurate, clearly presented; conspicuously displayed; capable of being saved or printed; and full information about the goods or services must be provided. 31 Sections 36 – 41 ETB 32 A service provider is not obligated to monitor its processed records unless such obligation is by order of court or arises by contractual obligation. 33 Sections 42 – 45 ETB 34 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p.8 35 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), pp.8-9 36 www.punchng.com/prospects-and-challenges-of-e-commerce-in-nigeria/amp/ 10 September 2017 at 5:22pm 29 73 LEGAL AID OYO JOURNAL OF LEGAL ISSUES    VOL. 1, ISSUE 1, 2017. partner courier service providers and electronic products like eBooks, videos and audios are delivered electronically.37 Although intermediaries such as banks or commercial agents play an important role in both physical world and electronic commerce, there are fundamental differences between both. Whereas physical world intermediaries have a prior legal relationship with one of the primary actors, internet intermediaries38 more commonly have no pre-existing relationship.39 An illustration of the physical world intermediary could be a dispatch officer for Jumia Nigeria 40, the delivery service may either be by contract with individual dispatchers or by a corporate body providing such dispatch officers. Either way, there would be an existing contract stating duties and liabilities of one or both parties. This is hardly the case with internet intermediaries. Recently, in trying to determine what mobile phone I wanted to purchase, I had looked up reviews on gsmarena.com41, the reviews of whatever model that had piqued my interest would influence my decision to purchase such phone. The advantages of an intermediary are numerous, they include42: Reduction of search costs for both providers and the target customers by selectively routing information from providers to customers and predicting demand for new products. Protecting the privacy of the either seller or consumer while the primary actors make pricing and allocation decisions. Provide information on product quality or customer satisfaction that the seller may most likely hoard. It must be noted that Internet Service Providers43 (ISPs) and each communicating party usually have separate legal relationships which are governed by express contracts – the Terms and Conditions – and these terms define the ISP´s liability for loss arising from communication failure44, thereby ISP liability is an exception to the present discourse. Who then bears liability for the actions or inactions of an intermediary that causes loss to one of the primary communicating parties or third party? LIABILITY OF INTERMEDIARIES Any claim that an intermediary should compensate the communicating parties for a transmission failure will need to identify a duty on the part of the intermediary to avoid that failure. In the absence of legislation imposing liability on intermediaries, such a duty can only arise in contract or via the tort of law.45 In light of the discourse above, we understand that no such express contract exist except in the case of ISPs. The liability of intermediaries for information content and services they supply to users on their own account is a matter which can be left to existing laws to determine.46 37 nigerianlawtoday.com/e-commerce-evolution-in-nigeria-opportunities-and-threats/ 10 September 2017 at 5:43pm 38 Internet intermediary may be used interchangeably with Internet/Electronic broker 39 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 89 40 jumia.com.ng 41 Other sites include naijatechguide.com; mymobilespecs.com etc. 42 Resnick P., Zeckhauser R., Avery C., ´Roles for Electronic Brokers´ a paper presented at the 22 nd Annual Telecommunications Policy Research Conference in October 1994. (http://ccs.mit.edu/papers/CCSWP179.html) 43 NTEL, MTN, GLO, 9MOBILE, AIRTEL etc. 44 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 90 45 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 90 46 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 122 74 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Section 36 and 37 of Electronic Transaction Bill 2017 provides for the liability and conditions for liability, respectively, of service providers and vendors but is silent as to the liability of intermediaries. However, the Bill provides in Section 40(1) (e) that: ‘For the purposes of this part, a notification of an offending activity shall be in writing and addressed by the complainant to the service provider or vendor or its designated agent and shall include… the remedial action to be taken by the intermediary or service provider in respect of the complaint…’ The clarification of whether the definition of service provider47 can be used interchangeably with vendor and intermediary, to the best of the author´s knowledge, is not yet tested in Nigerian courts. The author hopes such clarification would happen soon, at the Apex court – Supreme Court of Nigeria. Like the German Teleservices Act and Multimedia Law 1997, the ETA establishes conditions for liability of online service providers and exempts ISPs from liability, unless they initiate the transmission; select the addressee; do not perform the functions in an automated technical manner; modify the electronic record contained; etc.48 Long-term storage49 providers are not held liable when they did not have actual knowledge of illegal information, and upon obtaining such knowledge, would act expeditiously to remove or disable access to such information.50 In France, a hosting provider has a surveillance duty to not infringe third party rights 51 and Swedish Act on Responsibility for Electronic Bulletin Boards 1998 imposes the duty of monitoring activities of subscribers; and removing any infringing material on internet operators. THE JURISDICTION OF THE INTERNET     Aside the uncertainty of identity on the internet, another legal issue arises as to jurisdiction. The general principle of law in the physical world is that the laws are territorial. However, the rules slightly change for regulation of the internet. Hence, where there is no agreement on applicable law or jurisdiction, localization is achieved on the basis of the following factors 52, which include: The habitual residence of the person who is to make characteristic performance;53 The principal place of business of the person who is to make characteristic performance;54 The place where the contract is to be performed;55 The place where the steps necessary for the conclusion of the contract were taken;56 47 Interpretation Section - Section 44 Electronic Transactions Act 2017 SEE Section 36 ETA 2017 49 Section 38 ETA 2017, however, provides for temporary storage of records and does not specify whether it is long or short term. 50 EU Study, ´Liability of Online Intermediaries´, Legal Analysis Of a Single Market for the Information Society, (DLA Piper,2009) p. 5 SEE ALSO Section 37(e) and 38 ETA 2017 51 EU Study, ´Liability of Online Intermediaries´, Legal Analysis Of a Single Market for the Information Society, (DLA Piper,2009) p. 4 – Case: Lacoste/Multimania, Esterel and Cybermedia, TGI de Nanterre, 8 December 1999 52 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 219 53 Article 5, Rome Convention on the Law Applicable to Contractual Obligations 54 Article 4(2) Rome Convention on the Law Applicable to Contractual Obligations 55 Article 8(2)(b) Hague Convention on the Law Applicable to Contracts for International Sale of Goods 56 Article 5(2) Rome Convention on the Law Applicable to Contractual Obligations 48 75 LEGAL AID OYO JOURNAL OF LEGAL ISSUES   VOL. 1, ISSUE 1, 2017. The place where the advertisement or invitation to enter into the contract was received or to which the ´offeror´ directed his commercial activities;57 The place where a branch, agency or other establishment is situated, if the litigation arises out of its activities. Where the transactions are made and concluded over the internet, the place of performance and other factors above are usually not easy to identify. There appears to be an inescapable conflict between choice of law provisions designed to favour the development of ecommerce, by making more predictable the nature of liabilities incurred by service providers and giving priority to consumers, local courts and tribunals.58 This problem has been identified globally, even at the level of the European Union. For example, the Commission to the EC Electronic Commerce Directive59 in its Explanatory Memorandum to its draft Regulation stated that: ‘The Commission has noted the wording of Article 1560 has given rise to certain anxieties among part of the industry looking to develop electronic commerce. These concerns relate primarily to the fact that companies engaging in electronic commerce will have to contend with potential litigation in every member state, or will have to specify that their products or services are not intended for consumers domiciled in certain member states.’61 CONCLUSION A limitation to this study is that the author was unable to access the Electronic Transaction Bill from the website of the National Assembly; instead, what was available was the Report of the Conference Committee on the Electronic Transactions Bill, 2017.62 Electronic markets offer new opportunities for trade and at the same time change the rules of the game of commerce.63 To adequately cater to consumer protection, it is desirable that the law covers all aspects of ecommerce and the liabilities that arise therein. In other jurisdictions like the US, UK and Canada, general laws are enacted to regulate various aspects of cyberspace and specific laws are then enacted by financial institutions, federal agencies, and healthcare bodies to protect their systems and information respectively. In the US for instance, there are industry specific cyber-security regulations; Gramm-Leach-Billey Act, Homeland Security Act and Health Insurance Portability and Accountability Act (HIPAA).64 In Nigeria, the function of prescribing rules and regulations to meet the provisions of the ETB 2017 is the duty of the National Information Technology Development Agency (NITDA).65 For now, there exists no clear cut legislation regulating the many, and necessary, intermediary relationships that exist on the internet. However, it must be noted that to combat the different principles of intermediary liability between countries in the world, there is need for the African Union to come up with a 57 Article 5(2) Rome Convention on the Law Applicable to Contractual Obligations Llyod I.J., Information Technology Law, 6th Ed., (New York: Oxford University Press, 2011), p.457 59 EC Law is an annual comprehensive law listing EU Directives directly implemented by the Act or to be implemented by successive legislative decrees 60 The Electronic Commerce Directive 61 Llyod I.J., Information Technology Law, 6th Ed., (New York: Oxford University Press, 2011), p.455 62 Accessed from placing.org http://placng.org/wp/wp-content/uploads/2017/05/Report-of-the-ConferenceCommittee-on-Electronic-Transactions-Bill-2017.pdf The Senate Committee´s report was preferred to that of the House of Assembly 63 Yarom I., Rosenschein J.S. & Goldman C.V., ´The Role of Middle-Agents in Electronic Commerce´, (2003), IEEE Computer Society, p.20 64 nigerianlawtoday.com/cleaning-up-nigerias-cyberspace-new-cybercrime-act-to-the-rescue/ 11 September 2017 at 11:51am 65 See Section 2(3), 12, 25, 26(6), 29(6) & 42. SEE also the establishing law - National Information Technology Development Agency Act, 2007. 58 76 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. uniform regulation of liabilities of ecommerce parties, including intermediaries. Technology is fast growing in Africa, albeit slower than other continents of the world, but the continent can tackle all issues that may arise from ecommerce transactions, in time, by aligning itself with the European Union (EU) Ecommerce Directives. This may further delineate jurisdictional issues that may arise from internet transactions; and equalize service providers´ obligations in all Member States.66 Ultimately, to settle all conflicts, the global system of laws has to develop new legal concepts and devise techniques for eliminating cross-border conflicts.67 This can be achieved through states´ adoption of international conventions. 66 EU Study, ´Liability of Online Intermediaries´, Legal Analysis Of a Single Market for the Information Society, (DLA Piper,2009) p. 7 67 Reed C., Internet Law: Texts and Materials, 2nd Ed., (UK: University Press Cambridge, 2004), p. 308 77 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. CONFIDENTIALITY AND BEST PRACTICES IN HEALTH SECTOR By Ikaka F. Onakorame LL.B. (Afe Babalola University) B.L. Legal Practitioner at Federal Ministry of Justice, Abuja [email protected] ABSTRACT This article focuses on confidentiality of patient’s information by the health care providers. Although the concept is accepted all over the world, not every country has taken steps to do the needful when it comes to confidentiality of patients´ information. It further seeks to achieve the proper way to keep confidential information of a patient and in what regard should confidential information be transmitted to a third party which would not be considered as a breach. As such, the author is guided by the decisions the foreign courts, opinion of authors, statutory provisions under the Health Act and Medical and Dental Practitioners Code of Medical Ethics in Nigeria. The author submits that, doctors and nurses should uphold the oath which they swore to in order to protect patients´ information and exercise caution when dealing with a patient’s file. KEYWORDS: Confidentiality, healthcare providers, Patient, duty, breach THE CONCEPT OF CONFIDENTIALITY A duty of confidence arises when one person (patient) discloses information to another (healthcare professional), in circumstances where it is reasonable to expect that the information will be held in confidence. There is a fundamental expectation placed on healthcare professionals to keep confidential all information acquired during the rendition of such services to patients. This obligation is depicted in the Hippocratic Oath of the medical practitioners. “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about. “1 “I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I thread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play God.”2 This information will often include details about not only themselves, but also about their parents, spouse(s), children and siblings. It is common practice to have for health records to 1 Hippocratic Oath (Classical Version) http://pbs.org/wgbh/nova/body/hippocratic-oath-today.html accessed 15 June 2017 2 Hippocratic Oath (Modern Version) http://pbs.org/wgbh/nova/body/hippocratic-oath-today.html accessed 15 June 2017 78 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. contain detailed accounts of illnesses or incidents that may be irrelevant to the present condition but necessary for an assessment of the overall health of the client. Patients that are open and candid about the information they give to the health provider usually benefit in the long run even though the information is irrelevant to the present condition. However, this exchange is most likely to occur where the client can be assured that the information communicated to the health professionals will remain confidential.3 In line with this, there is an implied agreement that accompanies the decision to disclose and assures the secrecy of the information. Relying on the international declaration4, a physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died. In the case of X v Y5, Complaint was made that defendant newspapers were to publish confidential medical records of patients suffering from AIDS. An injunction was sought to prevent use of records given to a journalist by a hospital employee. The records related to doctors in general practice. The newspaper said it intended to do so in a way which would not allow identification of the doctors. The injunction was granted and held further that the fact of the confidence in the records meant that the claimant did not have to establish any further prospective damage. Detriment had been established immediately the records were handed over, since this would discourage other patients approaching AIDS clinics. One of the doctors had already been harassed by the newspaper. Once the information had been acquired in breach of contract, it was for the defendants to show good reason for its publication. They had not discharged that burden. Allowing the paper to pick and choose what it published would make a mockery of the section, and the story published during the continuation of the proceedings clearly being in contempt of court. It should be noted however that, preservation of confidentiality is the only way of securing public health. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care.6 Disclosure of confidential information Confidentiality must be tenaciously protected, and both the clients’ and the providers’ best interests must be guarded. Generally, confidential information can only be disclosed with the express consent7 of the patient. However, it may also be legally disclosed to the appropriate third party in two circumstances: • Where there is an overriding public interest • Where there is a legal or statutory requirement (Compulsory by Law) 3 X v Y [1988] 2 All ER 648. The International Code of Medical Ethics (Declaration of Venice 1983) 5 [1988] 2 ALL ER 648 6 Ibid, at 653 per Rose J at 660. 7 Section 26 National Health Act 2014.Aswithallconsent, that for disclosure must be competent, voluntary and informed. If the perso is u a le to o se t to o fide tial i for atio ei g passed o , a d the health are professional believes the person to be a victim of neglect or abuse then the professional should disclose this to the appropriate authority if they feel that disclosure in the est i terest of that perso . In addition, it is occasionally permissible to disclose information without consent for the public good under the National Health Act 2014 4 79 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The National Health Act, 2014 under section 26(2) provides conditions when confidential information can be disclosed, which are: a) b) c) d) User consents to the disclosure in writing A court order or any law requires that disclosure; In the case of a minor, with the request of parent or guardian; In the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative; or e) Non-disclosure of the information represents a serious threat to public health. A failure to keep the confidence is seen as ‘a breach of a tacit agreement between professional and patient’.8 Finn described the obligation of secrecy as serving the interest of protecting ‘the exchange of information in the relationship in which … we expect the maintenance of a high level of information privacy’.9 In addition to the foregoing, there is the right of the client to be an autonomous recipient of healthcare services. An independent patient or client as the case may be, is determined by the control they have over their own information, and their ability to make decisions and disseminate their information at their own discretion.10 THE ETHICAL CONFIDENTIALITY AND PROFESSIONAL RESPONSIBILITY ON The concepts of confidentiality and respect for the privacy of patients are basic tenets of the provision of healthcare by all disciplines of health professionals.11 The obligation to keep information confidential is fundamental to the “health professional–patient relationship” and is incorporated into the codes of ethics and codes of conduct adopted by health professionals of all disciplines.12 Personal information may only be shared with the consent of the individual or with lawful authorisation’. A good relationship between a practitioner and the person he or she is caring for requires high standards of personal conduct. This involves protecting the privacy and right to confidentiality of patients and clients, unless release of information is required by law or by public interest considerations. Consistent with this obligation are the provisions contained in the Good Medical Practice: A Code of Conduct for Doctors in Australia which state:13 Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or in the interest of the public. 8 Montgomery J. Health Care Law.(London: Oxford University Press; 1997), p. 249 Finn P. Professionals and confidentiality , Sydney Law Review, Vol.14 (1992), pp.317-319. 10 It should however be noted that i for atio a out a patie t s o ditio should o l e revealed to relatives or friends with the express consent of the patient. If the patient cannot consent, the healthcare professional will need to decide whether informing relatives and friends is in the best interests of the patient. Giving information over the telephone is a particular concern and should generally be avoided. If there is no alternative, consent should be obtained where possible and precautions must be taken against people obtaining information by deception. The call should be returned before information is disclosed and details should be kept to a minimum. 11 Forrester K and Griffiths D.,Essentials of Law of for Health Professionals, 4th Ed., (Australia: Mosby/Elsevier, 2015), p.90 12 Ibib 13 Ibid, at para 3.4, Confidentiality and privacy, at p. 5. 9 80 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Good medical practice involves: a) Treating information about patients as confidential. b) Appropriately sharing information about patients for their health care, consistent with privacy law and professional guidelines about confidentiality. c) Being aware that there are complex issues related to genetic information and seeking appropriate advice about disclosure of such information. A breach of the professional code of ethics or code of conduct by a health professional may result not only in the initiation of disciplinary proceedings by the professional regulatory Board14 but also raise concerns as to the legal implications of third parties having unauthorised access to information. In the case of HCCC v Burggraaff15 the Health Care Complaints Commission (HCCC) alleged that the registered nurse, without authorisation, had inappropriately accessed medical records through the Clinical Application Portal (CAP) for a reason other than the provision of clinical care or carrying out a health service. The Commission argued that Mr Burggraaff was guilty of professional misconduct in that he had accessed medical records of 183 patients (including paediatric and mental health patients) when he was not authorised to do so and for a reason other than the provision of care or carrying out his role in providing health services. Mr Burggraaff admitted that in many cases his accessing of patient medical records was inappropriate. In its decision of 1 June 2012, the Tribunal found the particulars proved but could not be satisfied as to the precise number of medical records accessed by Mr Burggraaff. It found that there were numerous instances of inappropriate access, the scale of which was substantial. The Tribunal found Mr Burggraaff guilty of professional misconduct. The Tribunal reprimanded Mr Burggraaff and imposed conditions on his registration. CONFIDENTIALITY AND CHILDREN People of young age are owed a duty of confidentiality. However, there are cases where the parents of a child are made aware of the medical issues with regard to that child, especially in a case of life and death. As 18 year olds are presumed to have the capacity to consent 16 for themselves, they are entitled to the same duty of confidentiality as adults. This also applies to competent children under age 18. Thus these individuals can legally demand that their parents are not to be informed of any consultation or its content. Health care providers should encourage children to discuss their condition with the parents but cannot do so themselves without permission from the competent child. However, doctors could only legally inform the parents if it was found that the child was either not competent to consent to or refuse disclosure or that the refusal was not voluntary. The exception to this is when a young person (under 18) is refusing life-saving treatment. The healthcare professional has an overriding duty to inform those with parental responsibility who can then provide consent. 14 Duncan v Medical Practitioners Disciplinary Committee (1986) 1 NZLR 513; HCCC v Guilfoyle (2007) NSWPST 1 [2012] NSWNMT 4 16 “e tio of the Child s ‘ights A t 15 81 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. THE LEGAL OBLIGATION ON CONFIDENTIALITY The confidentiality of patient information is maintained through statutory provisions, common law and equitable principles. Supporting the legislations and the judicial decisions is the constant subject of attempting to reconcile public and private interests in the obligation.17 In reality, the common law denies individual rights to privacy even though patients often assume that a right to such privacy (and an ownership of personal information) is the basis of a legal duty.18In Parry-Jones v Law Society19, Lord Denning MR recognised the existence of a professional obligation of secrecy in relation to that information. The law imposes an implied term to act in the ‘best interests’ of the patient, where the relationship that subsists is contractual in nature. A doctor’s duty to care for his patients includes a duty not to give a third party a certificate as to his patient’s condition, if he can reasonably foresee that the certificate might come to the patient’s knowledge, and if he can reasonably foresee that that would be likely to cause his patient physical harm. The rules of equity (fiduciary duty) impose an obligation to maintain confidentiality, providing ‘the clearest statements of obligations relating to confidential information’.20To establish that the duty of confidentiality has been breached, the following conditions must be satisfied:21 That, I. II. III. The information is confidential; The information was imparted in circumstances importing an obligation of confidence; and There has been an unauthorised use or threatened use of that information. Health legislation at all levels imposes obligations on all health professionals to protect clients´ information from disclosure or unauthorised use in specified circumstances. As a general rule, the legislation can be divided into two categories: first, that which protects the identity of the patient;22 and, secondly, that which protects information about the patient’s medical condition.23 There are exceptions under the legislation including the prior consent of the patient, where information is provided in court as part of criminal proceedings, 24 the provision of information for the purpose of research approved by the institutional ethics committee25 and 17 R v Department of Health; Ex parte Source Informatics Ltd [1999] 4 All ER 185 where the court held that there was a clear public interest in ensuring that patient and client information was kept confidential 18 Abadee A., The medical duty of confidentiality and prospective duty of disclosure: can they co-e ist? , JLM Vol. 3 (1995), p.76. In Bennett B. Law and Medicine. (Sydney: Law Book Co, 1997). pp. 9–20; 19 [1969] 1 Ch 1 at 7 20 Bennett B. Law and Medicine.(Sydney: Law Book Co, 1997). pp. 9–20 21 Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47 per Megarry J. The test has been approved in Australia in Commonwealth of Australia v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 51 per Mason J. 22 Section 28(2) National Health Act, 2014; 23 Section 26(1) National Health Act, 2014 24 See Section 278(4) Administration of Criminal Justice Act, 2015 25 Section 8(1)(b) National Health Act, 2014. It is noteworthy that any patient-identifiable information (including pathology results, X-rays and other imaging) can only be used with the express consent of the patient. Otherwise teaching materials must be fully anonymized. Medical and other healthcare professional students are bound by a duty of confidentiality to the patients they encounter during their training 82 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. that information which is produced in response to the obligations imposed by other legislation.26 LIMITS TO THE OBLIGATION ON CONFIDENTIALITY There are a certain number exceptions which serve to limit the general obligation of confidentiality and, in some circumstances, may require that information be disclosed. The most common exception is when the client consents to others having access to their records or the information contained in that record. Potential difficulties may arise when the consent is equivocal or has been coerced and the ‘nature of the subject matter and the … knowledge of the parties’ relationship will be determinative in a court’s consideration of whether disclosure was justified’.27 People who attend an examination by a medical practitioner nominated by an employer, insurance company or legal representative do so with the knowledge that the intention is for the report to be made available to a third party.28 Alternatively, there is a presumption that consent is implied where it involves a health professional’s access to client records. This access, which is confined to those involved in the care and treatment of the patient, is fundamental to the practice of a health professional caring for a patient as a member of a healthcare team.29 Significantly, effective communication between health professionals may be thwarted by attempts to document patient care in a restrictive format such as ‘care plans’, ‘check lists’ and ‘flow charts’. While this type of format will ensure that the minimum personal and sensitive information is contained in records, it also raises other issues in relation to the adequacy of the documentation.30 In the same way that legislation ensures the confidentiality of certain patient information, there are also provisions that compel disclosure in specified circumstances. Public health legislation requires medical practitioners to notify the relevant government health authority of patients with identified infectious disease.31 Information must also be disclosed as part of judicial proceedings, with privilege attached to the communication between a health professional and a patient.32 Where a health professional refuses to answer questions in criminal proceedings, they may be held guilty of contempt of court. The disclosure of information may also be required where the patient is identified as posing a threat to a third party. CONFIDENTIALITY vs PUBLIC INTEREST The communication between health care providers and patient are considered private. However, in certain circumstances a breach of such confidential information may be justified. In Tarasoff v Regents of the University of California33, a student earlier confessed to a psychologist that he had an obsession towards another student. The psychologist did not inform the university authority of this threat which led to the obsessive student killing the 26 Skene L. Law and Medical Practice Rights, Duties, Claims and Defences.(Sydney: Butterworths, 1998), p. 196 A adee A. The edical duty of confidentiality and prospective duty of disclosure: can they co-e ist? Vol. 3(1995),JLM, p. 77. In Bennett B. Law and Medicine. Sydney: Law Book Co; 1997. pp. 9–20; Forrester K and Griffiths D.,Essentials of Law of for Health Professionals, 4th Ed., (Australia: Mosby/Elsevier, 2015), p.93 28 See section 278, Administration of Criminal Justice Act 2015 29 Duncan v Medical Practitioners Disciplinary Committee(1986) 1 NZLR 513 at 521 per Jefferies J. 30 Forrester, above n 27 31 Quarantine Act, 1926 14 LFN, Cap Q2 (Rev. ed. 2004) , available on the Policy and Legal Advocacy Centre (PLAC) website >>http://www.placng.org/new/laws/Q2.pdf (accessed 15 June 2017) 32 Baker v Campbell (1983) 153 CLR 52; NJ v Aust Red Cross Society, unreported, No. 6498/94, 26 June 1996, Vic SC. 33 7 Cal. d ; The Tarasoff ‘ule Whe a therapist deter i es, or pursua t to the sta dards of prote tio , should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reaso a le are to prote t the i te ded vi ti s agai st su h da ger 27 83 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. woman. The court held that once a psychologist knows that a patient poses a threat of danger or violence to another, they have a duty to exercise care to protect the foreseeable victim. In W v Edgell,34 the court considered circumstances in which the obligation of confidentiality to the patient was overridden by the public interest to disclose. The plaintiff had been confined to a mental hospital after killing several people by shooting. He complained that when he was to be considered for release, his psychiatrist, the defendant had broken his duty of confidence by revealing his concerns about the plaintiff despite the plaintiff have withdrawn his application to a non-secure unit. The court held that, a doctor’s duty of confidence to his patient and the need to preserve general reliance upon that confidence could be overridden where there was a real risk of violence to others. The maintenance of a duty of confidence between doctor and patient was not a matter of private but of public interest, and that public interest was to balance against a similar interest in protecting members of the public against act of violence. The Court of Appeal dismissed the appeal by W, Bingham LJ concluding: The decided cases clearly establish that the law recognises an important public interest in maintaining professional duties of confidence and the law treats such duties not as absolute but as liable to be overridden when there is held to be a stronger public interest in disclosure. The epidemic prevention of Ebola in 2014 by Dr Stella Ameyo Adadevoh35by breaching confidential information of her patient is an example of public interest consideration. CONCLUSION Relying on the Caldicott Report36, concerning the use of patient’s information and guidance for handling such information, the following must be complied with by the healthcare professional: 1. 2. 3. 4. 5. 6. Justify the purpose(s) of every disclosure Do not use patient-identifiable information unless absolutely necessary Use the minimum information necessary Access to the information should be on a strict need-to-know basis Everyone with access to such information should be aware of their responsibilities Everyone with access to such information should understand and comply with the law In practice, adherence to the ethic of confidentiality embraces:37 (a) Protection of patient's medical records; (b) Release of information only following the granting of informed consent by the patient, except where disease notification is required by statute (c) Cryptic utilization of anonymised clinical material for teaching or publication in professional journals; 34 [1990] 1 All ER 835 https://www.theguardian.com/lifeandstyle/womens-blog/2014/oct/20/dr-stella-ameyo-adadevoh-eboladoctor-nigeria-hero (Accessed 15 June 2017) 36 The Caldicott Report 1997 by the Chief Medical Officer of England 37 Rule 44 (RULES OF PROFESSIONAL CONDUCT FOR MEDICAL & DENTAL PRACTITIONERS CODE ON MEDICAL ETHICS IN NIGERIA 2004 35 84 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (d) maintenance of confidentiality in the process of further consultation clear advice to patients on the breach of confidentiality which will necessarily be attendant on their consenting to undergo medical examination for the purpose of employment, insurance, security or determination of legal competence; (f) Discretionary breach of confidentiality to protect the patient or the community from imminent danger; (g) Judicious balance between maintenance of confidentiality for an under-aged patient and simultaneously making available necessary information to the parent or guardian; (h) Breach of medical confidentiality in a court of law upon being directed by the presiding judge, which must thereafter be done strictly under protest; (i) Presentation of a patient at a scientific meeting only following informed consent of the patient and acceptance by the audience to maintain confidentiality. 85 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. HUMAN RESOURCES IN THE NIGERIAN LEGAL SYSTEM: ISSUES REGARDING THE OPTIMAL PARTICIPATION AND PRODUCTIVITY OF WOMEN AND YOUTHS IN THE LEGAL PROFESSION By Oluwadamiloju M. Fatusi LL.B. (Obafemi Awolowo University) B.L. Legal practitioner at Adebayo & Gbadamosi Legal Practitioners [email protected] ABSTRACT The Legal Profession is one of the most revered professions in Nigeria, and its professionals most respected. Every year, the Nigerian law school churns out thousands of new wigs into the legal system, giving the world a façade that the Profession is an overpopulated one in Nigeria. However, research in fact shows that, not only is the Profession grossly underpopulated in the global scheme, but even its participants and players are not optimally utilized to harness the fullness of their personal and professional potential, as well as the potential of the overall system. Women and youths, especially, who are the major players in terms of numbers, are given the short end of the stick; and many have left the profession for other more lucrative professions or other more culturally-adaptive positions due to varying challenges. This essay examines the state, impediments and solutions to the harnessing of Women and Youths as human resource within the Legal Profession. KEYWORDS: Women, Youth, human resources, Nigerian legal system, legal profession INTRODUCTION There is a common assertion that Nigeria in view of its large population of some 155 million people, has abundant human resources, and every major sector of the Country seems to be bustling with the activities of seemingly excessive participants. The legal profession is not different, as it is viewed as one of the most populated professions in the country, judging by the number of graduates churned out by the Nigerian law school every year. However, there seems to be a search for Nigeria’s abundant human resources in the legal profession, as there is anything but optimal use of its participants who are majorly women and young people. It is a well-known fact that a mass of people can simply be a motley crowd- a mere assemblage of persons with a wide variety of motives and intentions, thinking, acting and moving in different directions1. Disorganized, ill-motivated and disempowered, players in the Nigerian legal system, especially women and young people do not seem to be in a position to operate maximally and optimally to improve the Legal system, and in turn, move the nation forward. Since development of the legal system is not simply for the people, but more importantly, by the people, it would be in the interest of the leaders and forerunners of the legal profession in Nigeria to develop coherent strategies for transforming its huge population into the desired level of human resources. O a a P. Looki g for Nigeria s A u da t Hu a ‘esour es , ( a Knowledge Economy, pp.654-663 1 ), Literacy for Sustainable Development in 86 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. This essay discusses the Nigerian Legal system, its players, the roles Women and Young people have to play within the System, Impediments to them playing such much-needed, much-ignored roles and solutions to these impediments. THE NIGERIAN LEGAL SYSTEM The Nigerian legal system is a complex and sometimes difficult to understand system. The phrase, “Legal System”, refers to the totality of laws of a state, country or specified geographical location has, as well as its administration of such system, the court/justice system it operates as well as its personnel in charge of operating it. It is important to note that, a legal system is composed of the above four elements2, and that of Nigeria is not an exception. Nigeria attained independence with a well-established legal system that included a court system and a thriving legal profession in the British tradition. Therefore, in any society, all over the world, as it is in Nigeria too, there are laws rules and regulations and a system of enforcement put in place by which life and human activity are governed in such society. The Nigerian Legal System is characterized by the duality of law including English law, Nigerian law and customary laws, external influences including that of the English and the Arabian, geo-cultural diversity, a system of precedents, a Judicial hierarchy of courts as spelled out by the Constitution, and a fusion of the legal profession (i.e. fusion of training and practice of advocacy and soliciting; and a fusion of training for both intending Members of the Bar and the Bench3. The judicial arm of the government’s personnel, include the following persons; i. ii. The Bench: Consisting of Magistrates and Judges, as well as all persons saddled with the responsibility of sitting over and deciding cases, whether in courts of superior record or otherwise. The higher the hierarchy of the Court, the higher the hierarchy of the bench member. The Bar: Consisting of all practising legal practitioners trained in the legal representation of their clients´ i.e. attorneys and/or solicitors. At the very peak are Senior Advocates of Nigeria. Compared to the world average of 0.75 per thousand ratio of lawyers to the general population, Nigeria’s ration stands at 0.37 per thousand, lesser than South Africa’s 0.40 per thousand4.The current system is terribly overburdened. There simply are not enough lawyers, judges and even courtrooms to accommodate all of the cases that must be handled and matters to be solved. However, even the available personnel in the system are under-utilized and their full potential are not harnessed5. Each year, there is an influx of thousands of new wigs into the legal system, most of them young people and over 50% of them being female6. Despite this, the legal system remains the 2 nouedu.net/sites/default/files/2017-03/POL%20%20211.pdf04 August 2017 at 12:40 AM nouedu.net/sites/default/files/2017-03/POL%20%20211.pdf04 August 2017 at 12:40 AM 4 http://buckleysmix.com/wp-content/uploads/2010/10/Magee.pdf04 August 2017 at 14:15 PM 5 http://buckleysmix.com/wp-content/uploads/2010/10/Magee.pdf04 August 2017 at 14:15 PM 6 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=fbdae64d-c831-461b-933d-2e3819fa3eb8. 10 August 2017 at 18:00PM 3 87 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. same and seems unshaken or relieved in any form from its burden and the overwhelming effects of shortage of manpower7. THE “WOMEN8” IN THE LEGAL SYSTEM: THE PRESENT STATE In Africa, the vulnerable conditions of women are more critical, given lingering gender inequalities, domestic violence, lack of social protection, among other issues, that exacerbate injustice and privation. These and many more limit their ability to reach their full potential. Nigeria is one of the countries where women have faced challenges and discrimination for reasons of their sex and wrongful perception that women belong to a lesser class than their male counterparts; a perception strengthened by traditional and cultural practices9. Be that as it may, Nigeria has continued to develop and implement national strategies and plans for the advancement of women in leadership and managerial roles in the form of amending legislation, policy and institutional framework as it affects the full promotion and protection of the rights of women. The Ministry of Women Affairs (at state and national levels) with key development partners, including civil society organizations, has developed policies, initiatives and strategic plans to engender gender equality and ensure full and effective participation as well as equal opportunities for women in leadership at all levels10. There has been a deliberate increase in the number of women holding leadership positions in the Judiciary11. Specifically, some notable positions that have been held by women include the positions of Chief Justice of Nigeria and head of the Supreme Court, Chief Justice of the Court of Appeal, Chief Judges of High Courts, Commissioners of Police and Directors of Public Prosecution with significant numbers of women justices in superior courts of record. The Oyo state Legal Profession, for example, boasts of about 6 Female High Court Judges and at least 3 Resident Female Senior Advocates of Nigeria. At a practical level, appreciable gains have been recorded in the last two decades and the judicial system is continuously being strengthened to better reflect the invaluable contributions and needs of women. All of this has been possible as a result of intense advocacy as well as growing recognition of leadership potentials and competences, irrespective of gender, and as a result, Women are able to make invaluable contributions that have led to the positive development of Judicial institutions and policies in the country12 It is however acknowledged that a lot still needs to be done in this regard. The International Federation of Women Lawyers (FIDA)13 in Nigeria has made great strides through its state branches in highlighting and championing the causes of women and children in our society. However, the focus has not been on the problems facing women within the legal profession. Perhaps because the Nigerian Constitution forbids discrimination of any sort14, the Nigerian Bar Association does not officially recognise gender diversity as an issue in the Nigerian legal profession. Unlike bar associations in many other countries, the Nigerian Bar Association does not have a diversity committee or any operational diversity 7 Ibid Women, described as Adult Human Female (in comparison to the Word Girl https://en.wikipedia.org/wiki/Woman 05 August 2017 at 13:15PM 9 http://www.vanguardngr.com/2015/10/role-of-women-in-nation-building/. 10 August 2017 at 12:30PM 10 Ibid 11 11 http://www.vanguardngr.com/2015/10/role-of-women-in-nation-building/. 10 August 2017 at 12:30PM 12 12 http://www.vanguardngr.com/2015/10/role-of-women-in-nation-building/. 10 August 2017 at 12:30PM 13 Federacion International De Abogadas or International Federation of Women Lawyers. 14 Constitution of the Federal Republic of Nigeria, www.nigerialaw.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#Chapter_3. 10 August 2017 at 17:00 PM 8 88 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. policies. Notwithstanding this, in 2006, it inaugurated the Women’s Forum with a commitment to providing equal opportunity for the advancement of women in the legal field, with a focus on the advancement of women in their respective practices 15. As of today, even the Legal Practitioners Privileges Committee (LPPC) now has a written policy that gender and ethnic diversity are considerations for the grant of the rank16. Research has shown, from a global perspective that only a small number of female legal practitioners actually practice law in firms17, and a smaller number of those women attain managerial and partnership levels18. It has also shown that there is a gender gap in the legal profession globally, which means that when two people apply for employment; a man and a woman, with identical resumés, the man will earn on average 15 per cent more than the woman19. The same global stereotypes, which especially affect the Nigerian legal system as well, have caused the marginalisation of women thus far, especially in relation to work-life balance. According to Funke Adekoya SAN20, the ratio of female to male persons entering into the Nigerian legal profession is about 60:40. However, as at December 2007, there were only seven female Senior Advocates of Nigeria (SAN) out of the 234 Senior Advocates the country has ever had, which meant that women accounted for only 3.4 per cent of the total number of SANs21. This discrepancy, however, does not seem to be present in the judiciary; in the Lagos Judiciary, for example, as of July 2004, the number of female judges exceeded their male counterparts by a 2:1 ratio22. The ratio at the lower bench is even higher. However, the figures decrease as we move higher up on the judicial echelon: there were 14 female judges out of 60 at the Court of Appeal, and only one (who was the Chief Justice of the Federation, Justice Aloma Muktar) at the Supreme Court. Anecdotal research also indicates that after three to five years at the private bar, a sizeable number of female lawyers have made the switch to the corporate sector as legal advisers and company secretaries23. 15 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=fbdae64d-c831-461b-933d-2e3819fa3eb8. 10 August 2017 at 18:00PM 16 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=fbdae64d-c831-461b-933d-2e3819fa3eb8. 10 August 2017 at 18:00PM 17 Abe Krash, The Changing Legal Profession, www.dcbar.org/for_lawyers/resources/virtual_library/download.cfml?filename=changing_legal_profession, pp27-34. 10 August 2017 at 17:13PM 18 Karen J Mathis, Status of Women in the Legal Profession around the World, 2003, www.womeninlaw.com/newsletter2/mathis.htm. 10 August 2017 at 17:14PM 19 Karen J Mathis, Status of Women in the Legal Profession around the World, 2003, www.womeninlaw.com/newsletter2/mathis.htm. 10 August 2017 at 17:14PM 20 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=fbdae64d-c831-461b-933d-2e3819fa3eb8. 10 August 2017 at 18:00PM 21 Abe Krash, The Changing Legal Profession, www.dcbar.org/for_lawyers/resources/virtual_library/download.cfml?filename=changing_legal_profession, pp27-34. 10 August 2017 at 17:13PM 22 Abe Krash, The Changing Legal Profession, www.dcbar.org/for_lawyers/resources/virtual_library/download.cfml?filename=changing_legal_profession, pp27-34. 10 August 2017 at 17:13PM 23 Abe Krash, The Changing Legal Profession, www.dcbar.org/for_lawyers/resources/virtual_library/download.cfml?filename=changing_legal_profession, pp27-34. 10 August 2017 at 17:13PM 89 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. The rationale for the large number of women in the judiciary and the corporate sector might be that this part of the profession provides more consistent working hours and financial returns at a time in our lives when family responsibilities tend to increase when compared to the work schedule of a lawyer in private practice. Work-life balance issues are often cited as reasons for the move from the private bar to the corporate world or the judiciary, where many women have been able to excel in their chosen careers while maintaining a relatively healthy family life24. Thus we can infer in the absence of a wealth of information that these same issues that have caused the poor representation of female lawyers in managerial and partnership positions globally are still at play in Nigeria. The number of senior female private legal practitioners practicing before our courts is declining. The work hours are long and it can be a highly competitive environment. Most females cannot, in fact, reach the top of their careers without the support of the male figures in both their personal and professional lives due to social and cultural perceptions. The result is that while the judiciary and the corporate legal sector become more ‘feminine’, the top echelon of the private practice bar is still male-dominated25. If the private bar is not to lose the benefits of the large number of women who enter the legal profession each year to the judiciary and the corporate sector, we need to address the reasons why women are voting with their feet. It goes without saying that our gender and cultural background affect our perception of issues and have an impact upon the positions we take and the judgments we make. Clearly where gender diversity is not present, the client gets a ‘monochrome’ view of the possibilities open to it. Therefore, women are highly needed in the legal system. However, as espoused, there are issues/difficulties to their productivity within the profession. Those who have studied the issues will agree that the difficulties that women face arise from their customary roles in society26. As a result many female lawyers find their careers interrupted when they have children, due to childcare responsibilities; and some careers will eventually fade out as a result. In the event that women are able to return to the workforce, they often find themselves in areas of law that do not provide sufficient opportunities for financial reward or the advancement to senior positions that their male counterparts might have been exposed to. THE “YOUTH27” IN THE LEGAL SYSTEM: THE PRESENT STATE The situation of young people in the legal profession is in fact, more pitiable. Although little or no research or statistics exist to highlight this, observation show that young people add little or no productivity to the judiciary in Nigeria. For example, most major improvements in the profession in form of research, landmark cases or bestowing of privileges such as the position of Senior Advocate of Nigeria involve little inclusion of legal practitioners aged 35 years or below. Every young lawyer seems to be on his/her own from the moment he/she is called to the Bar. Usually, there is no introduction to, or attachment to the Nigerian Bar Association and there is a sense of misplacement and loss when he or she finds his or herself amidst the world of legal luminaries and voices, without guidance, in a system which is far different in practice than what he or she learnt in theory. Thus, it is not difficult to find a 24 Ibid Ibid 26 https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=fbdae64d-c831-461b-933d-2e3819fa3eb8. 10 August 2017 at 18:00PM 27 Defined by the Nigerian 2009 National Youth Policy as those within the age bracket 1835.https://www.k4health.org/toolkits/youthpolicy/nigeria-national-youth-policy-and-strategic-plan-action. 05 August 2017 at 14:02PM 25 90 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. young lawyer unenthused, discouraged, having a loss of bearing and in fact, contemplating on quitting the profession without spending, at least, 5 years at the bar. Sometimes, this misalignment and sense of loss of direction can be corrected if such young lawyer is fortunate to serve out his National Youth Service Corps (NYSC) scheme in a vibrant, engaging law firm, or if he is picked up for mentoring and training at such early stage. This is more often, not the case. As such, the young lawyer begins to move either outside or parallel to the legal profession and misses out on the early teething stages. Although the Young Lawyers Forum of the Nigerian Bar Association and the Legal Aid Community Development Syndicate Group28 exist to keep budding lawyers in the nest and warm them during the period of hatching; they seem, on their own, incapable of catering to the professional needs of the budding lawyer, alone. The NBA, as an organization, although has provided varying means of education and grooming for young lawyers such as the Continuing Legal Education scheme29, have not involved young lawyers in the hands-on leadership and running of the organization; neither do many of the more senior lawyers seem very much interested in showing the juniors the ropes on how to make it in the profession; professionally and financially. Thus, the youth seem and feel placed at the backburner of the legal profession; discouraged, frustrated and unutilized; and if the Biblical parlance can be borrowed, “always learning but never coming to the knowledge30” of the legal profession The situation is worse when one considers the pittance that a lot of young lawyers receive 31. It may interest many to know that there are some law firms where young lawyers receive as little as N10, 000 per month or less32. Despite this, we expect the young lawyer to dress well, possess the necessary law reports/books and have confidence. How exactly is a young lawyer not to be discouraged by this in the face of other job opportunities in legal departments of blue-chip companies where he may receive high remuneration for little legal work? Unemployment is thus a menace that needs to be looked into and controlled, as there are more graduates from the Nigerian law school multiple campuses than ever before. Thus, many of today’s young lawyers work in banks and other blue-chip companies as marketers and advertisers, while the profession is still in need of human resources. Young lawyers rarely receive any assistance from the Bar in their formative years33, which is usually the first 5 years of practice; and this is one of the biggest challenges to the modernization and revolutionization of the profession. It has created a group of desperate young men and women who will stop at nothing to survive. CONCLUSION Women and youths form a major part of the Nigerian working population, and its legal system. In this article, we have discussed women and youth as key players in the Nigerian legal system, their state as human resource and the impediments to their optimal productivity 28 Which is an organization of youth corps members in Nigeria, mostly qualified legal practitioners, poised at the professional development of each of its members and encouraging of its members to provide free legal services to the members of the local community 29 Rule 11 of the Rules of Professional Conduct for Legal Professionals 2007 mandates that every legal professional undertake a Continual Legal Education course or programme at least once every year 30 An expression culled from 2nd Timothy 3:7 KJV version 31 http://thenigerialawyer.com/modernising-legal-practice-in-nigeria-challenges-and-prospects. 31 August 2017 at 11:40AM 32 http://thenigerialawyer.com/modernising-legal-practice-in-nigeria-challenges-and-prospects. 31 August 2017 at 11:40AM 33 ibid 91 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. within the system. It is in the opinion of the author that the following serve as solutions to the above mentioned and discussed challenges.         Acknowledging that the problem exists and creating awareness about the issues affecting female legal practitioners and young people; Changing the mind-set that assumes that women who value their families are not serious about the practice of law but rather encouraging female practitioners to take their work more diligently; Implementing flexible working hours and technology within the firm so that women and youth can have a work-life balance that ensures they can stay within private legal practice while also fulfilling family or social roles; Creating of means, by all the governing bodies of the legal profession, for women and young people to advance through the ranks much more easily and speedily; Closing the gender and age-related pay gap and ensuring that people are paid as is appropriate to their qualifications and work alone and not their gender; Encouraging by way of incentive, private law firms to employ, train and invest in female and young employees Encourage through fora such as FIDA, Women’s Forum and Young Lawyers Forums, avenues by which senior accomplished senior members of the judiciary including but not limited to Members of the Bench and Senior Advocates of Nigeria, can encourage, inspire and mentor female lawyers and young lawyers Incentives, also need to be given by such governing bodies to encourage Young lawyers to stay, work and florish in the Legal Profession; rather than run away. Thus, the ball is in the hands of the Nigerian Bar Association, all regulatory bodies of the profession and senior lawyers to grow; maximize and optimize the human resources in the profession, especially of the women and young people. It is also the responsibility of such women and young people to stay open and available for professional development as well as for upward and forward movement in the profession. 92 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. SERVICE OF PROCESSES OUT OF JURISDICTION: THE PECULIAR CASE OF THE FEDERAL HIGH COURT By Ijeoma N. Nwala ACArb. (UK) LL.B (University of Nigeria) B.L. Legal practitioner at J-K. Gadzama LLP [email protected] ABSTRACT Service of processes is an important step in instituting actions in court. An adverse party must be put on notice of a pending suit against him and afforded the opportunity to defend himself in court. This is to ensure fair hearing and ultimately, justice in the matter1. The special status of the Federal High Court as one court with territorial jurisdiction extending over the whole federation has long been determined by the constitution2, the enabling statute3 and in a long line of judicial decisions. The only limitation would appear to be the rule of forum non conveniens and respect for boundaries of the judicial divisions. There is a lingering controversy over the laws applicable as well as the effect of non-compliance with the provisions relating to processes issued by the Federal High Court for service interstate. This article analyses the current position of the law as it relates to service of processes issued by the Federal High Court. It examines the Sheriff and Civil Processes Act, the rules of court and case law with a view to determining the applicable laws and requirements for service of processes of the Federal High Court between states and the effect of non-compliance with any such requirements. Keywords: out of jurisdiction, service, processes, federal high court INTRODUCTION Adjudication is a dispute resolution process before a neutral party. The importance of neutrality in adjudication is essential for bringing any dispute to an end and for maintaining the reposed confidence of the parties in the process. In Nigeria, as in many other legal systems, fair hearing is a fundamental principle in adjudication. Fair hearing is encapsulated in two maxims (often known as the twin-pillars) i.e. audi alteram partem (both sides must be heard) and nemo judex in causa sua (never be a judge in your own case).4 To ensure that the adjudication process results in an apparently fair judgment, an adverse party must be given opportunity to be heard. A party is afforded this opportunity through the service of the originating and all other processes on him.5 Service means to put an adverse party on notice of the claim against him/her and give such a party the opportunity to defend the case. The importance of service has been reiterated in a 1 Achuzia v. Ogbomah [2016] LPELR-40050 (SC), per Okoro, J.S.C. pp.11-12 paras. B-B. Section 249 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. 3 The Federal High Court Act, CAP 134 Laws of the Federation of Nigeria, 1990. 44 See F.C.S.C v. Laoye (1989) 2 NWLR (pt. 106) 652 and Dandume L.G.C. v. Yaro (2011) 11 NWLR (pt. 1159) 191 5 Mark v. Eke (2004) 5 NWLR (pt. 865) 54. 2 93 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. number of judicial decisions.6 In fact, there is a right accruing to a litigant to be put on notice of the existence of a case in court against him as well as other documents in support of the case7. This right is not just a right to be served but a right to be properly served. Therefore, parties to an action must ensure that not only are the processes received by the adverse party and acknowledged but that such service is proper in the eyes of the law. Depending on the court, service of processes is regulated by the rules of the court and/or the Sheriffs and Civil Processes Act8. The procedure to be adopted in effecting service will depend on whether the defendant on whom such service is to be made is within the territorial jurisdiction of the court or not. Jurisdiction refers to the power of a court to hear and determine a suit duly presented before it. It is divided into procedural, substantive and territorial jurisdiction. Procedural Jurisdiction deals with necessary steps for invoking the jurisdiction of a court; territorial jurisdiction is the power of the court to hear and determine matters arising in or involving persons within a defined territory while substantive jurisdiction deals with the subject matter of the suit and whether the court has been vested with the authority to hear and determine same. It must be stated at this point that services of processes is fundamental in conferring procedural jurisdiction on a court. Service within jurisdiction is often straight-forward. When the defendant resides outside the jurisdiction of the court, certain precautions must be taken in order to bring the defendant within its jurisdiction. This is because a court can only exercise jurisdiction over persons and things within its territorial limits and generally, an action should be instituted in the judicial division where the cause of action arose or where the defendant resides or carries on substantial parts of his business.9 There is a divergence of judicial authorities on the applicable rules to service of processes in relation to proceedings before the Federal High Court. This became even more apparent after the amendment of the 1976 Federal High Court (Civil Procedure) Rules in 2000 and again in 2009. Most noble judges have held and lawyers and jurists have argued that the provisions of the Sheriff and Civil Processes Act would apply to processes which originate in one judicial division of the Federal High Court for service in another division while others have argued against its application. This work examines the current position of the law in the light of judicial authorities regarding the service of processes issued by the Federal High Court between states as well as the effect of non-compliance with the provision of the law. THE FEDERAL HIGH COURT AND TERRITORIAL JURISDICTION The Federal High Court was created in 1973 as the Federal Revenue Court under the Federal Revenue Act, (1973 No. 13), now the Federal High Act. It was renamed the “Federal High 6 See Craig v. Kanssen (1943) 1 All E.R. 108, p. 113 Per Lord Craig, Skenconsult vs. Ukey (1981) 1 S.C 6 per Nnamani, JSC, p. 22 (para B), Achuzia v. Ogbomah [2016] 11 NWLR (Pt. 1522) 59 at 81 per Kekere-Ekun, J.S.C. paras. G-H 7 Odu’a Investment Company Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1. 8 Cap S6, Laws of the Federation of Nigeria, 2004. It will be shown that this Act is not of general application but is limited to certain courts. 9 In relation to the Federal High Court, see Order 2 Rule 1(9) of the Federal High Court Rules, 2009. 94 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Court” by Section 228 (1) and 230 (2) of the Constitution of the Federal Republic of Nigeria, 1979. From its inception, there have always been controversies over its jurisdiction.10 Territorial jurisdiction is fundamental to the validity of any process.11 The territorial jurisdiction of the Federal High Court is special in nature. This is because unlike the state high courts, there is only one Federal High Court i.e. a high court of the federation, operating through judicial divisions.12 Therefore, the Federal High Court has territorial jurisdiction throughout the whole federation just like a state high court has jurisdiction throughout the state but still respects the territorial boundaries of each division but a judicial division of the Federal High Court sitting in a state cannot be regarded as a court of that state. This position is further strengthened by the enabling Act. Section 19 (1) and (2) of the Federal High Court Act13 provides as follows; (1) The Court shall have and exercise jurisdiction throughout the Federation, and for that purpose the whole area of the Federation shall be divided by the Chief Judge into such number of Judicial Divisions (not less than four) as he may, from time to time, specify and he may designate any such Judicial Division or part thereof by such name as he may think fit. (2) For the more convenient dispatch of business, the Court may sit in any one or more Judicial Divisions as the Chief Judge may direct, and he may also direct one or more Judges to sit in any one or more of the Judicial Divisions. Furthermore, the Federal High Court (Civil Procedure) Rules, 2009 define out of jurisdiction to mean ‘out of Nigeria’ for the purpose of service. 14 Therefore, service from one state to another in Nigeria will no longer mean service out of jurisdiction. It is important to note that this provision was not contained in the pioneer Federal High Court (Civil Procedure) Rules of 19 76 but was only introduced in the Federal High Court (Civil Procedure) Rules, 2000. REQUIREMENTS FOR SERVICE: A TIMELINE OF DIVERGENCE The Sheriff and Civil Processes Act (“SCPA”) is an Act of the National Assembly which came into force in 1945. Service of processes is governed by Part VII of the SCPA particularly Sections 96- 99 which provide as follows15: 96. Writ of summons may be served in any part of Federation (1) A writ of summons issued out of or requiring the defendant to appear at any court of a State or the Capital Territory may be served on the defendant in any other State or the Capital Territory. (2) Such service may, subject to any rules of court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Capital Territory in which the writ was issued. 97. Endorsement on writ for service outside a State 10 Both substantive and procedural jurisdictions. The substantive jurisdiction of the federal high court has always been in conflict with that of the high court of states. 11 Wuyep v. Wuyep (1997) 10 NWLR (Pt.523) pg.l54. 12 See Section 249(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. This was also the provision of Section 228 of the Constitution of the Federal Republic of Nigeria, 1979 , then applicable 13 Law of the Federation of Nigeria, 2004. 14 See Order 6 Rule 31. 15 For the purpose of this Article, Section 98 will not be considered. 95 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Every writ of summons for service under this Part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) "This summons (or as the case may be) is to be served out of the .....................................State (or as the case may be) ......................................and in the ..................................................................State (or as the case may be)." 98. Concurrent writs A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent. 99. Time limited for answering to summons The period specified in a writ of summons for service under this Part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.” Therefore, from these provisions, a court to which the Act applies can issue a writ for service out of/outside the state in which it was issued. However, it must comply with its rules made under the Act; make the necessary endorsement and give the defendant at least 30 days to appear before the court. To which courts do the Act apply? In this part of the Act, the word ‘court’ is defined to mean a court to which parts III, IV, V, and VI of the Act apply unless the context otherwise requires16. Out of the parts listed, only in Part III is ‘court’ defined to include “the High Court of the Federal Capital Territory Abuja or of the States.”17 The definition of court in this Part must be contrasted with the definition of court in Part II of the Act, wherein ‘court’ is defined to include “a High Court and a magistrate court” simpliciter.18 Can a Federal High Court be regarded as a high court of a state? It would be absurd to overlook the intentional distinction made by the law makers in interpreting this part of the Act. Although at the time the SCPA was passed, there was no Federal High Court, nevertheless, there were other courts in existence at the time19 to which it was not extended. This makes clear the intention of the law makers to limit the application of the Act. It is submitted that where the words of a statute are clear and unambiguous, effect must be given to their ordinary meaning without recourse to any other consideration.20 Therefore, whereas Part II of the Act21 may apply to the Federal High Court, there is a difficulty in stretching the application of the Parts III, IV, V, VI and VII to the Federal High Court. 16 Section 95 of the Act. Section 19. 18 Section 2. 19 The Supreme Court, Court of Appeal etc. 20 Rabiu v. The State (1980) 8-11 S.C. 130 21 Under Part II, Section 2 defines court to mean a high court or magistrate’s court. The federal high court is a high court. See Section 1 of the Federal High Court Act. 17 96 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. In Jumosima Wari & Ors v. Mobil Inc. of America22 and NIMASA v. Noble Drilling Nigeria Limited23 the Court of Appeal held that although it was of the opinion that SCPA does not apply to the Federal High Court it was however bound by the decision in M.V. Arabella v. Nigeria Agricultural Insurance Corporation (M.V. Arabella),24 wherein the Supreme Court held that the provisions of the SCPA applies to the Federal High Court. Interestingly, in arriving at this conclusion in M.V. Arabella the Supreme Court relied on the heading of the SCPA as well as Section 19(1) of the said Act which it misquoted in the following words: “In section 19(1) of the Act, which is the interpretation section, ‘Court’ is defined as ‘includes a High Court and a Magistrate Court’”.25 With due respect to the Learned Justices, this is not the provision of Section 19(1) of the SCPA but rather it is the provision of Section 2 of the Act which does not govern the interpretation of Part VII of the Act in question. In the more recent case of C.B.N. v. Interstellar Communications Ltd. & 3 Ors (Interstellar), the Court of Appeal26 held that the SCPA does not apply to the FHC. Assuming but not conceding that the SCPA applies to the Federal High Court, in interpreting the said provisions of the Act as well as the Rules of Court, there has still been a divergence of judicial authorities and opinions on the effect of these provisions on processes issued by the Federal High Court for service interstate. Recently, with the coming into force of the new Federal High Court Rules, the position of the law has changed. Some recent decisions on these requirements will be analysed below. 1. Service in any Part of the Federation, Subject to the Rules of Court: Leave of Court The requirement of leave of the judge for service can be traced to the rules of various courts. It is not a requirement of the SCPA. Section 96 of SCPA merely provides that service may be effected between states subject to the rules of the courts. The Federal High Court (Civil Procedure) Rules, 2009 make provisions in Order 6 for service of processes. This Order is divided into three (3) parts. Part A deals with service within jurisdiction; Part B deals with service out of jurisdiction while Part C deals with general provisions including interpretation27 for the Order. Presently, the requirement for leave to serve originating processes under the 2009 Rules is found in Order 6 Rule 12 (Part B) and it provides as follows: (1) Service out of jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or Judge in Chambers… In Order 6 Rule 31, out of jurisdiction is defined to mean out of Nigeria. Therefore, under the present rules of the Federal High Court, leave is not required to issue any writ and it is certainly not a requirement for service within Nigeria.28 In M.V. Arabella v. Nigeria Agricultural Insurance Corporation29, the apex court in interpreting Order 10 Rule 14 of the Federal High Court (Civil Procedure) Rules 1976, which 22 (2013) LPELR- CA/C/41/2009 per Garba JCA, pp. 51-58, paras D-F. (2013) LPELR- 22029 (CA), Per Iyizoba JCA, pp. 20-21, paras D-A. 24 2008) 11 NWLR (pt. 1097) 182. Although, in M.V Arabella, this issue was not directly addressed in the lead judgment of Ogbuagu, JSC, but rather in the concurrent judgment of Akintan, JSC at 220-221 paras G-B. 25 See p. 220, para H. 26 (2015) 8 NWLR (1462) 456, per Abba Aji, JCA, pp. 492-495 paras D-B. 27 Order 6 Rule 31, Federal High Court (Civil Procedure) Rules, 2009. 28 Nuhu v. Bwacha (2016) LPELR-CA/YL/105/2015 per S.T. Husaini, JCA pp. 41-45, paras F-A. 29 Supra. 23 97 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. provided that the leave of court shall be obtained to issue and serve a writ out of jurisdiction, held that the requirements of the Rules of Court as to consent is mandatory and must be complied with regardless of the provisions of Section 19 (1) of the Federal High Court Act and Section 228 of the Constitution of the Nigeria, 1979 (then applicable). It is submitted that M.V. Arabella is no longer good law on the issue of leave for service as it was decided based on the old Rules of the court. The current rules do not contain any procedure for service between states and such requirements must not be imported. Although some lawyers have argued and some judges have held that M.V. Arabella remains the law until set aside, the Court of Appeal in Interstellar and again in Nuhu v. Bwacha30 have held that consent is no longer a requirement for the issuance and service of processes from the Federal High Court for service interstate. 2. Endorsement This is a requirement of the SCPA.31 The courts have held that the requirement of endorsement is a mandatory provision of the law which ought to be complied with. Interestingly, the SCPA does not use the phrase ‘outside/out of jurisdiction’. Therefore, whenever a writ is issued for service outside the state in which it was issued, it must comply with the requirements of Section 97 of the Act. This is because this section does not concern itself with whether or not the process is being served within or outside jurisdiction but merely with the fact that it is for service outside the issuing state. In Jumosima Wari32 and in Nuhu v. Bwacha33 the court held that it was bound by the decision of the apex court that the SCPA applies and that this requirement for endorsement was mandatory. 3. Time for Answering Summons. Section 99 provides that the period required for answering a writ served on a defendant outside the jurisdiction of the court should not be less than 30 days. This requirement should no longer be in controversy because the stipulated period for answering all writs and summons issued by the Federal High Court under the Rules is 30 days. 34 Therefore all writs are expected to comply with this provision by default. NON-COMPLIANCE: VOID OR VOIDABLE? Having looked at the requirements for service, what is the effect of non-compliance with these provisions? There is a distinction between issuance of a writ and service of same and a writ may be valid while its service suffers from defect. 35 There is also a distinction between non-service of a court process and improper service of same. Non-service of an originating process on a defendant results in severe consequences because it goes to the root of the matter to affect the jurisdiction of the Court.36 It means that the affected party was denied the right to be heard. Therefore failure to serve robs the court of jurisdiction in a matter and the proceedings that follow will be a nullity.37 30 Supra, note 24. Section 97 above. 32 Supra. 33 Supra.. 34 See Civil Form 1, Appendix 6, Federal High Court Rules, 2009. 35 Adegoke Motors Ltd.. v. Adesanya (1989) 3 NWLR (pt. 109) 250 36 Skenconsult v. Ukey (1981) LPELR–SC.50/1980, at 21-22 per Nnamani JSC. See also, Aba South L.G. v. Nwairobi (2008) 6 NWLR (pt. 1084) p.503 at 528. 37 Achuzia v. Ogbomah supra, per Okoro JSC P. 11 paras. B-F. 31 98 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. On the other hand, where there is service but there is non-compliance with the rules of court or any other law in carrying out the said service, the question that arises is that of defective service which does not affect a validly issued writ. The locus classicus on the point is the case of Adegoke Motors v. Adesanya38 where the Supreme Court per Chukwudifo Oputa, JSC held that where the writ is validly issued, a defect in service renders the writ voidable and the defendant can take steps to set aside same otherwise there would be a waiver which would validate the otherwise voidable writ.39 In Odu’a Investment Ltd. v. Talabi40 the apex court sitting as a full court reviewed its past decisions41 on the effect of non-compliance with the provisions of the SCPA and when there can be a waiver. The Supreme Court held that failure to comply with the provisions of the SCPA will render the writ and/or the service thereof voidable and the affected party must take steps immediately to have same set aside.42 In contrast, in M.V. Arabella, the apex court held that non-compliance with the provisions of the SCPA renders the writ void as it is not a mere irregularity but a fundamental one which renders the writ incompetent. In SPDC v. Onyeriuka43 and NIMASA v. Noble Drilling Nigeria Ltd.44 the Court of Appeal again following the decision in M.V. Arabella held that non-compliance with the SCPA would deprive the court of jurisdiction to hear the suit and no amount of waiver can confer jurisdiction on the court. Interestingly, the issue of noncompliance was raised for the first time on appeal in these two cases. 45 In Nuhu v. Bwacha, the writ in question was issued by the Federal High Court sitting in Abuja for service in Abuja but the Court subsequently transferred the matter to the Taraba State Judicial Division of the Court before service in fact was effected. The position of the court was that non-compliance with the SCPA should have rendered the writ void but compliance was not necessary in the circumstances of the case since it was issued in Abuja originally for service in Abuja. In Interstellar, the Court of Appeal held that non-compliance with SCPA will not render the writ void. In Obasanjo Farms (Nig.) Ltd. v. Muhammad46, the Court of Appeal refusing to follow the decision in M.V. Arabella, held that Odu’a Investment being a decision of the full court will take precedence over the decision in M.V. Arabella and thus non-compliance with the SCPA was held to render the writ voidable and not void. It is humbly submitted that the writ will be only affected in instances where such requirement clearly affect the writ itself. Thus, a distinction must be made between the decision in M.V. 38 Supra per Chukwudifo Oputa, JSC. Also in Skenconsult vs. Ukey although the Supreme Court per Nnamani JSC, stated that non-compliance with Section 99 of the SCPA would render the writ a nullity. However, the real contention was that the court, as a result of non-compliance went ahead to hear the matter in the absence of the defendants. Therefore, not only did the apex court find that there was non-compliance with the SCPA, there was also non-service of the motions pursuant to which Orders of the lower court were made and consequently; the defendants were not present in court and had no representation when the orders were made. These were the basis for its decision. 40 Supra. 41 These decisions in Nwabueze v. Okoye (1988) 4 NWLR (pt.91) 664, Skenconsult v. Ukey (supra), NEPA v. Onah (1997) NWLR (pt. 484) 680, Adegoke Motors Ltd.. v. Adesanya (supra) were thought to have been in conflict. 42 See Odu’a Investment Ltd v. Talabi, supra and Feed & Food Farms (Nig) vs NNPC (2009) LPELR- SC. 244/2003. 43 (2016) LPELR-41309 (CA) per Ige, JCA, pp. 37-50, paras A-A. 44 Supra. 45 See also Drexel Energy & Natural Resources Ltd. v. Trans International Bank Limited (2008) 18 NWLR (pt. 1119) 388 at pp. 436-437. 46 (2016) LPELR- 40199 (CA), per Abiru JCA, pp. 27- 30, paras E-E. 39 99 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Arabella where the rules of court then applicable clearly provided that leave was required for the issuance and service of a writ outside the jurisdiction of the court and the current position under Federal High Court (Civil Procedure) Rules, 2009 where there is no such requirement for issuance of the writ. Therefore, the consent required in M.V. Arabella was of a fundamental nature in that it affected the validity of the writ issued and not just its service. The writ will not be affected where service alone is defective. Further, the SCPA does not concern itself with the writ but with service thereof. Section 97 which requires endorsement on the writ does not confer any form of validity on the writ outside its other contents especially in circumstances where the Federal High Court already has both substantial and territorial jurisdiction in the matter. This requirement must not be held to be so fundamental that non-compliance will render a validly issued writ as void. "I am always bothered about the level of mockery the law would be subjected, when a party, who has been served with the processes of Court, comes to the same Court to seek nullification of the service on him of the process, alleging improper issuance/service of process…"47 In Obasanjo Farms (Nig.) Ltd. v. Muhammad48, the Court of Appeal per Habeeb Olumuyiwa Abiro, JCA held as follows: “Procedure for invoking the jurisdiction of Court should not be confused with the authority of the Court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters before it are matters of procedure regulated by procedural rules.” As rightly held by the Supreme Court in the Talabi’s case, “I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court, to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit”49 It is humbly submitted that proper service is a matter of procedural jurisdiction which does not affect the substantive jurisdiction of the court. However, whereas the right to service is a fundamental rights issue, the right to proper service is a statutory right which accrues to the individual and in which the state has no interest.50 Therefore, it may be waived and once waived, the issue of defective service cannot be raised to frustrate proceedings. 51 Defective service should not be a reason to drag out a matter in court for years on end and to defeat justice.52 47 S.P.D.C.N. Ltd v. Registrar of Business Premises, Abia State (2016) NWLR (Pt. 1496) 326 at p. 348 para B-C (2016) LPELR- 40199 (CA). 49 Odu’a Investment v. Talabi, supra at p. 52 para D. 50 See Ariori v. Elemo (1983) 1 SCNLR 1; (1983) ANLR 1 and Odu’a Investment Company Ltd. v. Talabi. 51 Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 @ 219. See also Feed & Food Farms v. NNPC, (supra) per Oguntade JSC, at pp. 28-30. 52 See Odom v. PDP (2015) 6 NWLR (pt. 1456) 527 at 555-556 paras G-B per M.D. Muhammad. 48 100 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. CONCLUSION It is submitted that the consent is no longer a sine qua non for the issue and service of any writ by the Federal High Court within Nigeria. It has been argued by some writers that until the apex court revisits these issues and overrules itself, the decision in M.V. Arabella remains the law. It is submitted that where the facts/laws can be distinguished, the doctrine of judicial precedent will not be violated and a decision of the High Court is potent and binding on the parties until set aside. Also, a new law can override the decision of apex court. Nonetheless, these issues still call for review by the apex court: a. b. c. d. e. Is the SCPA really applicable to the Federal High Court? Can a Federal High Court sitting in a State be regarded as a court of that state? What is the effect of non-compliance with Section 97 of the SCPA? Can such non-compliance be regarded as fatal to the suit? Is there a territorial limit to the jurisdiction of the Federal High Court and what is the effect of a community reading of Section 249 of the Constitution, Section 19 of the Federal High Court Act and Order 3 rule 31 of the Federal High Court Rules on processes issued for service interstate? The facts of each case are peculiar and courts, in maintaining certainty of the law, should not allow technicalities to erode justice. Parties to an action who intend to frustrate proceedings have used this issue of defective service to delay and detract from the substance of the matter. As a matter of practice, some lawyers still apply for leave to issue and serve processes of the Fedral High Court, out of the state, despite there being no legal backing for this practice all in an attempt to be on the safe side. Some courts still insist on formal applications for leave and go ahead to set aside writs for non-compliance with the requirement for service give or take a few provisions. It is hoped that the apex court will revisit their previous decisions on the issues raised in this paper, with a full panel, with a view to settling the looming controversies and to restore certainty in the judicial process. 101 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. THE SALOMON PRINCIPLE: OF WHAT RELEVANCE IN TODAY’S BUSINESS WORLD? By Oluwafemi A. Ojosu LL.B. (Afe Babalola University), B.L. Legal practitioner at Tunde and Adisa Legal Practitioners [email protected] ABSTRACT The corporate personality principle, as is examined in this paper, was developed in the locus classicus case of Salomon v. Salomon. It posits that upon incorporation, a company becomes an entity separate and distinct from its members. This principle has played a very fundamental role in the development of company law as we know it today due to its consistent application by the courts albeit with certain tergiversations as is common with principles developed under the Common Law. Of recent however, its relevance to the modern business world has been questioned. Thus, creating within the legal community the quagmire; ‘is the Salomon Principle still relevant in today’s business world?’ This paper examines the history of the Salomon Principle, its consequences, advantages and disadvantages for business, and the trend in its application with the conclusion that “YES”; the doctrine of corporate personality as established in the case of Salomon v Salomon still retains its relevance in today’s business world. Key Words: Salomon v. Salomon, corporate personality, incorporation, lifting the veil, business INTRODUCTION Historically, prior to the formation of companies, the common law principle of corporate personality had always been in existence although not in the form we now know it. It began as a medium through which legal personality was conferred upon religious groups most notably the church for the sole purpose of surmounting the issue of succession and ownership which usually arose on the passing away of one religious leader with the effect that the head of the institution would be regarded only as a custodian of the group property without having a personal right to it. This was the beginning of the corporation. The religious group was regarded as the ‘person’ and therefore, was conferred with the power to hold land and property and also defend same in its own name which did not in any way affect the personal properties of the members.436 NATURE OF CORPORATE PERSONALITY A company as has been defined may be regarded as an association of two or more persons for some commercial objective usually economic which the law has conferred with corporate personality and recognizes as such.437 436 437 Aina K., Law 533, Company Law and Business Associations 1, pp 3-4 As defined Ohuorugo C., Lecturer, AfeBabalola University, 2014/2015 session 102 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. By corporate personality it’s meant, the attribute conferred on a company upon incorporation that distinguishes it as an entity separate and distinct from its members. This distinction is succinctly captured by the Companies and Allied Matters Act (2004) (hereinafter referred to as CAMA) when it states in Section 37 that “As from the date of incorporation mentioned in the certificate of incorporation, the subscriber of the memorandum together with such other persons as may, from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company including the power to hold hand, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as mentioned in this Act.”438 In other words, when a company receives a certificate of incorporation it has a 'separate legal personality' distinct from its promoters, directors, members, and employees; in law, the company becomes a legal person it its own right; with the consequence that a corporate veil is cast, separating these parties from the company itself.439 This separate legal personality of the company has been described as the ‘most pervading of the fundamental principles of company law”. It constitutes the bedrock principle upon which company is regarded as an entity distinct from the shareholders constituting it.440 This doctrine though as is worthy to be noted is a legal fiction introduced for the convenience of the company in making contracts, in holding property, in suing and being sued, in management of its affairs and to preserve the limited liability of its shareholders. It was chiefly and still is for the purpose of clothing an association of natural persons with the characteristic of a distinct entity at law that corporations were invented and in use. 441 As has been previously espoused above, traditionally, a corporation being a person in law is separate and distinct from its members. It was however not clear whether this principle also applied to Incorporated Joint Stock Companies until the House of Lords decision in the case of Salomon v Salomon & Co Ltd(1897) A.C. 22 The case of Salomon v. Salomon is universally recognised as the authority which eloquently propounded the principle that a corporation is a separate legal entity. It created the idea that companies operate behind a metaphoric ‘veil of incorporation’ which separates members from the company and permits the company to be completely independent, with rights and duties distinct from those possessed by its shareholders, directors and employees. The company is deemed an artificial legal person with independent existence. As Lord Macnaghten put it: “The company is at law a different person altogether from the subscribers…”442 In that case, (i.e. Salomon v. Salomon) the facts were as follows… 438 Section 37, Companies and Allied Matters Act 2004 Singh S., Lifting of corporate veil with reference to leading case,http://artismc.com/index.php/blogs/view/55/221/December 17, 2014 at 1:14 pm 440 Ibid 441 Barnes K. D., Cases And Materials On Nigerian Company Law, (Ile-Ife, Nigeria,O.A.U Press Ltd, 1992)p. 62. 442 Salomon V Salomon (Supra) 439 103 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. Salomon a leather merchant and shoe manufacturer had traded on his own for over thirty years. While his business was solvent he formed a company called "Aron Salomon and Company Limited" and sold his business to this company. The Companies Act 1862 (UK) required seven subscribers and Salomon, his wife and five children each subscribed one share to satisfy the statute. Salomon valued his business at 39,000 pounds which appeared to be an inflated figure. However instead of taking cash for the sale of the business, Salomon took 20,000 fully paid one pound shares in addition to debentures to the value of 10,000 pounds. These debentures were secured by a floating charge. The balance of the purchase price remained as an unsecured debt. Soon after the company came into financial difficulties and needed an injection of funds. In response, Salomon borrowed 5000 pounds from Broderip which he advanced to the company. To obtain this loan, Salomon had his debentures cancelled and reissued to Broderip, but on terms that he should obtain a residual benefit after the debt was discharged. Payments to Broderip fell into arrears and Broderip enforced his security. The company's liquidation followed. After Broderip was paid, there remained a balance of indebtedness secured by the debentures. Salomon claimed his reversionary entitlement. However if this claim was satisfied there would be no funds left to pay out the other unsecured creditors. The liquidator attempted to resist the claim by arguing that the debentures were invalid on the ground of fraud. Decisions High Court At first instance, Vaughan Williams J, the trial judge; agreed with the reasoning of the liquidator that Salomon’s debentures were invalid on the ground of fraud. He further held that all the subscribers of the memorandum (except Salomon) held their shares as mere nominees because Salomon’s motive in forming the Company was to use it as an agent to manage his business for him. The company he opined was just Mr Salomon in another form; therefore Salomon as principal had to indemnify the company's creditors personally. 443 Court of Appeal The Court of Appealconfirmed Vaughan Williams J's decision against Mr. Salomon, though on the grounds that Mr. Salomon had abused the privileges of incorporation and limited liability, which Parliament had intended only to confer on "independent bona fide shareholders, who had a mind and will of their own and were not mere puppets". He was not alone in this reasoning as Lopes LJ and Kay LJ variously described the company as a myth and a fiction and said that the incorporation of the business by Mr. Salomon had been a mere scheme to enable him to carry on as before but with limited liability.444 Thus it was held by the court that Salomon was a trustee for the company which was his mere shadow. 443 444 The case at first instance was known as Broderip V Salomon [1895] 2 Ch. 323 ibid 104 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. House of Lords Salomon appealed to the House of Lords which rejected the lower courts' rulings The House of Lords in unanimously overturning this decision, rejected the arguments from agency and fraud. They held that there was nothing in the Act about whether the subscribers (i.e., the shareholders) should be independent of the majority shareholder. The company was duly constituted in law and it was not the function of judges to read into the statute limitations they themselves considered expedient. From this judgment of the House of Lords, the concept of "a company" was seen as a legal entity in its own right. The very heart of separation and independence from those involved in the company's management and structure was established as a result of Salomon's case. If creditors dealt with the company it was to the latter to which recourse had to be made, not to those who were behind the entity. Over the years that followed Salomon, this became known as the “veil of incorporation”445time however, would severely erode this traditional perception as would be seen later in the course of this paper. THE CONSEQUENCES OF SALOMON V. SALOMON Following the decision of the House of Lords in Salomon’s case, it was established that upon incorporation the company acquired certain attributes such as a separate legal personality, limited liability, the right to sue and be sued amongst many others which may or may not be advantageous to its existence as a going concern. Examined below are some of these consequences of incorporation. Advantages for Business (a) Separate legal personality The fundamental attribute of corporate personality from which indeed all the other consequences flow is that the corporation is a legal entity distinct from its members. Hence it is capable of enjoying rights and of being subject to duties which are not the same as those enjoyed or borne by its members.446 The authority on this principle is the decision of the House of Lords in Salomon v. Salomon where Lord MacNaghtenopined that “The company is at law a different person altogether from the subscribers to the Memorandum and, although it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act. “447 445 This phrase describes the fact that the ownership and management of a corporation are distinguished, and the fact that the members of the company are separated from the trading relationships entered into by the company in the outside world. Indeed the phrase is appropriate because, functioning very much like a veil, the membership of the company is revealed but cannot be touched by third parties 446 Gower & Davies, Principles of Modern Company Law,9th ed. (Sweet & Maxwell, 2012) p. 35 447 [1897] AC 22 at 51. 105 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (b) Limited liability It follows from the fact that above that if a corporation is a separate person, then its members are not liable for its debts. Consequently, in the absence of express provisions to the contrary, the members will be completely free of any liability. 448It should be noted that limited liability applies only to members. A company does not enjoy limited liability in its dealings with outsiders. (c) Perpetual succession One of the obvious advantages of an artificial person is that it is not susceptible to "the thousand natural shocks that flesh is heir to". It cannot become incapacitated by illness, mental or physical, and it has not (or need not have) an allotted span of life. This is not to say that the death or incapacity of its human members may not cause the company considerable embarrassment; obviously it will if all the directors die or are imprisoned, or if there are too few surviving members to hold a valid meeting, or if the bulk of the members or directors become enemy aliens.449450 (d) Transferability of shares Incorporation, with the resulting separation of the business (owned by the company) from the shares (owned by its members), greatly facilitates the transfer of members interests.451 Indeed, it is one of the objects upon which a company is found - that shares should be capable of easy transfer. This notion is well expressed in Section 82 Companies Act (2006) where it provides that “the shares or other interest of any member shall be movable property, transferable in the manner provided by the articles of the company.” This ability to transfer shares, enables the company to continue functioning as a going concern as ownership of shares held by a member who no longer desires to be one can be easily transferred to another individual who wishes to be thus reinforcing the company’s perpetual existence. (e) Property Another consequence of incorporation is the ability of a company to own property separate and distinct from that of its members. The property of a company is vested in it as a corporate body and held in its own name; and no member, not even all the members, can claim ownership of any asset of company’s assetsas they only own shares in the company. This position is well elucidated in Short v Treasury Commissioners (1948) 1 KB 116 122where Evershed LJ opined that "Shareholders are not, in the eyes of the law, part owners of the undertaking. The undertaking is something different from the totality of the shareholding." 448 ibid Gower, p. 39 Daimler Co Ltd. v. Continental Tyre and Rubber Co. 450 ibid Gower p. 44 451 ibid Gower, P. 46 449 106 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (f) Capacity to sue and be sued. The company as an incorporated body with separate legal personality can sue and be sued in its own name. This is a consequence of its status at law as an artificial person having both the rights and duties accruable to a natural person. The advantage that this consequence of incorporation confers upon the members of the company is that it shields them from litigation which ordinarily in their personal capacity, they would been liable to; it however offers a disadvantage in the sense that where the company is being used a s a vehicle to perpetuate illegality, it may be sued and in so doing, have the veil of incorporation which was drawn on it by registration lifted by the courts in order to ascertain the true state of things. Disadvantages for Business Khan Freund aptly described as “calamitous” to the growth of company law.452 Examined below are some of these disadvantages. (a) Helps to Facilitate the evasion of legal obligations The concept of limited liability attracts small traders to the corporate form not because it represents an effective device with which to raise capital, but because it gives them access to an avenue via which to escape the "tyranny of unlimited liability”.453 The principle is that a limited company's creditors must look at the capital, the limited fund, and that only. Limited liability discourages shareholders from monitoring and controlling their company's commercial ventures. The company's creditors bear the burden of the risks inherent in dealing with limited liability companies. (b) It is an ideal vehicle for fraud Ever since the House of Lords handed down its decision in Salomon's case, legal doctrine regards each corporation as a separate legal entity. When coupled with the consequent attribute of limited liability, the Salomon principle provides an ideal vehicle for fraud. Because of its malleability and facility for protecting directors and members against the claims of creditors, the corporate form has been responsible for the development of many different forms of fraudulent or anti-social activity.454 (c) Limitations on shareholders bringing proceedings on behalf of the company There are procedural difficulties for shareholders to bring a court action on their own behalf and on behalf of their company. Historically, the so-called rule in Foss v Harbottle(1843) 2 Hare 461was illustrative of such a problem. In that case two shareholders brought an action on behalf of themselves and all other shareholders against the directors, solicitor and architect of their company. They alleged that the defendants had fraudulently misapplied company property and that the board was not properly constituted. The defendant's argued that the plaintiff's plea, even if proved, did not entitle them to succeed. The Court held that the injury of which the plaintiff's complained of was not an injury to themselves but to the company. Therefore the company should sue in its own name. Khan-Freund, ‘Some Reflections on Company Law Reform’, (1944), 7 MLR 54 at p. 56 Goulding, S., Principles of Company Law,(London: Cavendish Publishing Limited, 1996), p. 49 454 Gonzalo VillaltaPuig, “A Two-Edged Sword: Salomon and the Separate Legal Entity Doctrine” Volume 7, Number 3 (September 2000) Corporation Law – Australia http://www.murdoch.edu.au/elaw/issues/v7n3/puig73a_text.html, December 17, 2014 at 12: 07 pm 452 453 107 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. (d) Limited role that shareholders have in management A company often has a separation of powers between management and shareholders. According to Samuels JA., in Winthrop Investments Ltd v Winns Ltd(1975) 2 NSWLR 666 at 683 “... [T]he shareholders may have, ultimate control, because they can alter the articles or remove the directors: but they cannot interfere in the conduct of the company business where management, as here, is vested in the board ... they have no general power to transact the company's business, or to give effective directions about its management." This injustice is further illustrated in the case of Automatic Self-Cleansing Filter Syndicate Co. Ltd v Cunninghame(1906) 2 Ch 34where an article gave power of management to directors "...subject to such regulations as may from time to time be made by extraordinary resolutions." A further article gave the board power to sell property owned by the company on terms it thought fit. Shareholders at a meeting purported by ordinary resolution to direct the board to sell property and the board refused and relied on the articles. The Court held that unless an extraordinary resolution was passed, as provided for in the articles, the shareholders could not ignore the articles and give directions455. THE TREND IN ITS APPLICATION The principle of corporate personality which is said to cast upon the company, “a veil of incorporation” as was espoused in the case of Salomon V Salomon has been applied in the following cases:Lee v Lee's Air Farming (Supra); where Lee formed a company; Lee's Air Farming Ltd to carry on the business of aerial top-dressing. Lee held all the shares except for one which was held by his solicitor. Lee was governing director of the company and employed as its chief pilot. Lee was killed while working for the company when an aeroplane crashed. His widow sued under the company's workers' compensation insurance. The New Zealand Court of Appeal rejected the claim on the basis that since Lee was the governing director of the company, he could not also be its employee. His widow appealed to the Privy Council. The Court held that the company was a separate legal entity. Macaura v. Northern Assurance Co. Ltd (Supra), Wherethe House of Lords decided that insurers were not liable under a contract of insurance on property that was insured by the plaintiff but owned by a company in which the plaintiff held all the fully-paid shares. The House of Lords held that only the company as the separate legal owner of the property, and not the plaintiff, had the required insurable interest. The plaintiff, being a shareholder, did not have any legal or beneficial interest in that property merely because of his shareholding. Industrial Equity v Blackburn(1977) 52 ALJR 89,where the High Court refused to treat a subsidiary company as merely part of its holding company for the purposes of determining the profits of the holding company because of the separate legal entity concept. In this case the question arose "whether in ascertaining the amount of profits available for distribution by a holding company by way of dividend, it is correct to look at the profit of the holding company itself or to the group profit as disclosed by the consolidated accounts." The court held that it was correct to do this. 455 See also NRMA v Parker (1986) 4 ACLC 609. 108 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. As much as the courts have tried to uphold the principle of corporate personality as laid down in Salomon’s case, there has been a steady stream of common law decisions and legislative enactments which have eroded the immutability of the separate legal entity doctrine and have thus exposed officers to personal liability to a company's creditors. These decisions and enactments are conveniently seen as ways to `lift or pierce the corporate veil'456 In the words of Lord Denning in Littlewoods Mail Order Stores Ltd. v. IRC (1969) 1 WLR 1241, “Incorporation does not fully “cast a veil over the personality of a limited company through which the courts cannot see. The courts can, and often do, pull off the mask. They look to see what really lies behind.” “A corporation will be looked upon as a legal entity as a general rule but when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud or defend crime the law will regard the corporation as an association of persons.” In the same vein, Lord Halsbury in Salomon's case acknowledged that the corporate veil will not protect a fraudulent person hiding behind the corporate structure. CASES WHERE THE COURTS HAVE LIFTED THE VEIL OF INCORPORATION INCLUDES, Gilford Motors Co Ltd v Horne (1933) 1 Ch D 935where the defendant was employed under a service contract as managing director of the plaintiff company. As part of this contract he was forbidden, when ceasing his employment with the company, from taking away the plaintiff's customers. The defendant left the plaintiff company, formed a competitive business and a company in which he was one of three shareholders. The new company solicited the plaintiff's customers and the plaintiff sought an injunction restraining this conduct. The defendant argued that he was not soliciting customers of the plaintiff and that if there was any solicitation, it was from a separate legal entity, namely the new company which had no contract with the plaintiff. This argument was rejected by the Court. Jones v Lipman (1962) 1 WLR 832,where Lipman agreed to sell land to Jones. Before completion of the contract, Lipman transferred the land to a company of which he and a clerk employed by his solicitors were the only shareholders and directors. Jones brought an action for specific performance of the contract against both Lipman and the company. The Court held that the company was a sham and ordered specific performance of the contract. Smith, Stone & Knight Ltd v Birmingham Corp(1939) 4 All ER 116where Birmingham Corporation, a local council, compulsorily acquired premises owned by the Birmingham Waste Co. Ltd. This company was a wholly-owned subsidiary of Smith, Stone & Knight Ltd. Indeed, of the 502 issued shares in the waste company, 497 were held by Smith, Stone & Knight and the other 5 were held on its behalf. The Waste Company had no staff, no separate 456 In Qintex Australia finance Ltd v Schroders Australia Ltd (1991) 9 ACLC 109, Rogers CJ suggested that the whole issue of the separateness of the corporate legal entity be re-examined in the light of the so-called tension between the realities of commercial life and the applicable law. Although his Honour in the case at hand had to determine which company in the Qintex group of companies should be able to claim the benefit of the contract entered into, a number of more general remarks were made concerning the separate legal entity doctrine. According to his Honour, (at p 111) it may be desirable "for Parliament to consider whether this distinction between the law and commercial practice should be maintained. This is especially the case today when the many corporate collapses of conglomerates occasion many disputes." 109 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. books of account and on the evidence it was treated like one of Smith, Stone & Knight's departments. Accordingly a claim for compensation for loss of business was made by Smith, Stone & Knight Ltd. Birmingham Corporation argued that Smith, Stone & Knight Ltd. could not succeed because the loss had been sustained by the waste company - a separate legal entity. The Court held that compensation was payable as the Waste Company was carrying on no business of its own but was in fact carrying on the Smith, Stone & Knight business as agent for them.       Atkinson J held that the following six factors must be proven in order to show the requisite agency relationship and thus be able to lift the corporate veil: Profits of the subsidiary must be treated as profits of the holding company; Those conducting the subsidiary's business must be appointed by the holding company; The holding company must be the head and brain of the trading venture; The holding company must be in control of the venture and must decide what capital should be spent and what should be done; The profits made by the subsidiary's business must be made by the holding company's skill and direction; and The holding company must be in constant and effective control. Arguments to however lift the veil were rejected in Adams v Cape Industries Plc (1990) Ch 433where the Court of Appeal ruled that, as a matter of first legal principle, it was not justified in piercing the corporate veil of a defendant company, which was a member of a large corporate group, merely on the grounds that the corporate structure had been engineered so as to ensure that legal liabilities in respect to particular future activities of the group would be imposed on another member of the group rather than on the defendant company itself. In simple terms, the Court of Appeal dismissed the argument that the corporate veil should be pierced purely because a group of companies functioned as a single economic entity. StoczniaGdanska SA v Latvian Shipping Co and others(2000) C.P.L.R. 65where it was argued that to find a parent company liable for inducement merely on the grounds of the fact that it controlled a subsidiary would be to unfairly deny the parent of the protection in Salomon v Salomon & Co Ltd. The Court agreed. The simple fact of control did not justify the Court in reaching the conclusion that the directors of the subsidiary performed like automatons and treated requests as if they were instructions to be carried out without question. The subsidiary was a separate legal entity and to make another presumption would mean that the principles underpinning the separate incorporation of the subsidiary would have to be ignored. In the final analysis the Salomon principle was upheld: the subsidiary was deemed to be a separate legal entity distinct from its ultimate parent.457 From the foregoing, the trend that seems to have been established by the courts in applying the Salomon principle is that where an argument of “mere sham” or “façade”, “agency” or “fraud” cannot be imputed, the court is predisposed to maintaining the veil as in Adams V Cape (supra); however, where these factors upon consideration of the peculiar facts of a case 457 Did company law benefit from the decision of the House of Lords - http://www.lawteacher.net/companylaw/essays/December 17, 2014 at 11:57 am 110 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017. can be said to exist, the courts in lifting the veil as in Jones v. Lipman (Supra) would not hesitate in stripping a company of its corporate defense established in Salomon (Supra) CONCLUSION After examining the origin, consequences and trends in the application of the principle espoused in Salomon V Salomon, the question remains – “is it relevant to today’s business world?” I am of the view that yes it is; as the advantages the corporate vehicle aided by the principle espoused in Salomon v. Salomon confers upon a business man far outweighs the disadvantages. For one, the principle of separate legal entity established in Salomon's case has been instrumental in the development of modern capitalism and the immense social and economic wealth it has generated. The uproar created by The House of Lords decision in Salomon to extend the principle of corporate personality to small private enterprises, has been largely negated by joint legislative and judicial action as regards “lifting the veil.” Indeed, "the legislature can forge a sledgehammer capable of cracking open the corporate shell”. And even without statutory assistance, the courts have often been ready to draw aside the veil and impose legal liability on members and directors where to apply the Salomon principle strictly would lead to injustice, inconvenience or damage to government finances. On the strength of this research therefore, it is my conclusion that a strong case for a reformation of the law has not been made. The law as it currently stands reflects the balance that is required between the needs of the economy and the needs of justice; and if required by public policy, the courts have been invested with the power and discretion to continue the development of this area of law, which without gainsaying, has withstood the test of time for over a century and has remained, the cornerstone upon which the entirety of company law rests. Consequently, the principle as set out in the case of Salomon V Salomon remains relevant to today’s business world. 111 0