EXCERPTS FROM THE SYMPOSIUM

What do you think? Share your thoughts.

HON. JUSTICE NWALI SYLVESTER NGWUTA

The office of the Attorney General is too important to be combined with that of the minister of justice. Why? The chief lawyer of the federation must be independent of the whims and caprices of the government.

The rape case presently ongoing in Delta should not be heard. The state should not hesitate to pay the woman and apologise to her dearly. How would we imprison a woman with two male counterparts? This is unheard of.

GOV. ROTIMI AMAECHI

My Lords, we must defend democracy because we must defend Nigeria

We must be prepared as a people to hold government accountable; to demand accountability.

PROF. EPIPHANY AZINGE, SAN, DG NATIONAL INSTITUTE OF LEGAL STUDIES

There should be a quality process of appointment of judges. This process should be open and transparent.

We are concerned by the declining intellectual death of some of our judges and we are of the respective view that a wider diversity of experience will add to the decisions of the judiciary in court. Such as appointment of Senior Advocates of Nigeria to the Court of Appeal.

We need a revolutionary change, a precipitate and immediate change.

HON. JUSTICE NASIRU AJANAH, CHIEF JUDGE KOGI STATE

The funding for the judiciary is of utmost importance. To encourage judicial independence, monies accruing to the judiciary should be placed in the care of the head of court. Though these provisions are in the constitution they are not being implemented.

Where members of the Judicial Service Commission are appointed by the Governor, it is the politicians that would decide the outcome of that body.

A.B. MAHMOUD, SAN

The challenge we have presently is that we should not always look to the solution of the problem of judicial reform from our constitution. There are several issues and reviews that can be made without resort to constitution review.

There must be a defined federalism for there to be changes in the judiciary.

We should build a federalism that takes into consideration our peculiarity.

There has been an excessive concentration of power in the national judiciary such as concentration of matters in the Federal High Court. We need to allow the State Courts, state judiciary to develop.

In fact, each States should handle their electoral disputes.

FESTUS OKOYE ESQ.

 Asking for a decentralisation of the judiciary should also mean the decentralisation of other state issues such as the issue of having an independent state electoral commission to conduct states and Local Governments’ elections.

We must therefore deal with our federation first.

The NBA should lay siege at the NATIONAL ASSEMBLY for this process of constitutional review to be completed before the end of the year.

YUSUF ALLI, SAN

The truth is, most of us lack character. Character is at the heart of the efficiency of the judiciary. If an individual lacks character, appointing him a judge will not change that fact.

The problem of this day is that there are too many mistakes of the heart from the bench.

MR. ASIJUE, (Representative for the Controller-General of the Nigeria Prisons Service)

The problem of congestions and the number of awaiting trial inmates in prisons is not with the prisons service but the judiciary.

DELE ADESINA, SAN

The national industrial court is the court of first and last instance except on fundamental rights cases. This should not be so.

The Nigerian Bar Association should sit with the National Judicial Council to propose a guideline for the appointment of Judges.

FEMI FALANA, SAN

I do not believe that the ongoing review will stand the test of time because we are not prepared to have a holistic once and for all amendment.

If we are going to have administration of justice in Nigeria we must look at the role of lawyers in the importation of criminal proceedings and civil proceedings. On the issue of staying of criminal proceedings, it is evident that in the last 10 years, the States High Courts have not secured conviction of criminals as is being done by the EFCC in the Federal High Court. Once a criminal proceeding as commenced, there should be no stay of proceedings.

The judicial reform bill has failed to address the problem of lack of access to justice by the generality of the people.

The rules of court should now be amended to abolish the issue of locus standi. It should not be limited to fundamental rights actions only.

We can do anything in Nigeria and go away with it. Ours is the only country apart from Banana Island where the courts grant stay of proceedings for an election petition matter, knowing that the action is time bound.

On the issue of state police, we all know that there are many police forces, the state security service have its own police service not under the Inspector General of Police. We have the EFCC, NDLEA, Nigerian Civil Defence, Vigilante groups, Neighbourhood watches, who carry guns in the name of security, so why are we pretending? We need to streamline this primitive way of policing the country. We only must ensure that we curtail the States Governors from controlling the police.

We should get credible civil societies to be members of the Police Council so that no Governor or president can say go and arrest Femi Falana.

Our prisons are in a sorry state. These prisons were built by the colonial masters. We don’t have prison congestion in Nigeria, we have prison mismanagement.

It is only the rich and privileged that have some of their rights respected in prisons. We call to the government that our prisons should be modernised and conjugal visits should be allowed.

I also will suggest that the ICPC Act be reviewed to provide the death penalty for looters of funds.

We should also increase the participation of women in governance. Rwanda has the highest number of women in administration in the world.

Chapter II of the constitution is justiciable, there are laws of the nation that were made pursuant to the provisions under chapter ii, they are justiciable, we should stop saying they are not.

MR. CHINONYE OBIAGWU, ESQ.

We need a body outside the police that can police the police.

I suggest that Chapter Ii and IV should be merged.

The National Assembly should be reserved for proportionate representation, such as allowing 30% representation for women and people with disabilities.

I.B.B BENEDE (miss)

Where robbers are convicted for armed robbery, they should be sentenced and wasted.

allAfrica.com: Nigeria: Jonathan Makes U-Turn, Re-Files Suit Against Leadership Journalists

allAfrica.com: Nigeria: Jonathan Makes U-Turn, Re-Files Suit Against Leadership Journalists

The Symposium:Review of the1999 constitution&its impact on the much needed Judicial Reforms

The symposium, which took place at the International Conference Center, Abuja on 26th June, 2013 was organised by The Rule of Law Development Foundation, founded by Joseph Bodunrin Daudu, SAN. The event was one filled with intellectual minds.

In attendance, amongst others were the following in no particular order:

1. Hon. Justice Dahiru Musdapher, GCON (Former Chief Justice of Nigeria)
2. Hon Justice Mohammed Lawal Uwais, GCON (Former Chief Justice of Nigeria)
3.  Hon. Ike Ekweremadu, Deputy Senate President
4. Hon. Justice Helen Ogunwumiju
5. Governor Chibuike Rotimi Amaechi
6. Hon. Justice Nwali Sylvester Ngwuta
7. Hon. Justice C.C. Nweze
8. Hon. Justice Nasiru Ajanah, C.J. Kogi State
9. A.B. Mahmoud, SAN
10. Femi Falana, SAN
11. Nella Andem-Rabana, SAN
12. Dr. Babatunde Ajibade, SAN
13.Chief Wole Olaonipekun, OFR, SAN
14.Mr. Wale Fapohunda, SAN ( A.G and Commissioner for Justice, Ekiti State
15.Mr. Chinonye Obiagwu, Esq.
16.Mrs. Obi Nwankwo
17.Mr. E.C. Ukala, SAN
18.Mr. Abudue (Representative of the Controller-General of the Nigerian Prisons Service
19.Yusuf Alli, SAN
20.Debbie N. Obodoukwu
21.Mike Ahamba, SAN

The theme of the symposium was basically the role of the Rule of Law in Nigeria vis-a-vis constitutional review and its impact on Judicial reform.

Keynote speaker, Hon Justice Dahiru Musdapher, GCON, explained to the audience, his efforts in ensuring judicial reform in Nigeria. He inaugurated a 29-member committee on 14th October, 2011. The responsibility of the committee was to scrutinize the shortcomings of the judiciary and to recommend reforms.

In July 2012, he submitted a bill containing 52 proposed constitutional amendments to the National Assembly on expected reforms in the judiciary. He however noted that out of the 52 proposals submitted, only 2 were included in the proposed constitution review by the Senate Constitution Amendment Committee, chaired by the Deputy Senate President of Nigeria, Hon. Ike Ekweremadu of the 7th Senate of Nigeria. This bill however remains pending before the House.

He advised  that the proposed amendment bill be passed as soon as possible. According to him, "this amendment constitutes the most comprehensive review in the nations history".

 He further said that "it is vital to review the constitution to suit the issues and needs of modern Nigeria because the law and the judiciary has suffered a disconnect from the society".

Several suggestions were made at the symposium for the reformation of our judiciary. This amongst others, includes:

1. The appointment of the Senior members of the bar to the Appellate bench. Examples of Eminent Jurists  were cited, such as, Justice Chukwudifu Oputa, Justice Coker, e.t.c.

2. Appointment of Judges should be open and transparent, vacancies should be widely publicised on the    internet and newspapers,disclosure of shortlisted candidates and their names should be publicised on the internet and be subjected to rigorous interview process.

3. Nigerian federalism should be defined

4. Electoral matters should only be terminated on the merits and not prematurely as a result of adjournments or public holidays which are not the fault of the litigant.

5. The establishment of a court of appellate jurisdiction to hear appeals from the National Industrial Court.

6. The Nigerian Bar Association should sit with the National Judicial Council to propose the guideline for the appointment of Judges.

7. Decentralising policing in Nigeria.

8. Increase the jurisdiction of States High Courts as their jurisdiction as at today are been limited by the jurisdictions conferred on courts like, the Federal High Courts and the National Industrial Courts.

9. The merging of Chapter II of the constitution with Chapter IV.

10. Modernise the Nigeria Prisons and provide conjugal visits.

11. Should provide that specific positions in Nigeria should be occupied by women; the National Assembly should be reserved for proportionate representation.

The Symposium: Review of the1999 costitution& its impact on the much needed Judicial REeforms

Uploading pictures from the event. More information later.

Governor Chibuike Rotimi Amaechi

In the picture: Mr. Wale Fapohunda,SAN, Hon. Justice Ogunwumiju, Chief Wole Olaonipekun, SAN, A.B. Mahmoud, SAN, Dr. B.A.M. Ajibade, SAN, Festus Okoye, Esq, Nella Andem-Rabana, SAN, Hon. Justice Nasiru Ajanah 

In the picture: Wale Fapohunda, SAN, Hon. Justice Ogunwumiju, Governor Chibuike  Rotimi  Amaechi,  Hon. Justice M.L. Uwais, Hon. Justice Dahiru Musdapher

Entrance to the International Conference Center, Abuja

Speaking: Hon. Ike Ekweremadu, Deputy Senate President

ONE DAY STAKEHOLDERS SYMPOSIUM

I came across this flier today and I will advice that if you are anywhere in Abuja tomorrow 26th June, 2013, you should attend.

I have gone through the proposed review of the constitution and if you have, you will agree with me that there are certain provisions that must be questioned.

Meanwhile, watch out for my appraisal on the proposed constitutional review.

UPDATE ON INSTITUTING A CRIMINAL PROCEEDING BEFORE THE APPROPRIATE COURT

Image Courtesy: The street journal

The ongoing case of three suspected Lebanese terrorists, Mustapha Roda Darwish Fawaz, Talal Roda, and Abdulla Tahini is becoming more interesting. In a report on the court proceeding, the accused persons informed the court that the weapons and guns recovered in their compound were mere hunting rifles and a curtailment of their fundamental human right!

We will see about that in my next blog, coming soon : Possession of arms without lawful excuse.

NO ROOM FOR SURPRISES!

Just read about the new law passed by Louisiana's lawmakers. The law provides for open discovery and compels prosecutors to turn over all evidence favourable to defendants Read here.

This is really a nice one as it will ensure that the Defendant in a criminal proceeding is informed of all the materials to be used in proving their guilt. This will also foster transparency and eliminate any form of surprises during the trial.

CRIMINAL CHARGE OF A THIRTEEN YEAR OLD

courtesy: detroit.cbslocal.com

A thirteen year old child charged with murder in the second degree of his 5-year-old sister in New Orleans came to my attention today and I decided to consider the legal issues in a Nigerian setting.

The issue is whether or not a 13-year-old child is criminally responsible?

Criminal responsibility means liability to punishment as for an offence[1]. Therefore, a person is criminally responsible when he is liable to be punished for an offence.

Generally in criminal law, anyone who is charged with an offence is presumed innocent until the contrary is proved[2].

 The burden of proving that a person is guilty of an offence is on the prosecution, who has the burden of proving the legal elements of any offence, which are the mens rea (intention) and actus reus (act). The prosecution also has the burden to prove that the defendant committed the offence beyond all reasonable doubt.

What is an offence?

An offence is defined under the Criminal Code Act[3] as an act or omission which renders the person doing the act or making the omission liable to punishment under this code[4], or under any act or law.

Simply put, any act or omission defined under any act of the National Assembly or the States Houses of Assembly in Nigeria as constituting an unlawful act or omission is an offence.

Under the Black’s Law Dictionary[5], an offense was defined as a violation of the law; a crime, often a minor one. However, crime was defined as an act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding. This definition of crime corresponds with the definition of an offence under the Nigerian Criminal Code Act.

Thus, anyone who breaches the legal duty placed on them as defined under the code, any act or law, shall be liable to prosecution for such breach.

The legal elements of Actus Reus and Mens Rea are defined as follows:

The mens rea is a Latin word which means guilty mind. The state of mind that the prosecution, to secure a conviction, must prove that a defendant (accused person) had when committing the crime; while actus reus is a Latin word which means guilty act. The wrongful deed that comprises the physical components of a crime and that generally coupled with mens rea to establish criminal liability; a forbidden act[6]

 Nigerian Criminal Laws

Section 30 of the Criminal Code (operating in the Southern parts of Nigeria) provides:

A person under the age of seven years is not criminally responsible for any act or omission.

 A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

 A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

Similarly, section 50 of The Penal Code (Operating in the Northern parts of Nigeria) provides:

No act is an offence which is done-

By a child under seven years of age; or

By a child above seven years of age but under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequence of such act.

Section 30 simply means that once a child is above the age of 12 that child is criminally responsible whether or not he had the capacity to know that at the time of doing the act or making the omission he ought not to do the act or make the omission.

---

[1] Section 1 of the Criminal Code Act , Laws of the Federation, 2004

[2] Section 36(5) of the Constitution of the Federal Republic of Nigeria

[3] Section 2 of the Criminal Code Act, Laws of the Federation, 2004

[4] The Criminal Code

[5] The Third Pocket Edition

[6] Definition according to Black’s Law Dictionary; Third Pocket Edition

INSTITUTING A CRIMINAL PROCEEDING BEFORE THE APPROPRIATE COURT

Image courtesy: The Street Journal

It is the responsibility of a prosecutor to ensure that he institutes an action in the proper court. Where a charge is brought against any person in the wrong court, the court will deny jurisdiction either suo motu or upon the preliminary objection raised by the opposing counsel. The case of illegal arms importation and terrorism charge brought against the owner of Amigo supermarket and three other Lebanese instituted by the Prosecutor, Cliff Osagie was on Wednesday 19th June, 2013 struck out by the Court upon the application of withdrawal by the Prosecutor.

If the question on your lips is whether there's something fishy about this latest event, you need not be bothered. The issue here is in respect of jurisdiction.

Jurisdiction as a term simply means a court's power to decide a case or matter. In criminal cases, a court possesses jurisdiction once it is competent to try any person or persons of any allegation of crime. In Nigeria the jurisdiction to hear, determine and punish for any offence is classified into two. There is a general criminal jurisdiction; whereby courts have jurisdiction over different classes of offenders and in respect of different offences, and special criminal jurisdiction; where courts exercise jurisdiction over a particular class of offenders or particular types of offences.

Examples of courts of general jurisdiction are Customary Courts, Area Courts, Magistrate Court, High Courts, the Court of Appeal and the Supreme Court while examples of court of special criminal jurisdiction are The Federal High Court, Juvenile Courts, Courts-Martial and Coroner's Court.

It is the responsibility of the prosecutor to ensure that he institutes a criminal proceeding in the court vested with the criminal jurisdiction to try the particular offence or offender.

Criminal jurisdiction in respect of an offence of terrorism is vested on the Federal High Court by virtue of section 32 Terrorism (Prevention) (Amendment ) Act, 2013.

It provides:

"32. (1) The Federal High Court located in any part of Nigeria, regardless of the location where the offence is committed, shall have jurisdiction to -

(a) try offences under this Act or any other related enactment;

(b) hear and determine proceedings arising under this Act; and

(c) whether or not the offence was commenced in Nigeria and completed outside Nigeria and the

victim is-

(i) a citizen or resident of Nigeria,

(ii) not a citizen of any country but

ordinarily resident in Nigeria,

(iii) in transit or has a link with Nigeria,

Thus, where a charge of terrorism is brought before a Magistrate Court, such Court lacks jurisdiction to try that particular offence. The proper thing for the Prosecutor to do is to commence the criminal proceeding before the appropriate Court.

Allegation of crime (Part II)

What do you think? Comments are appreciated.

http://bit.ly/16h7pwC

Allegation of crime and court drama (Part I)

Kindly read and send in your opinion. What is your view in respect of this matter?
http://bit.ly/10y3GfR

Legal intimidation; any effect?

For the purpose of this topic I define legal intimidation as the deliberate briefing of two or more lawyers to represent a party in one suit.

In a recent news report, 10 Senior Advocates of Nigeria and 87 Lawyers offered to freely represent the Executive Secretary of the Anti-corruption Network, Dino Malaye, in a 10 million naira Libel suit instituted by the Attorney General of the Federation and Minister of justice, Mr.Mohammed Bello Adoke. It was also reported that the AGF has costituted an 11-man team in respect of the matter. See: http://dailypost.com.ng/2013/06/03/n10bn-libel-suit-10-sans-87-lawyers-sign-up-to-defend-dino-melaye-for-free/

I ask myself 'what would this achieve?' or 'for what purpose would a party brief 2 or more lawyers to represent him in a case?' 'would this  change the merits of a case or guarantee a win in the Court of law?'

It's  baffling that a Client would believe that the more the legal representatives, the better  his case.

In my opinion this feels like the game of thrones. Bring all the lawyers in and let's see who would make the best of the Court room!

We are aware that a Judge is a neutral umpire. He  is vested with the responsibility of interpreting the law and expatiating on the numerous principles of law. A judge is expected to conduct trials impartially. He hears all the witnesses presented before him and any other documentary evidence presented by the parties in the case. He assesses the credibility of witnesses presented by both parties and the final written addresses of the parties. These will form the basis of the delivery of a judgment (backed by the rationale ) based on his interpretation of the law and discretion.

He is expected to conduct himself based on the facts and circumstances presented to him and not to base his judgment on facts not presented both in the pleadings and at trial.

Therefore, the number of representatives before him should not change the law and it's application.

However, it may be argued in favour of a party that each lawyer on the team has specific skills and experience which could advance the party's case.

In my opinion, where a Judge is unbiased it should have no effect on the issues and their determination. 

Maybe it would affect a Judge where the exercise of his discretion is required, and of course, the advocacy skills and manner of presenting the party's case by his lawyers.

We may never know.

In conclusion, if a party's intention is to oppress/intimidate the opposing Counsel, this may have the effects intended especially where a new wig is opposing a SAN (Senior Advocate of Nigeria). But that it would affect the merits of the case, is left for individual Judges.