Tag: Nigeria

EX – PARTE APPLICATION IN REMAND PROCEEDINGS, AN AMBUSH AGAINST A SUSPECT/DEFENDANT UNDER THE AKS ACJL AND OPTIONS THAT AVAIL A SUSPECT/DEFENDANT/DEFENCE LAWYER

August 31, 2022

Written by Meti M. Ukpeh, Esq.

A.) As we all know, a remand proceeding is simply, a criminal procedure undertaken by a criminal prosecutor before a Magistrates’ Court who will remand a suspect in custody as a result of felonious charges or capital offences against the suspect/defendant.

This procedure had been rampant, prior to the new law, the Administration of Criminal Justice Law of Akwa Ibom State (hereinafter referred to as, the “new law”, “law” or “ACJL”), as lay police prosecutors found comfort in charging suspects/accused (now defendants) with capital offences in the Magistrates’ Court who, in recourse to its lack of jurisdiction to try such offences, will remand these suspects/defendants in custody pending when a formal charge is instituted in the High Court against the suspect/defendant, as the case may be.

However, thanks to section 106(d) that rooted out lay police prosecutors save police lawyers. Note here that, by reason of S.492 of the ACJL, police include other law enforcement agencies.

It is pertinent to note that the new law envisages a remand proceeding by an ex – parte application, viz:

S. 292(1) provides thus:

A suspect arrested for an offence which a Magistrate’s Court has no jurisdiction to try shall, within a reasonable time of arrest, be brought before a Magistrates’ Court for remand.

Ss.2: an application for a remand under this section shall be made ex – parte and shall be-

Made in the prescribed “Report and Request for Remand Form” as contained in Form 8, in the First Schedule to this Law; and
Verified on oath and contain reasons for the remand request.

worthy of note is the fact that the ordinary effect of an ex-parte application is for urgent or emergency situation and for an order in the interim, hence lapses after a short period of time, usually 7days (a week) except the extant laws, rules of court provide otherwise or the court extend such duration but not beyond seven days pending when an interlocutory application is brought.

B) However, the new law, ACJL, has comfortably provided what or the duration of such an order brought by ex-parte application, thus, S. 295(1) provides:

Where an order of remand of the suspect is made pursuant to section 292 of this law, the order shall be for a period not exceeding twenty-one days in the first instance, and the case shall be returnable within the same period

The effects thereof on a suspect/defendant as the case may be include:

The remand proceeding is done without notices to the suspect/defendant for proper time and facility to prepare for his trial
He may be remanded in a correctional centre prescribed in the order for a period of 21 days pending a formal charge instituted against him by the criminal prosecutor in the high court.
He may remain in the correctional centre for a cumulative period of 84days before the court (Magistrates’ Court that had ordered the remand) can discharge him without a formal charge instituted against him.

C) Options That Avail a Suspect/defendant/defence lawyer

The suspect/defendant lawyer may, on the hearing of the ex-parte application, invoke section 294 of the law which provides thus:

The court may, in considering an application for remand brought under s.292 of this law, grant bail to the suspect brought before it, taking into consideration the provisions of sections 158 to 188 of this law relating to bail.

Note: this is safer where the suspect “got wind” of his arraignment in the magistrates’ court.

The suspect/or through his counsel can invoke s. 348(2) of the law which provides:

In a trial in the magistrates’ court or tribunal, the prosecution shall, provide the defendant all material that the prosecution intend to rely on at the trial, before or at the commencement of the trial

He can invoke section 36(6) (a and b) of Constitution of the Federal Republic of Nigeria, 2011 as amended, on the ground of fair hearing in according him adequate time and facility to prepare for his defence which is in pari material with s.348(2) of the law.

For the avoidance of doubts, section 36 (6) (a and b) provides thus:

Every person who is charged with a criminal offence shall be entitled to-

Be informed promptly in the language that he understands and in detail of the nature of the offence;
Be given adequate time and facilities for the preparation of his defence
The suspect/defendant, better still, his lawyer, can also within 21day in custody apply to the court (Magistrates’ Court that ordered his remand) for an inquiry on his arrest and custody with a possibility of admission to bail by the court. See: section 32(c) and s. 32(2) of the law:

s.32(2): the court shall order the production of the suspect detained and inquire into circumstances constituting the grounds of the detention and where, it deems fit, admits the suspect detained to bail.

In conclusion, it is evidently safer to submit that, whereas the remand proceedings by ex-parte application is a clog, an ambush or a waylay of the suspect/defendant by the prosecution upon reliance on the strict wordings of section 292 of the new law, it is pertinent to hold that there is a relief, a succor and a solace for the suspect/defendant as there are very other options opened for the suspect/defendant to ensure the enforcement of his rights as extensively discussed above.

About the Writer

Meti Monday Ukpeh ESQ is a Public Affairs Analyst and Human Rights Lawyer. He can be reached via metiukpeh8899@gmail.com

Written by Meti M. Ukpeh, Esq. A.) As we all know, a remand proceeding is simply, a criminal procedure undertaken by a criminal prosecutor before a Magistrates’ Court who will remand a suspect in custody as a result of felonious charges or capital offences against the suspect/defendant. This procedure had been rampant, prior to the new law, the Administration of

Learned Scribbles

A Non-boring Guide for Preparing Your Next Final Written Address – Part 2

fredericknkobowo

August 24, 2022

Not to worry. In this part, we will try throwing in some anecdotes, tales and maybe a little bit of sarcasm (now popularly called vawluence) to ensure you don’t dose off while reading. And even if you dose, well, we tried. Lol.

Our fingers are crossed but we hope your fingers are ready to jot and learn. That said; let’s dive right in.

So where were we in Part 1?

In part 1 we mentioned your ultimate to do list. You can refresh your memory about it here. We also mentioned the first step to preparing your final address which is – reading the record of proceedings. If you have read your record of proceedings like we suggested, then we can proceed to the next step.

So, after reading the record of proceedings; –

2. Frame the entire story/case into a central legal question or the key legal questions (or legal issues) that the Court will be called upon to decide;

After reading the record, the question that should bog your mind as a starter to the actual writing of your address is – what are the core legal questions or issues the Court is called upon to determine in this case. In other words – from a mesh of the facts and the applicable law; why are we in Court at all and wetin suppose comot?

We know that ‘wetin suppose comot’ will likely never enter your final address. But hope you get the point we are trying so hard to get across.

Better still, let’s analyze the point this way, the entire suit has been a long story with a main plot subsisting between the parties. A says he knows B. He drags B to court and says B has wronged him. So, the court should grant his (that is A’s) reliefs. B says he knows A but either says an entirely different story and says A is the one that as actually even wronged him. And so, he won’t keep his cool any longer – then he counterclaims against A. Or B justifies his actions towards A or just admits he’s done bad like A said.

As the litigation lawyer on either side, you’re in a sense really assisting A or B tell or present his story to the Court and prove it with credible evidence. Mind you, you’re not expected to tell the story yourself – unless you’re a witness in the matter. The relevant principle to keep in mind here is that a lawyer’s address no matter how eloquent cannot take the place of evidence especially where there is no evidence to support the submission. On this point, see the case of U.B.N. PLC vs AYODARE & SONS (NIG) LTD (2007) LPELR-3391 SC. So, attempting to give evidence for A or B in your final address isn’t a strategy known to law. That means like we said before; you’re stuck with the record..

In effect, the story is the starting point and you can liken it to a house with a foundation. In law, we have a big word for that foundation – we call it the pleadings. Then the block work on top of the story (or foundation) is the evidence (currently situated in the witness depositions as used in our High Courts).

Why have we called the pleadings the foundation and the evidence it’s blockwork? It’s simple. The blockwork must rest on the foundation or else, there’d be problems. The legal principles that confirm what we have just said are two-fold – pleadings unsupported by evidence go to no issue and evidence that is at variance with pleadings also go to no issue – ADUGBO v. IBE (2018) LPELR-46138.

Now let’s rewind to the story as the starting point and the framing of legal questions from the story.

Remember that A and B’s beautiful stories, are not told because it’s a tale by moonlight series and the Judge is paid to just listen to other people’s life troubles. No. A has come with his story because he wants justice or respite from the law. He feels he has a reason for the law to hear his story (aka a cause of action) and remedy the injury he has suffered . After all, Ubi jus ibi remedium.

So the story is really a means to an end. And A desires that end while B is likely to be contesting it. Within that story are the legal issues or questions.

So how do we frame the legal issues?

Let’s not complicate nothing. It’s simple.

Remember how to answer problem questions at the university and the IRAC rule? We’re back at that stubborn point.

In the IRAC mnemonic, the letter “I” stood for “Issues” right? Indeed, we are back there again.

So, if we are to attempt offering a description, the legal issues are the core legal questions which when answered would determine if our Mr. A should get any relief from the Court. We’ve used legal questions to define legal issues. We just noticed. Haha.

The crux is this, in all the stories told by either side, there is a point at which the law comes in and makes either of the stories worthy of compensation (relief) or absolute disregard. Generally, the core legal issue in civil matters would be whether the Claimant has proved his case and is thus entitled to judgement in his favor (or the grant of his reliefs). In criminal matters, the core legal issue usually would be; whether the Prosecution has proved the guilt of the Defendant as required by law? We only state this as the core legal issues since the main gist of the trials (both civil and criminal) would usually center on these points.

We’d use the IRAC rule again when we get to the meat of our gist (in Part 3). But for now, please read the record and then formulate your issues.

3. Sleep – After reading the record and framing the issues. It might be wise to sleep. Not in the office, but on the story, the evidence adduced and the legal effects of same. This brings us back to some very crucial areas in the whole case. We’d suggest a holistic sleeping on or review (if you will) of the case or story as contained in the record. It will help you develop a mental framework of how you want to argue the issues raised (remember item 4 of your ultimate to do list?) Some questions that can guide your consideration or sleep mode are listed below. We’ve called them sleep capsules. Take 2 in the morning and 2 at night while standing on one leg. Okay?

Sleep capsule 1: Are there any jurisdictional issues in the case that shoot Mr A’s claim to death no matter how probable the claim might seem? These issues could include –

The Court before which the action has been brought is not the Court established and mandated by Law to entertain such actions. If this is the situation, does the Court have power to transfer the suit? Or the Court can only strike it out.
Non-compliance with Section 98 of the Sherriff and Civil Processes Act – ; Izeze v INEC and Ors (2018) LPELR 44284 SC. We should mention, that in the course of your research you would also find the stream of authorities to the effect that non-compliance with Section 97 of the Act is a mere irregularity. It is also noteworthy that the Court of Appeal has held that the NICN is not bound by the provisions of Section 97, 98 and 99 the Sheriff and Civil Processes Act. See this – https://www.nicn.gov.ng/view-judgment/1696 and this https://www.pressreader.com/nigeria/thisday/20190108/281685435984648
Lack of service of the suit’s processes as prescribed by the relevant law – Otobaimere v. Akporehe
Signing of the writ by a Law firm instead of a legal practitioner – Okafor v Nweke [2007] 10 NWLR (Pt. 1043) 521,
Failure to sign the writ,
The case is caught up by Statute of Limitation (i.e. statute bar), – on this point, the case of Sifax v Migfo Ltd is noteworthy.
The principle of res judicata
Failure to comply with a condition precedent to instituting the action
Failure to sue the proper party(ies) And Suing A Non-Juristic Person; On Suing Proper Parties See – Cotecna International Limited V. Churchgate Nigeria Limited & Anor (2010) LPELR-897(SC),
Absence of locus standi – Union Bank V. Estate Of Late Clement Ogeh (2018) LPELR-46701(CA)

Sleep Capsule 2: Considering the core legal issue in the case/suit, how did the adverse party go about his long trip to getting favorable judgment. In other words, review the case of the adverse party for its weak points or your sweet spots. We’d mention a few questions to support your deliberations on this point.

Who bears the burden of proof in this case? This question is most important.
What was the applicable Law(s) to this case and did the Claimant prosecute this case with proper reference to it? – See the case of SPDC v Minister of Petroleum Resources and 2 Ors NICN decision
Are there any specific requirements or ingredients the adverse party was expected to prove or failed to prove? A vital example comes to bear at this point. It is this – in libel cases, the law now requires a Claimant to provide third party testimony of the effect of the defamatory statement on him.
What facts were pleaded? What do the pleadings when put together say? In other words – what implications do they lead to? In deliberating on this point, it is important to note the rules of pleadings. For the Claimant, some matters are to be specifically pleaded if not he may not be able to rely on them. For the Defendant, a bare or general denial may spell more doom than expected. This is because a general denial has been held to amount to an admission – see the following cases; First Bank of Nigeria Vs. T.S.A. Industries Ltd (2007) All FWLR (Pt. 352) 1719, 1734, DORKUBO & ORS v. UDOH & ANOR. For both parties, it is trite and established that pleadings do not constitute evidence and therefore when a pleading is not supported by evidence – whether oral or documentary, it is deemed abandoned by the Court. Hence such a pleading goes to no issue and by the long line of authorities, such a pleading is to be disregarded by the Court as the Court has no business in considering it[1].
What evidence was presented to the Court for the adverse party? Does the evidence presented have probative value? Was the evidence at variance with the pleadings? This might be the meat and grind of your deliberations. Before the deliberation at this point of writing the address, we suggest that there should have been initial deliberations when fashioning out the strategy intended for the case. The initial deliberations would or should have considered a myriad of issues (which we will sufficiently exemplify in part 3). Also, we will admit that this ‘sleep capsule two’ looks identical to the previous dossier of questions we suggested to you in part 1 of this article. There’s just no way to avoid the questions – so please bear with us.

4. Pick Brains, not beans:

By picking brains, we mean ask questions. You might have to discuss the suit or your proposed arguments with fellow colleagues. But we should mention that such discussions in deserving instances should have due regard to the attorney-client privilege you have with the Client.

5. Research, take notes and…research

To our minds, research is the soul of legal writing. It unearths the unknown and clarifies the mysterious. We know it can be a tasking affair but certainly it is one the Lawyer cannot avoid or bypass. In the course of researching on the legal questions raised, it might be wise to research on ancillary issues that could tilt the decision of the Court in one’s favor. For a Defendant – a jurisdictional issue could greatly tip the scales of justice. This is not to suggest that jurisdictional issues can be raised in all suits. No, not at all. In most cases, Claimant’s counsel is careful enough to sign the writ of summons, endorse for service outside jurisdiction in compliance with the Sheriff and Civil Processes Act and sue a juristic person.

We draw the curtain here. In the next Part, we will deal with the meat of the address. So please get ready to chew the law and facts of your next case with us.

If you have any questions or want to make any further and better suggestions, please shoot us an email – lawgicallyspeakingng7@gmail.com, 08128926652 (Whatsapp or text).

Written by Nkobowo Frederick LLB, BL

Further Case Law Suggestions

On the burden of proof borne by the Claimant in civil cases – Hadyer Trading Manufacturing Limited & Anor v. Tropical Commercial Bank (2013) LPELR-20294(CA) Pp. 53-56, Paras. C-G, Darma & Ors v. Mustapha (2014) LPELR-23734(CA).

On Lawyer’s address not being evidence – Mains Ventures Ltd v. Petroplast Ind. Ltd (2000) 4 NWLR (pt.651) 151 at 166,

On the relationship between pleadings and evidence; In ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414, their Lordships of the Apex Court held that: “Once a party abandons his pleadings, it is not the business of the Court to look for evidence from the other party so as to base a case on facts which the plaintiff does not plead and cannot rely upon. Judgment is given in respect of material facts pleaded and proved at the trial. The parties as well as the Court cannot go outside the pleadings. The Court is therefore bound to adjudicate on the issues arising from the pleadings. Where therefore evidence led is not based on the facts pleaded such evidence goes to no issue. EMEGOKWE VS. OKADIGBO (1993) NSCC P. 220.”

[1] ADEKUNLE v ROCKVIEW HOTEL LTD. [2004] 1 NWLR [Pt. 853] 161 @ 178 at 179, BUHARI v OBASANJO [2005] 13 NWLR [Pt. 941] 1 SC; ITO v EKPE [2000] 2 SC 98; MAKINDE v AKINWALE [2000] 1 SC 89; ADELEKE v IYANDA [2001] 13 NWLR [Pt. 729] 1 SC; ADENIRAN v ALAO [2001] 18 NWLR [Pt. 745] 361 SC; ETOWA ENANG & ORS vs E.I ADU (1981)1 NSCC 453 at 459 lines 15-20, NEWBREED ORGANISATION LTD. VS J.E ERHIOMOSELE (2006) 5 NWLR (PART 974) 499; EZEANAH VS ALHAJI ATTAH (2004) 2 SCNJ 200 at 235; (2004) 7 NWLR (PART 873) 468: IFETA VS SPDC NIG.LTD. (2006) 8Â NWLR (PART 983) 585; WOLUCHEM VS GUDI (1981) 5 SC 291; BASHEER VS. SAME (1992) 4 NWLR (PART 236) 491; UWEGBA VS ATTORNEY GENERAL, BENDEL STATE (1986) 1Â NWLR (PART 16) 303; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR (PART 146) 578 at 590; AJUWON VS, AKANNI (1993) 9 NWLR (PART 316) 182; ELEGUSHI VS. OSENI (2005) 14 NWLR (PART 945) 348.

Welcome to part 2 of this discourse on preparing final written addresses. We ended Part 1 at the point where it became a 12-minute read. Now we hope that didn’t end up boring – do you think it did? Not to worry. In this part, we will try throwing in some anecdotes, tales and maybe a little bit of sarcasm

Law Report

LAKANMI V A.G. WESTERN NIGERIA (FULL REPORT)

fredericknkobowo

August 18, 2022

IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 24TH DAY OF APRIL, 1970

APPEAL NO: SC.58/69

Citation:
(2000) 6 NWLR (Pt.660)228

Before Their Lordships

ADEMOLA ADETOKUNBO, J.S.C.

GEORGE BAPTIST AYODOLA COKER, J.S.C.

IAN LEWIS, J.S.C.

CHARLES OLUSOJI MADARIKAN, J.S.C.

UDO UDOMA, J.S.C.

BETWEEN

1. E.O. LAKANMI
2. KIKELOMO OLA
(by her guardian and next friend E.O. Lakanmi) APPELLANTS

AND

1. THE ATTORNEY-GENERAL (WEST)
2. THE SECRETARY TO THE TRIBUNAL
3. THE COUNSEL TO THE TRIBUNAL RESPONDENTS

LEAD JUDGEMENT DELIVERED BY ADEMOLA, C.J.N.

This is an appeal from the Western State Court of Appeal which heard and dismissed the appeal of the appellants from the judgment of the High Court of Western State sitting at Ibadan.

The application before the High Court was for an order of certiorari to remove an order dated August 31, 1967, made by Mr. Justice Somolu in his capacity as the chairman of the Tribunal of Inquiry into the assets of public officers of the Western State, into court, for the purpose of being quashed. The order itself which was admitted in evidence as Exhibit B in the certiorari proceedings reads:-

“Order by Assets Tribunal.

Under the provisions of section 13(1) of Edict No.5 of 1967, it is hereby ordered that Mr. E.O. Lakanmi, Kikelomo Ola (his daughter) and all others who may be holding properties on behalf of or in trust for any of them, shall not dispose of or otherwise deal with any of the said properties of whatever nature (i.e., lands, houses, etc.), whether standing in their names, or in any others of their various names and/or aliases, until the Military Governor of the Western State of Nigeria shall otherwise direct.

2. In particular, it is hereby ordered that the said E.O. Lakanmi and his said daughter mentioned above shall not operate their individual bank accounts by means of withdrawal therefrom without the consent of and only to the extent that the Military Governor of the Western State shall permit in writing.

3. It is hereby further ordered that all rents due on the properties of the said persons from henceforth shall be paid by the tenants thereof into the Western State Sub-Treasury at Ikeja or the Treasury at Ibadan, until the Military Governor shall direct to the contrary pending the determination of the issues involved in the investigation into the assets of all those concerned.

4. Attention of all the persons concerned, and or their partners, co-directors, shareholders or nominees, or anyone who may like to have business transactions with them for any reasons or in any manner whatsoever is invited to these orders and the penalties provided by section 13(2) of the same Edict in case of the infringement thereof.

Dated August 31, 1967.”

The Judge of the High Court on December 21, 1967, dismissed the application, holding that the order was not ultra vires and that Edict No.5 of 1967 was validly made since, according to him, the Federal Military Government Decree No.51 of 1966 was not in question in the Western State of Nigeria when the Edict was made. We shall have cause to say more about Decree No.51 of 1966. He went further to say that the validity or otherwise of the order made by the chairman of the Tribunal could not be challenged since section 21 of Edict No.5 of 1967 states that:

“No defect whatsoever in anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or any proceedings, finding, order, decision or other act whatsoever of any person, the tribunal, or the special tribunal and in particular, no action or proceedings in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any court of law.”

A few days after this judgment, and indeed on December 27, 1967, the appellants filed their notice of appeal with nine grounds of appeal, to the Western State Court of Appeal.

From the grounds of appeal filed, it no doubt became obvious to the respondents what they had to meet at the hearing of the appeal; and when the appeal was pending, the Federal Military Government came to their aid by passing three successive Decrees, namely –

No.37 of 1968 – The Investigation of Assets (Public Officers and Other Persons) Decree, 1968.

No.43 of 1968. -The Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree, 1968.

No.45 of 1968. -The Forfeiture of Assets, etc. (Validation) Decree, 1968, dated August 28, 1968.

These Decrees speak for themselves as their objects are clear, and they applied throughout the Federation. It was therefore no surprise when on October 18, 1968, the Acting Principal State Counsel filed in the Western State Court of Appeal a notice of preliminary objection that the court had no jurisdiction to entertain the appeal on the following grounds, that is to:

“(1) that the proceedings in this appeal relate to a challenge of the validity of an order which has been validated for all purposes under the provisions of section 1(2) of the Forfeiture of Assets, etc. (Validation) Decree, 1968, No. 35 45;

(2) that the said proceedings have abated as from August 28, 1968 by virtue of section 2(2) of aforesaid Decree.”

We recite the whole of the Decree, No. 45 of 1968, leaving out the Schedule, as follows:

”The Federal Military Government hereby decrees as follows:-

1. (1) All orders specified in column 2 of Part A of the Schedule to this Decree and made under the provisions of any enactment or other law (repealed by subsection (1) of section 14 of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968) for the purpose of forfeiting the assets of, or adjudging liable to make reparation, any public officer or other person specified in column 1 of Part A of the Schedule to this Decree, are hereby validated for all purposes with effect from their respective dates of commencement as specified in column 3 of that Part, and accordingly the said orders shall have effect by virtue of this Decree as hereinbefore provided and the assets aforementioned shall be deemed to have been forfeited and the same may be disposed of or otherwise dealt with as provided in those orders.

(2) All orders in writing dated respectively as specified in column 2 of Part B of the Schedule to this Decree and made in respect of the public officers and other persons specified in column 1 of that Part, under subsection (1) of section 13 of the Public Officers and Other Persons (Investigation of Assets) Edict 1967 (repealed as mentioned in subsection (1) of this section) for the purpose of prohibiting dispositions of, or other dealings with, the properties of the said public officers and other persons, except to the extent and in the manner specified in the said orders, are hereby validated for all purposes with effect from the respective dates of the making thereof.

(3) All other orders, notices or documents made or given or other thing whatsoever done under the provisions of any enactment or other law repealed as mentioned in subsection (1) of this section, are hereby validated for all purposes with effect from the dates on which the same were made, given or done respectively.

2. (1) For the avoidance of doubt, it is hereby declared that the validity of any order, notice or document made or given or purported to be made or given or of any other thing whatsoever done or purported to be done under the provisions of any enactment of law repealed as mentioned in subsection (1) of section 1 of this Decree or the circumstances under which the same has been so made, given or done, shall not be inquired into in any court of law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising from this Decree or from any enactment or other law repealed as aforesaid.

(2) Where immediately before the date of commencement of this Decree any proceedings in any court of first instance or on appeal from such court are pending or any right to bring such proceedings has accrued in respect of any matter as to the validity of which courts are precluded from enquiring by subsection (1) of this section, the proceedings or right as aforesaid shall abate as from the date of commencement of this Decree.

3. (1) In this Decree, unless the context otherwise requires- “public officer” has the same meaning as in subsection (1) of section 13 of the Investigation of Assets (Public Officers and other Persons) Decree 1968.

(2) Subject to the provisions of this Decree, this Decree shall be read and construed as one with the Investigation of Assets (Public Officers and Other Persons) Decree 1968, and accordingly, the provisions of the last mentioned Decree shall, with necessary modifications and adaptations, apply with’ respect to orders, notices, documents and other things, whatsoever validated by this Decree.

(3) The provisions of this Decree shall have effect notwithstanding anything to the contrary contained in any decision, determination, judgment or order of any court made or given before the date of commencement of this Decree.

(4) This Decree may be cited as the Forfeiture of Assets, etc. (Validation) Decree 1968 and shall have effect throughout the Federation.”

We have not copied out the Schedule but we have to state that the present applicants’ names were included with others in the Schedule.

When on October 22, 1968 the appeal was to be heard, the Senior State Counsel for the respondents objected in limine on the grounds stated in his notice of preliminary objections aforesaid. As the same grounds were argued before us, we refrain at this stage from setting them out, except to say that the Court of Appeal ruled that Decree No.45 of 1968 was valid and that:

(1) the order, which is the object-matter of the action, has been validated by Decree No.45 of 1968, and

(2) that the Decree has also ousted the jurisdiction of the court.

Fatayi-Williams, JA, who delivered a separate judgment agreed on – (1) but did not deal with (2). The court then proceeded to strike out the appeal. It is from this judgment that the appellants have appealed to this court.

It appears clear from the above that the Western State Court of Appeal did not consider the points involved in the arguments before the high court as that court was of the view that since the passing of Decree No. 45 of 1968, it is without jurisdiction.

We feel ourselves bound, however, although that decision of the high court is now overtaken by events, to deal with some important points raised in the arguments in that court. The arguments to which we refer centre around Federal Government Decrees No.1 of 1966 and No. 51 of 1966, and Edict No.5 of 1967 passed by the Government of Western Nigeria on April 14, 1967. We will consider at this stage the history of these enactments. The Federal Military Government it is true to say, justifies its existence by the passing of Decree No. 1 of 1966. For our purpose, however, section 3 and 4 of that Decree are relevant and we reproduce them as follows:-

3. (1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.

(2) The Military Governor of a Region-

(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and

(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.

(3) Subject to subsection (2) above and to the Constitution of the Federation the Military Governor of a Region shall have power to make laws for the peace, order and good government of that Region.

(4) If any law-

(a) enacted before January 16, 1966 by the legislature of a Region, or having effect as if so enacted, or

(b) made after that date by the Military Governor of a Region, is inconsistent with any law-

(i) validly made by Parliament before that date, or having effect as if so made, or

(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional Law shall, to the extent of the inconsistency be void.”

It is evident from these sections of the Decree that the Federal Military Government is empowered to legislate for the whole of Nigeria and that its powers are in no way derogatory to the powers that Parliament had under section 69 of the Republican Constitution of Nigeria. It is also evident that State Governments shall legislate by means of Edicts (as opposed to Decrees by the Federal Military Government), and for our present purpose, it is clear that the Legislative Lists, namely, the Exclusive Legislative List and the Concurrent Legislative List, as evidenced by our Constitution, are kept distinct by the Federal Military Government. Section 3(2) above provides –

3. (2) The Military Government of a Region –

(a) shall not have power to make laws with respect to any matter included in the Exclusive Legislative List; and

(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter included in the Concurrent Legislative List.”

But on May 24, 1966, Decree No.34 of 1966 was passed.

Section 1 reads – “Subject to the provisions of this Decree, Nigeria shall on May 24, 1966…..cease to be a Federation ….and shall as from that day be a Republic ….”

By Section 2(1) – The Federal Military Government shall be known as the National Military Government.

Section 2(1)(c) – makes the Regions a group of Provinces.

Section 2(3) – deprives a Regional Military Governor of his powers to make laws except by express delegation from the National Military Government.

The National Military Government, as it was then called, on June 28, 1966 passed Decree No. 51 of 1966 – Public Officers (Investigation of Assets) Decree which gives powers as to certain assets of public officers to be investigated. Section 5 of this Decree delegated powers to each Military Governor “in relation to their respective group of provinces” to carry out investigations in their provinces, and subsection (3) states that no order shall be made by a Military Governor except with the prior consent of the Head of the National Military Government.

Thus, it is clear that this Decree, No. 51 of 1966, provided for the investigation of assets of public officers throughout the country.

On September 1, 1966, however, Decree No. 34 was repealed by Decree No. 59 of 1966 and once again, the Government assumed the name Federal Military Government and the position before that Decree (No.34) was restored.

Decree No. 51 of 1966 relating to Investigation of Assets etc., however stands.

On April 14, 1967, the Government of Western Nigeria passed Edict No.5 of 1967 entitled Public Officers and Other Persons (Investigation of Assets) Edict 1967 35 to which we have earlier on referred in this judgment. It was by virtue of this Edict that the order Exhibit B against the present appellants by the chairman of the Tribunal was made.

The arguments before the high court were –

(1) that the Edict No.5 of 1967 is void since it purported to operate in the same field as the Federal Military Government Decree No.51 of 1966, which in fact has covered the whole field, and

(2) that some sections of the Edict are in direct conflict with the provisions of the Decree No.51 of 1966. In the High Court, and indeed in his argument before us, the Attorney- General, Western State admitted the inconsistencies with the Decree but sought that at the time the Edict was enacted (namely, April 14, 1967), the Decree No. 51 of 1966 had no force as a Decree in the Western State. He said further, that the Edict and the Decree were to be read together. The Attorney-General then submitted that Decree No. 51 of 1966 was not recognized in Western Nigeria at the time Edict No.5 of 1967 was passed and went on to say that the cumulative effect of Decree Nos. 34 of 1966, 59 of 1966, 8 of 1967, 13 of 1967 and 27 of 1967 was to make Decree No. 51 unrecognizable.

We have considered earlier on the effects of some of these Decrees like Nos. 34 and 59 and we see nothing worthy of our attention relevant to the point in the other Decree except to say that Decree No.8 of 1967 re-established the position of Decree No.1 of 1966 vesting the Supreme Military Council both the legislative and executive powers of the Government of the Federation.

Arguing further on the point, the Attorney-General relied on the provisions of section 6(i)(a) of the Interpretation Act (No.1 of 1964) which provides that ”the repeal of an enactment shall not revive anything not in force or existing at the time when the repeal takes effect”.

With respect, we find ourselves unable to agree with the Attorney-General that the reading of these various Decrees lead to the conclusion he had put forward. It is clear to us that Decree No. 51 of 1966 was valid and was in operation throughout the country when it was made, and the constitutional changes in the country during that period have not, to our mind, affected it. Further, it was never denied or argued that Decree No.1 of 1966 was at any time ineffective particularly in regard to sections 3 and 4 which we have earlier considered and the effect of this Decree on Edict No.5 of 1967 is to render the latter void.

We entirely disagree with the views of the Judge of the High Court in his consideration of the phrase “cover the field” as applied by the Australian Courts, when he said:-

“The Decree No.51 of 1966 has passed through four constitutional changes in the country. I think it will be sweeping to say that the intention to be inferred was the intention of the Federal Military Government at the time the Decree was enacted. The conditions in this country are unlike what is obtaining in Australia where the Constitution referred to in the cases cited is almost permanent.

But in this country since 1966 January the Constitution of the country has on many times been suspended and the constitutional Decree by which the country is largely governed have been importantly changed four times.”

We fail to see anything in the changes made by the various Decrees in 1966 and 1967 which deprived the Federal Military Government of its right as the Supreme Legislative body to manifest within its powers its intention or to express by enactment a complete, exhaustive and exclusive code, as to what shall be the law governing the investigation of Assets of Public Officers, etc. In our view any other law made by any state on the same subject, is void. This of course is the doctrine of “covering the field” attributed to the Australian Courts, and in accord with the cases:-

i. Ex Parte Mclean 43 C.L.R. 472 at page 483;

ii. The State of Victoria and Ors. v. Commonwealth of Australia and Ors. 58 C.L.R. 618 at page 630; and

iii. O’Sullivan v. Noarlunga Meat, Limited, etc. (1956) 3 All E.R. 177; (1957) 45 A.C. 1.

We therefore reject the views of the Judge of the High Court on the validity of Edict No.5 of 1967. We have no hesitation in holding that the Edict is ultra vires the Decree of the Federal Military Government.

We now direct our attention to the series of events which took place between the judgment of the High Court and the hearing of the appeal in the Western State Court of Appeal. As we mentioned earlier on, during the pendency of the appeal in the Western State Court of Appeal, the Federal Military Government enacted three Decrees, namely: No.37 of 1968, No.43 of 1968 and No.45 of 1968, all of which we will now examine.

(i) Decree No.37 of 1968 was enacted on July 29, 1968 and applies throughout the Federation. It provides for the investigation of the assets of public officers and other persons whether related to them or not. Sections 14 and 12 are relevant.

Section 14(1) repeals certain enactments including:-

(a) Decree No.51 of 1966; and

(b) Edict No.5 of 1967 as from July 29, 1968.

These, as will be remembered, are the contentious Decree and Edict we dealt with earlier and upon which the judge of the High Court was called to adjudicate.

Section 14(2) of Decree No.37 of 1968 is as follows:-

(2) It is hereby declared that –

(a) the repeal of any enactment or law by this Decree shall not affect any order, notice or other document made or thing whatsoever done under the provisions of any enactment or law hereby repealed, and every such order, notice or other document or thing so far as it is subsisting or in force at the time of the repeal shall continue or have effect by virtue of this Decree;

(b) any tribunal of inquiry established under any enactment or law repealed by this Decree and in being immediately before the making of this Decree shall, on its promulgation by any means thereafter, continue as if constituted by or under and for the purpose of this Decree, and matters uncompleted before any such tribunal or pursuant to any enactment or law hereby repealed, prepared and intended for presentation thereto shall, where necessary be continued or completed, either by the same or any other tribunal accordingly by virtue of this Decree.”

And section 12 provides for the validity and exclusion of the court’s jurisdiction. It reads:-

“12. The validity of any direction, notice or order given or made, or of any other thing whatsoever done, as the case may be under this Decree, or under any enactment or other Law repealed by this Decree, or the circumstances under which such direction, notice or order has been given or made or other thing whatsoever done, shall not be inquired into in any Court of Law, and accordingly nothing in the provisions of Chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”

The effect of section 14 is that although subsection (1) repeals Edict No.5 of 1967, under subsection (2), the Tribunal of Inquiry about which this complaint arose is to continue its function, and all orders already made by it are validated and to continue to operate. On the other hand, the effect of section 12 is that despite the provisions of the Fundamental Human Rights in Chapter III of the Constitution, validity of orders, notices and directions made shall not be inquired into by any Court of Law.

(ii) Decree No. 43 of 1968 is dated August 28, 1968 and made to operate as from July 29, 1968; it applies to the whole Federation. It is short and the two sections are as follows:-

“1. The Investigation of Assets (Public Officers and Other Persons) Decree 1968 is amended with effect from its commencement:

(a) in section 12 by omitting all words from “or under any enactment” up to and including the words “whatsoever done”;

(b) in section 14(2) by inserting in paragraph (a) after the word “Decree” where it secondly occurs, the words “so however that the effect of this provision shall not affect any cause or matter pending before a court at the time of such repeal”.

2. This Decree may be cited as the Investigation of Assets (Public Officers and Other Persons) (Amendment) Decree 1968 and shall have effect as hereinbefore provided and apply throughout the Federation.

As will be seen this Decree amended the last Decree, i.e., No.37 of 1968 as from the date it was made and the effect of the amendments was to withdraw the validity and preclusion from the courts which the last Decree had originally provided for. But it would appear that the object had not been achieved, for eight days later, and indeed on August 28, 1968 –

(iii) Decree No. 45 of 1968, the whole of which we had earlier set out in this judgment was passed on August 28, 1968. The provisions of this Decree have a far-reaching effect.

Section 1(1) validates all orders specified in the Schedule.

Section 1(2) refers specifically to Edict No.5 of 1967 (Western States) and validates the order by which the properties of the appellants are attached.

Section 1(3) provides a general cover validating all other orders, notices or documents made or given or anything done by virtue of any enactments within the contemplation of the Decree No. 45.

There can be no doubt of the importance of sections 1 and 2 of this Decree.

Section 2(2) is significant. This section purports to shut out completely any proceedings pending in court either at nisi prius or on APPEAL, in any court whatsoever, with respect to matters contemplated by the Decree. Such proceedings, it stated, shall abate as from the date of commencement of the Decree.

Applying this to the present case, the section purported to shut out the appeal filed on December 27, 1967 to the Western State Court of Appeal and, as we observed earlier, the section was relied upon before that court. After hearing arguments on the ousting of its jurisdiction, the Court of Appeal upheld the validity of the Decree and declared itself without jurisdiction to hear the appeal. Not only are the provisions of the Decree No. 45 of 1968 designed to oust the jurisdiction of the courts generally, but there was a schedule tied to sections 1(1) and 1(2) of the Decree. These are very important as we shall point out later. Part A of the Schedule sets out, inter alia, the names of particular officers whose forfeiture orders, however made, are validated. The name of the first appellant is shown as item No. 4(a). Part B of the Schedule contains the names of officers and other persons affected by the Decree and the names of the appellants appear as item No.5.

It is therefore clear what the Decree (No. 45 of 1968) sets out to do and that the object of the legislature was directed to the appellants and their pending appeal.

It is in this context that the question has arisen whether this Decree is valid or not. In effect, is the validity of Decree No.45 of 1968 pronounced by the Western State Court of Appeal correct? This is the substance of the appeal before us. Counsel on both sides agreed that to determine the validity of this Decree, it is necessary to determine the basis of the power of the Federal Military Government to make laws. To do this, we must of necessity examine the events in the country as from January, 1966 and how the Federal Military Government came into being.

In this argument before us, the Attorney-General for the Western State, on behalf of the respondents, said what took place in January, 1966 was a revolution and the Federal Military Government is a revolutionary government which seized power on January 15, 1966. It accordingly has an unfettered right from the start to rule by force and by means of Decrees and therefore nothing from the Republican Constitution of 1963 can be implied into the new mode of ruling the country; that section 3(1) of Decree No.1 of 1966 gave the Federal Military Government unlimited power of legislation on any subject either by Decree or by part of the Constitution which has not been abrogated; that the doctrine of necessity which was propounded by counsel for defence, and about which we say more later, does not apply. Further, that section 6 of Decree No. 1 of 1966 (see above) must be construed literally and should not be construed to doubt the validity of a decree as this court has interpreted an edict in the case of Adamolekun v. The Council of the University of Ibadan (1968) N.M.L.R. 253 and that that interpretation can only be limited to an Edict. In short, the submission is that there is nothing in the Constitution which can make a decree void. He further submitted that once a document purporting to be a Decree is signed by the Head of the Federal Military Government it cannot be challenged and no court has any jurisdiction to adjudicate on its validity. The order of August 31, 1967 by the chairman of the Assets Tribunal, he submitted, was validly made since Decree No. 45 of 1968 made on August 28, 1966 has validated everything done under it.

Chief Williams, counsel for the appellants, submitted that the Federal Military Government is not a revolutionary government but a constitutional interim government, which came into being by the wishes of the representatives of the people, and whose object is to uphold the Constitution, excepting so far as it had to derogate from it under the doctrine of necessity whereby it was granted power. That thus the Federal Military Government assumes the continued existence of the Constitution and in its Decree No. 1 of 1966 (supra) impliedly provided for a separation of powers between the legislature, the executive and the judiciary as did the Constitution of Nigeria; that this must be perpetuated unless necessity otherwise arose compelling it under section 3 of Decree No. 1 of 1966 to make laws by Decree “for the peace, order and good government of Nigeria on any matter whatsoever.” This power, it was submitted, must not be read as unfettered powers to legislate to amend the Constitution save in so far as properly justified by the doctrine of necessity. In regard to section 6 of Decree No.1 of 1966 and the Adamolekun’s case (supra), Chief Williams submitted that section 6 of Decree No. 1 has to be read down as this court put it in Adamolekun’s to only not being able to challenge the legislative authority of a decree; that is, not to challenge the right of the Federal Military Government to make a law by way of a decree signed by the Head of the Federal Military Government as proved by sections 4 and 5 of Decree No. 1 of 1966. Further that a decree prevails over the Constitution only to the extent that the decree, if “otherwise” properly made, could amend the “Constitution, Finally, that the order Exhibit B made on August 31 1967 by the Chairman of the Assets Tribunal was not validly made, since Decree NO.45 of 1968 which sought to validate it (and thus implied that it was otherwise invalid) was a legislative act which impinged upon the sphere of the judiciary and to that extent invalid as an executive interference into the sphere of the judiciary.

Now, to understand, the doctrine of necessity so propounded, we must go into history. Nigeria before January 1966, under its Republican Constitution of 1963 provided, inter alia, for:-

(i) A President of the Republic, section 34;

(ii) A bi-cameral Legislature Section 41:

(iii) An executive, known as Council of Ministers, sections 84, 87, etc., and

(iv)A Judiciary vested with full judicial powers, section 111 et seq.

All these functioned normally until January 15th, 1966, when a section of the army rebelled in different parts of the country. Two Regional Premiers were put to death and the Prime Minister of the Federation and one of his Ministers were captured and taken to an unknown destination; also some senior members of the army were killed. The events which bestirred the country were unprecedented and serious constitutional upheavel was created. The head of the army rallied his men round and the rebels were arrested. The Prime Minister’s whereabout was unknown; the Minister who was apparently next to him and had previously acted for him, was out of the country. The President of the Republic was also away from the country, but there was an acting President. It appeared however that the Council of Ministers met without the Prime Minister and decided to hand over the Administration of the country to the Armed Forces before the situation got worsened. The full text of the Acting President’s speech delivered on January 16, 1966, is contained in Government Notice No.147 dated January 16 1966 and it reads:-

“FULL TEXT OF HIS EXCELLENCY THE ACTING PRESIDENT’S SPEECH

“I have tonight been advised by the Council of Ministers that they had come to the unanimous decision voluntarily to hand over the Administration of the country to the armed forces of the republic with immediate effect. All ministers are assured of their personal safety by the new administration. I will now call upon the General Officer Commanding Major-General Aguiyi-Ironsi, to make a statement to the nation on the policy of the new administration. It is my fervent hope that the new administration will ensure the peace and stability of the Federal Republic of Nigeria and that all citizens will give them their full co-operation.”

This statement by the Acting President was broadcast to the nation. Following this, and also broadcast and published as Government Notice No.148 of the same date, (January 26, 1966), is the speech of Major-General Aguiyi-Ironsi. It reads, in part:-

FULL TEXT OF THE SPEECH OF MAJOR-GENERAL J.T.U. AGUIYI-IRONSI, THE GENERAL OFFICER COMMANDING THE NIGERIAN ARMY.

”The Government of the Federation of Nigeria having ceased to function, the Nigerian Armed Forces have been invited to form an interim Military Government for the purposes of maintaining law and order and of maintaining essential services.

2. This invitation has been accepted and I, General J.T.U. Aguiyi-Irorisi, the General Officer Commanding the Nigerian Army, have been formally invested with authority as Head of the Federal Military Government, and Supreme Commander of the Nigerian Armed Forces.

Suspension of certain parts of the Constitution.

The Federal Military Government hereby decrees:

(a) The suspension of the Provisions of the Constitution of the Federation relating to the Office of President, the Establishment of Parliament and of the Office of Prime Minister.;

(b) The suspension of the provisions of the Constitution of the Regions relating to the establishment of the Offices of Regional Governors, Regional Premiers and Executive Councils, and Regional Legislatures …..”

Thus the Federal Military Government Notice came into being and assumed power and responsibilities. It is to be noted from the Government Notice (No. 148) set out above that the invitation to the Armed Forces, which was duly accepted, was to form an interim Military Government and it was made clear that only certain sections of the Constitution would be suspended. It was evident that what the Government thus formed is an interim government which would uphold the Constitution of Nigeria and would only suspend certain sections as the necessity arises.

At this stage it is incumbent on us to clear one point. It must be accepted that the Council of Ministers validly met at the time. The Acting President accepted that they met and they gave him an assessment of the situation. In our view, the Council of Ministers could validly meet in the absence of the Prime Minister, since the evidence available at the time was that the Prime Minister was alive but circumstances made it impossible for him to be present. If he had been killed or he was dead at the time, the situation might have been different.

It is apt to point out, however, that the Attorney-General does not accept the doctrine of necessity, nor does he seek to argue whether or not necessity has been shown in this case. He bases his case on the fact that necessity, or rather the doctrine of necessity, does not arise for our consideration. We understand him to say that question of necessity only arises with Colonial Governments, as we stated earlier, what happened in Nigeria in January 1966, in the submission of the Attorney-General, was a revolution.

It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware has a civilian government invited an army take-over, or the armed forces to form an interim Government. We disagree with the Attorney-General that these events in January 1966 are tantamount to a revolution. As Chief Williams for the appellants puts it, quoting from the Shorter Oxford Dictionary, a revolution occurs when ”there is an overthrow of an established government by those who were previously subject to it” or ”where there is a forcible substitution of a new ruler or form of Government”. These, from the facts, did not take place in Nigeria in 1966 as the situation to which we have previously referred – a rebellion by some members of the Armed Forces – caused the Acting President, with the advice of the Council of Ministers in the absence of the Prime Minister, to hand over power to the Armed Forces. We venture to put the attitude of the Acting President and the Council of Ministers to the head of the Army thus – your men have started a rebellion, which we fear may spread; you have the means to deal with them. We leave it to you to deal with them and after this, return the administrative power of the Government to us. (back to top?)

Cases of revolution abound in history and in law, and an example is to be found in Pakistan where there is a proclamation annulling the Constitution of the country. In Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514; the Pakistan case of the State v. Dosso (1958), 2 P.S.C.R. 180, was referred to at page 538 in the following terms:

“That the President’s proclamation of October 7, 1958 by which the Constitution of 1956 was annulled and Martial Law was proclaimed constituted an ‘abrupt political change,’ not within the contemplation of the said Constitution, that is a revolution. A victorious revolution is an internationally recognized legal method of changing a constitution. Such a revolution constitutes a new law creating organ, by virtue of having become a basic law creating fact. Laws which derive from the ‘old order’ may remain valid under the ‘new order’ only because validity has expressly or tacitly been vested in them by the new constitution, ‘and it is only the contents of these norms that remain the same, not the reason of validity’. Further no jurist would maintain that even after a successful revolution, the old constitution and the laws based thereupon remain in force on the ground that they have not been nullified in a manner anticipated by the old order itself”.(back to top?)

The Attorney-General submits that both the legislative and executive were swept away by the uprising in January, 1966 and the judiciary was altered by prescribing a new code of appointing Judges; all these he said were nothing short of revolution; that the Republican Constitution of 1963 no more exists except and in so far as the revolutionary government decreed: that the authority of the Federal Military Government is not derived from the 1963 Constitution but from the revolution itself. He also relied on Hogde v. The Queen (1883) 9 A.C. 117. The Attorney-General argued further that there is no provision in the 1963 Constitution enabling the Acting President, in the absence of the Prime Minister, even with the advice of other Ministers of the Council of Ministers, to hand over the administration of the country to the Armed Forces of the Republic. What happened, he said, was that the Government “having ceased to function” agreed to abdicate its powers and that therefore there was a revolution.

We think it wrong to expect that constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the doctrine of necessity. Moreover, it must be remembered that it is not a case of seizing of power by the section of the Armed Forces which started a rebellion. The rebellion had been quelled; the insurgents did not seize power nor was it handed over to them. But the state of affairs in Pakistan to which The State v. Dosso (supra) refers is different. In Pakistan the President had issued a proclamation annulling the existing Constitution. There was a disruption of the Constitution and the national legal order by an abrupt political change not contemplated by the Constitution. Such a change is a revolution.

The submissions by the Attorney-General

eave no room for the doctrine of necessity. He argued that as there was a revolution in the country in 1966, it is not permissible to read into the actions of the Federal Military Government any fetter arising out of the Republican Constitution of 1963 and the Government could legislate as it thought fit and could suspend and modify portions of that Constitution as it thought fit; that section 3(1) of Decree No.1 of 1966 should be given its plain meaning and nothing should be read into it: that also the proviso to section 1 of the Constitution should be given its literal meaning and that it puts no limitation on the power of a decree and in effect a decree automatically prevails over the Constitution whether or not it is specifically or impliedly inconsistent with it. He referred us in support, to the case of Smith v. East Elloe Rural District Council (1956) A.C. 736 where at page 751 Viscount Simonds said:

“My Lords, I do not refer in detail to these authorities only because it appears to me that they do not override the first of all principles of construction, that plain words must be given their plain meaning. There is nothing ambiguous about paragraph 16: there is no alternative construction that can be given to it; there is in fact no justification for the introduction of limiting words such as “if made in good faith”, and there is the less reason for doing so when those words would have the effect of depriving the express words “in any legal proceedings whatsoever” of their full meaning and content.”

The cases Edinburgh Railway Corporation v. Wauchope (1842) 8 E.R. 279 and Lee and Another v. The Bude and Torrington Junction Railway Corporation (1871) 6 L.R.C.P. 576 were referred to in support of the principle that, if two statutes are inconsistent, the latter of the two statutes prevails; and as such if Decree 45 of 1968 is inconsistent with Decree No. 1 of 1966, the Decree of 1968 must prevail.

We do not doubt the validity of these cases but the real answer is, to our mind, to be found in the dicta of Lord Reid in the case Anisminic Limited v. The Foreign Compensation Commission and Another (1969) 2 W.L.R. 163 at page 168 where he said:

‘The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that “determination” means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity, you are not questioning the purported determination – you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned.”

As we stated earlier in this judgment, the Attorney-General does not accept the presumption of necessity. We have earlier on pointed out that in our view the Federal Government is not a revolutionary government. It made it clear before assuming power that the Constitution of the country still remains in force, excepting certain sections which are suspended. We have tried to show that the country is governed by the Constitution and Decrees which, from time to time, are enacted when the necessity arises and are then supreme when they are in conflict with the Constitution. It is clear that the Federal Military Government decided to govern the country by means of the Constitution and Decrees. The necessity must arise before a decree is passed ousting any portion of the Constitution. In effect, the Constitution still remains the law of the country and all laws are subject to the Constitution excepting so far as by necessity the Constitution is amended by a Decree. This does not mean that the Constitution of the country ceases to have effect as a superior norm. From the facts of the taking over, as we have pointed out, the Federal Military Government is an interim Government of necessity concerned in the political cauldron of its inception as a means of dealing effectively with the situation which has arisen, and its main object is to protect lives and property and to maintain law and order. As Willes, J. put it in Phillips v. Eyre (1871) 6 L.R.Q.B 1 at page 16:

“This perilous duty, shared by the Governor with all the Queen’s subjects, whether civil or military, is in an especial degree incumbent upon him as being entrusted with the powers of government for preserving the lives and property of the people and the authority of the Crown; and if such duty exists as to tumultous assemblies of a dangerous character, the duty and responsibility in case of open rebellion are heightened by the consideration that the existence of law itself is threatened by force of arms and a state of war against the Crown established for the time. To act under such circumstances within the precise limits of the law of ordinary peace is a difficult and maybe an impossible task and to hesitate or temporize may entail disastrous consequences.”

In the case of Madzimbamuto v. Lardner-Burke (1969) 1 A.C. 645 at page 740 Lord Pearce, on the doctrine of necessity said:

“The principle of necessity or implied mandate is for the preservation of the citizen, for keeping law and order, rebus sic stantibus, regardless of whose fault it is that the crisis had been created or persists.”

Reference may also be made to the Cyprus case of Attorney-General for the Republic v. Mustafa Ibrahim of Kyrenia (1964) 3. Supreme Court of Cyprus 1. In that case owing to the immutable nature of the constitution of Cyprus and the political secession of the Turkish members of the judiciary and the legislature, the courts and the parliament were unable to function. The Greek members of Parliament took upon themselves to pass a “law” providing for a new Supreme Court with no racial quorum, such as had been provided by the Constitution. The new court, staffed by Greek Judges only, was set in motion and started to function. It was contended that the “law” being unconstitutional was a nullity; but all the three Judges held that the “law” should be read into the Constitution, by applying the doctrine of necessity, and that the new court was only constituted. We quote a portion of the judgment of Josephides, J. where he said as follows:

“Faced with the non-functioning of the two superior courts of the land and the partial breakdown of the district courts, the Government had to choose between two alternatives, viz, either to comply with the strict letter of the constitution (the relevant articles being unalterable under any condition), that is, cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State (vide Prof. Alessi, ubi supra, at pages 218-9; or to deviate from the letter of the Constitution, which had been rendered inoperative by the force of events (which situation could not be foreseen by the framers of the constitution), in order to do what was imperatively and inevitable necessary to save the judicial power temporarily until return to normal conditions so that the whole State structure may not crumble down. I have no hesitation in arriving at the conclusion that in these exceptional circumstances it was the duty of the government through its legislative organ, to take all measures which were absolutely necessary and indispensable for the normal and unobstructed administration of justice. I agree with the submission of respondent’s counsel that the measures taken should be for the duration of the necessity and no more. This is also conceded by the Attorney-General of the Republic. The question now arises: Did the legislature, do what was absolutely necessary in the circumstances or did it exceed it?”

By recognizing the fact that there is a doctrine of necessity we do not alter the law, but apply it to facts as they do exist. We are unable to find that the facts of cases cited to us by the Attorney-General do fit in with the events which took place in this country in January, 1966: but they are basically cases of revolution. In this connection and before us we conclude this particular aspect of the matter; we would like to refer to the case of Uganda v. Commissioner of Prisons (1966) E.A.L.R. 514, where there were no pretentions on the part of the Prime Minister who abolished the Constitution of the country in the National Assembly and submitted a new one, which installed him as Executive President with power to appoint a Vice-President contrary to the Constitution of the country – actions which could only appropriately be described in law as a revolution.

Now we come to consider the effect of Decree No.45 of 1968 which Chief Williams, for the appellants has attacked as a usurpation of judicial power. The questions we ask ourselves are, was the passing of this decree a performance of legislative function as envisaged by section 3(1) of Decree No.1 of 1966? and does it go beyond the requirements or demands of the necessity of the case? Chief Williams for the appellants has argued that the effect of Decree No.45 of 1968 was a usurpation of judicial power as it deprived the appellants of their properties without compensation by legislative act. He referred us to section 31 of the Republican Constitution 1963 and to section 31(3)(b) which reads:

“Nothing in this section shall be construed as affecting any general law ….. (b) for the imposition of penalties or forfeitures for breach of the law, whether under civil process or after conviction of an offence.”

The subsection, he said, only contemplated deprivation of property as punishment if the deprivation was to be without compensation; the section was dealing with general law and not ad hominem laws.

We must here revert again to the separation of powers, which the Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and the Judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers the courts are vested with the exclusive right to determine justiciable controversies between citizens and between citizens and the State. See Attorney-General for Australia v. The Queen (1957) A.C. 288 at page 311, etc. In Lovell v. United States (1946) 66 Supreme Court Reports 1073 at page 1079, Mr. Justice Black said as follows:

“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

These principles are so fundamental and must be recognised. It is to define the powers of the legislature that Constitutions are written and the purpose is that such powers that are left with the legislature be limited; and that the remainder be vested in the courts.

We have earlier pointed out the crushing effect of Decree No.45 of 1968 on the individuals it named, including the appellants. Part A of the Schedule to the Decree names particular individuals and mentions specific orders made concerning these individuals including the first appellant whilst Part B of the Schedule mentions names of particular individuals whose properties are affected as well as the dates of the Orders made against them on their properties, including the names of both appellants. The particular order, Exhibit B, which they are contesting, was specifically mentioned. Earlier, Decree No.37 of 1968 sought to repeal Edict No.5 of 1967, but section 14(2)(a) left unaffected the order made directly against the appellants. At the time it was passed, the appeals of the appellants were pending in courts. Section 12 stifled any further rights of the appellants to continue their appeal, thus depriving them of their constitutional rights. Later, Decree No.43 of 5 1968 purported to restore their rights but it was quickly followed by No.45 of 1968 which, by section 2(2) stipulates that all pending matters before any court in respect of all matters, including the appeals of the appellants, are abated as from the date the Decree was passed, and validated all the orders which affected the second appellant who had not been included in the earlier Decree No.37 of 1968 not being a public officer. It also validated all orders and decrees which had been wrongly made, all undoubtedly pointing to the appellants. These enactments are directed against certain named individuals with the aim of punishing them or depriving them of their properties. These individuals were not being dealt with as general members of the public for whom laws are passed generally. It is therefore necessary to consider more closely the nature of the legislation. It was this type of legislation that was being dealt with in Uyanage and Others v. The Queen (1967) 1 A.C. 259 at page 289-290; (1966) All E.R. 650 at 659 when Lord Pearce said in his judgment as follows:-

“In so far as any Act passed without recourse to section 29(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires. It goes without saying that the legislature may legislate, for the generality of its subjects, by the creation of crimes and penalties or by enacting rules relating to evidence. But the Acts of 1962 had no such general intention. They were clearly aimed at particularly known individuals who had been named. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the Judges, the law should revert to its normal state. The first Act was wholly bad in that it was a special direction to the Judiciary as to the trial of particular prisoners who were identifiable and charged with particular offences on a particular occasion …As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity.”

Such act of usurpation was considered an infringement of the Constitution, as Lord Pearce at page 291 of the Report continued:

“One might fairly apply to these Acts the words of Chase, J., in the Supreme Court of the United States in Calder v. Bull (1789) 3 Dallas U.S.S.C. 386;

These acts were legislative judgments; and an exercise of judicial power.”

He further continued:-

“Blackstone in his Commentaries Vol. 1 (4th Edn.) p. 44 said:-

‘Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’

If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the Judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had the power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringed the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’

Among other cases which we have also considered for what is a judicial power may be mentioned Shell Company of Australia Limited v. Federal Commissioner of Taxation (1931) A.C. 275, and in respect of usurpation of judicial powers, we would refer to Buckley v. Attorney-General of Eire (1950) Irish Reports 67 where O’Byrne, J. said at page 84:

“There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Article 6. The effect of that article and of Articles 34 to 37, inclusive, is to vest in the courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas to dismiss the plaintiff’s claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution as being an unwarrantable interference by the Oireachtas with the operations of the courts in a purely judicial domain.”

We are not unmindful of the fact, that not all enactments of this nature are judicial legislation. The Attorney-General cited some cases showing instances of legislation which though they have their faults were held not to intrude on the sphere of the judiciary: every case must depend upon the facts surrounding it. Cases to which we were referred like (1) Roche v. Kronheimer (1921) 29 Q.L.R. 329; (2) Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth (1943) 67 C.L.R. 116; (3) Australian Communist Party. v. The Commonwealth (1950) 83 C.L.R. 1. In these Australian cases the enactments were found by the courts to have been justified on the facts and in the circumstances postulated by them. And in Kariapper v. Wijesinha and Another (1968) A.C. 717 it was held that a Ceylon Act was intra vires. As this is a case more favourable for the submissions made to us by the Attorney-General, we will consider it more fully. It is the case where an Act passed by the Ceylon Parliament imposed disabilities upon any person “to whom the Act applies” and “a person to whom the Act applies” was defined to mean “each person specified in the schedule to this Act in regard to whom the relevant commission in its report found that any allegation or allegations of bribery had been proved.” The disabilities imposed by the Act extended to disqualification for seven years from registration as an elector and from voting at elections; disqualifications for seven years from being a candidate for election to the House of Representatives or to any local authority; disqualification for seven years from being elected or appointed as Senator or member of House of Representatives or a member of any local authority or sitting and voting as such: and disqualification for all time from being employed as a public servant. The appellant in the case and others were Senators and were concerned in the matter to which the Act referred. As we stated earlier, the Act was held not to be an exercise of judicial power. We have considered this case closely and comparing it with the present case on appeal we have come to the conclusion that the facts were clearly different. The reasoning in the case was that the Act was not a judicial usurpation for reasons stated in the judgment. Decree No.45 of 1968 was not in form of an alteration of any existing law but it was clearly a legislative sentence and the Decree was spent on the persons named in the Schedule.

We must once again point out that those who took over the Government of this country in 1966 never for a moment intended to rule but by the constitution. They did, in fact, recognize the separation of powers and never intended an intrusion on the judiciary. Section 3(1) of the Decree No.1 of 1966 does not envisage performance of legislative functions as a weapon for exercise of judicial powers, nor was it intended that the Federal Military Government should, in its power to enact Decrees, exceed the requirements or demands of the necessity of the case. In the present case we are satisfied that Decree No.45 of 1968 did go beyond the necessity of the occasion.

The Attorney-General has argued that validation laws are normal legislative functions and are not usurpation of judicial power, even though they affected judgments given by the courts. Also, that it was common practice to enact laws, and they are valid, which oust the jurisdiction of the courts. He cited the Indian Divorces (Validity) Act 1921, Validation of Wartime Leases Act 1944, and submitted that, Acts of Indemnity have been passed to legalise acts which are of doubtful character performed during emergencies and the like – Phillips v. Eyre (supra) and Eshugbayi (Indemnity for Deportation) Ordinance passed in Nigeria 1931, He also referred to a law passed in Western Nigeria – The Constitution of Western Nigeria (Amendment) Law, 1963 reversing the Privy Council’s decision in Adegbenro v. Akintola (1963) A.C. 614. We have examined all these enactments and it is of the utmost importance to note that each of these enactments could not be said to have gone beyond the exigencies of the necessity of the occasion which brought them about. In the present case, we observe that no argument was put forward as to whether or not the Decree (No. 45 of 1968) goes beyond the actual demand or exigencies of the necessity of the occasion. Clearly, necessity for the Decree was not shown or established throughout the proceedings. Further, as stated by counsel for the appellant, the amendment of section 33(10) of the Constitution of Western Nigeria (Amendment) Law 1963 following the Privy Council decision in Adegbenro v. Akintola (supra) was never tested in court. Neither the legislative competence of the legislature nor the legislative validity of the law has been put to the test.

At the passing of Decree No.37 of 1968, the present case was pending in the Western State Court of Appeal. Although the Decree repealed Edict No.5 of 1967 and purported to withdraw the Constitutional rights to challenge by way of action and prerogative writs in any court of law provided for in Chapter III of the Constitution dealing with Fundamental Human Rights. The Decree refrained from touching the order made against the appellants. It would appear that more thoughts were given to this enactment and Decree No.43 of 1968 followed. But Decree No.45 of 1968 is the pith and meat of the matter. It validated everything that was wrong or wrongly done, referred specifically to the names of the appellants in its Schedule, without defining a new ‘public officers’. Validated orders made against the second appellant, who according to section 13(1) of Decree No.37 of 1968, could not by any stretch of imagination be considered a public officer. In an attempt to crown the efficacy of the Decree, it purported to shelve all actions and appeals pending before any court. In short, it stops the pending appeal of the appellant in the Western State Court of Appeal. We have come to the conclusion that this Decree is nothing short of legislative judgment, an exercise of judicial power,. It is in our view ultra vires and invalid.

We are in no doubt that the object of the Federal Military Government, when it engaged in this exercise, is to clean up a section of the society which had engaged itself in corrupt practices – those vampires in the society whose occupation was to enrich themselves at the expense of the country. But if, in this pursuit, the Government, however well-meaning, fell into the error of passing legislation which specifically in effect, passed judgment and inflicted punishment or in other words eroded to the jurisdiction of the courts, in a manner that the dignity and freedom of the individual, once assured, are taken away, the courts, must intervene. Every case, we reiterate, must be considered on its own facts and the materials placed before us in this matter lead to no other conclusion than that the provisions of the Decree No.45 of 1968 are such as are not reasonably necessary to achieve the purpose which the Federal Military Government set out to fulfil.

This appeal will therefore be allowed and both the Edict No.5 of 1967 and the Decree No.45 of 1968 are declared ultra vires; they are null and void.

Now, we recorded during the argument before us, that counsel on either side, if this case were to be sent back to the Western State Court of Appeal to hear the arguments on the issue before the High Court, would have nothing more to add to their arguments and submissions before us. No useful purpose will be served therefore in sending the case back. We have already pointed out that we cannot support the judgment of the Judge of the High Court and also that the preliminary objection to the jurisdiction of the Western State Court of Appeal was wrongly upheld.

It follows that the order dated August 31, 1967, made by the Assets Tribunal and which was admitted in evidence as Exhibit B in the certiorari proceedings must be quashed, and is hereby quashed.

The orders for costs made both in the High Court and in the Western State Court of Appeal are hereby set aside. The appellants are entitled to costs in the two courts, which we now assess at seventy-five guineas in the High Courts and fifty guineas in the Court of Appeal respectively. Costs in this court in favour of the appellants are assessed at 100 guineas.

Order quashed. Edict No. 5 of 1967 and Decree No. 45 of 1968 declared ultra vires and void.

Appearances

Chief F.R.A. Williams (K.A. Doherty (Miss) with him) For the Appelants

Dr. F.A. Ajayi, Attorney-General Western State;
Y.O. Adio, Principal State Counsel
and S.A. Onadele, State Counsel For the Respondents

IN THE SUPREME COURT OF NIGERIA ON FRIDAY, THE 24TH DAY OF APRIL, 1970 APPEAL NO: SC.58/69 Citation:(2000) 6 NWLR (Pt.660)228 Before Their Lordships ADEMOLA ADETOKUNBO, J.S.C. GEORGE BAPTIST AYODOLA COKER, J.S.C. IAN LEWIS, J.S.C. CHARLES OLUSOJI MADARIKAN, J.S.C. UDO UDOMA, J.S.C. BETWEEN 1. E.O. LAKANMI2. KIKELOMO OLA(by her guardian and next friend E.O. Lakanmi) APPELLANTS AND 1. THE ATTORNEY-GENERAL

Learned Scribbles

A Non-boring Guide for Preparing Your Next Final Written Address – Part 1

fredericknkobowo

August 16, 2022

If we were to rename the title for this piece, we would phrase the alternative or new title as a question. And that question would be; why do you go blank when asked to prepare a final address?

Yes, we will be answering this question in an almost not too boring but very detailed fashion.

Now let’s introduce our discussion;

To start this conversation, it is necessary to state that the jury is still out on what exactly writing is. That is – is writing a skill or a talent? The talent camp believe that writing is inborn. Put differently, people are able to write and write well as a matter of talent- and you either have this talent or you don’t. Case closed. The opposing ‘Camp skill’ believe that writing is a skill which means it can be learnt and improved upon.

We have since decamped to the second school of thought or group. It should therefore not surprise you when we argue that anyone who can talk, can write. Now, everyone may not be able to create beautiful prose or imagery like the John Grishams or Dan Browns but they can definitely express themselves in writing. That’s just our position for now. If the political tides change, we might decamp to a further and better school of thought.

But in this piece, we are not concerned with writing generally. We are rather concerned with that near spine-breaking duty of having to write a final address from start to finish. Even so, we think it is a skill and can be learned.

With that background laid, let’s dive in further.

Note: Sample of Final Written Addresses in Nigeria (in Part 3 of this article)

We just can’t skip mentioning that we’ve included two sample written addresses from actual matters at the end of this piece for your use. Care has been taken to eliminate a lot of the PIIs in the addresses but we are totally confident that they will be helpful.

Notable Quote

The judge does not possess the luxury of time for leisurely, detached meditation. You’d better sell the sizzle as soon as possible; the steak can wait. —Former Third Circuit Chief Judge Ruggero Aldisert

Selling the sizzle from the start should be every advocate’s goal. And Judge Aldisert’s food metaphor is apt: nothing in advocacy is more satisfying than reducing a dispute and its resolution to their essence, almost as if you were preparing a rich sauce.

Source: Point Made written by Ross Guberman

What is a Final Written Address?

Final Address has been defined as a document intended for the court which summarizes the relevant facts, the law and a proposed analysis of a case, on behalf of a litigant.[1] In in the case of Kalu vs. State (2017) LPELR-42101(SC), the Supreme Court of Nigeria, defined final address in these words: “final address means the last or ultimate speech or submission made to the Court in respect of a matter before it, before the delivery of Judgment.”

The long and short of it is that – a final address is really written speech intended to persuade the Court. We will return to this point much later in this piece.

How to Prepare a Final Written Address without Fainting

Most times, while carrying on the discuss in this piece, we will approach the issues from the eyes or angle of a Defense Counsel. At other times, we will wear the hat of a Claimant’s Counsel. Please note when we switch hats. Also, many of the suggestions made herein can be transposed and applied to Criminal trials but with due consideration of the peculiarities that accord criminal trials. And as mentioned earlier, sample written addresses are included at the end of the piece for your aid/use.

That said, the steps that would best help you prepare your next final address are listed and discussed in detail below;

Read the Record of Proceedings (the record):
This is really the first step. Let’s call it the genesis of the whole affair. You can even choose to call it your dating period with the final address even though it is yet to physically ‘manifest’ before you. And so, we repeat, read the record. Reading the record is important because the determination of the case or charge by the Judge will ultimately be guided by the content of the record of proceedings. Put differently, it is expected that the Judge’s decision will be based on the pleadings (or charge in criminal trials), evidence led (including the demeanor of the witnesses) and law applicable to facts of the case. This means, you really cannot go outside what has happened at trial to manufacture or invent what may favor your case or client. In essence, you are stuck with the record of proceedings and what happened at the trial, unless of course there is a de-novo trial. So? Read the record of proceedings.

More importantly, while reading the record of proceedings, we suggest you look out for these crucial points (We have taken the liberty to phrase them as questions as well. If other questions come to your mind, please don’t dismiss them):

The Adverse Party’s Story – What exactly is the Claimant’s (or Prosecution’s) story? What did he say and what did he not say: You will find the Claimant’s story in his pleadings (and the evidence he has adduced before the Court). In Criminal trials, you should look at the charge and the evidence adduced by the Prosecution or Defendant’s witnesses. Knowing exactly what the Claimant’s story is and comparing that story with the Defendant’s will help you determine some crucial points such as; what facts have been admitted in the pleadings (and so don’t require proof), what facts are in issue (and thus require proof), who bears the burden of proof of the facts in issue and was this burden discharged sufficiently or at all?

What the Adverse Party was able to prove – Of the many things the Claimant said, was he able to prove all the facts, any of the facts or the most crucial facts? : This is the next question that you should be subtly seeking an answer to while you read through the record. Because of this question, we are back to the issue of proof. Generally, it is usually easy to just talk. It is even far easier now that evidence in chief in most proceedings is typed and filed as a witness statement on oath. Merely talking and proving what has been said can be two different things and proof is where the headache sets in. This is why witnesses contradict themselves under cross examination. So, what facts have the Claimant or Prosecution been able to prove exactly? It is noteworthy that in criminal cases, the burden of proof lies on the Prosecution. In civil cases, the burden of establishing the case (the legal burden) lies with the Claimant while the burden of adducing evidence (the evidential burden) oscillates or moves between the Claimant and Defendant as the case progresses.
This issue of burden of proof is particularly important. But let’s draw your attention to a small detail. In civil matters, the general rule is that he who asserts must prove. But there is arguably an exception to this rule that is often neglected. The rule and the exception is this – the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof. In effect, where the Claimant asserts the negative of the issue, he may not bear the burden of proving it. We say ‘may not’ because he (the Claimant) might assert the negative of the issues and still bear the burden of proof – see these cases for further elucidation on the point – DASHE & ORS v. DURVEN & ORS (2019) LPELR-48887(CA), UGIAGBE v. ODEH & ANOR (2022) LPELR-57136(CA).
Apart from the issue of the burden of proof, we should not forget the issue of standard of proof. The Claimant may have adduced evidence in support of his claims (or story) since he bears the burden of proof but does the evidence satisfy or meet the standard required by the law? Just for purposes of refreshing memory, the standard of proof in civil cases is proof on the balance of probabilities. Meanwhile, the standard of proof required for criminal allegations made in a civil suit is proof beyond reasonable doubt. Similarly the standard of proof in Criminal cases is proof beyond reasonable doubt. We will return to this issue of burden and standard of proof when we speak to making the arguments in your address.

Your Ultimate To-Do List

For now, let’s zoom out a bit and tell you why we have gotten here or made the foregoing suggestions. With the crucial points that we have suggested that you consider so far while reading the record, the central line of action we are (and you should end up) driving at is this (you can call it your ‘ultimate to do list’) –

You would need to have a firm comprehension of what your case is vis a vis that of the adverse party. This firm comprehension would have to include what each side is to prove to succeed. We will talk more on this subsequently as well.
You would need to form an opinion as to who bears the burden of proof and whether or not the party has proved his case (i.e. discharged the burden of proof) to the tilt required by the law (i.e. to the standard of proof). The opinion you form on this should be based on the record.
You will need to justify your opinion in number 2 above from the record and
You will need to consider how you intend convincing the judge (in your written address) to agree with your opinion.

After executing your ultimate to do list, you will arrive at the core of your final address. This core will be what you will end up speaking to the Court on which is this – why should the Court grant my reliefs (as the Claimant) or why should the Court refuse the Claimant’s reliefs (as Defendant)? In a criminal trial, the central question would be – why should the court discharge and acquit the Defendant? (as the Defense) or why should the Court convict the Defendant? (as the Prosecution)

Now let’s pick up things from the last crucial point we suggested which is – What the adverse party was able to prove. In seeking to find a resolution to this point, a number of further and better questions will arise. Pardon our many questions but tag along. Now we get to asking them –

How did the Claimant attempt to prove his assertions?

This question can arguably be subsumed in the last question but we chose to separate it to avoid a bulky discuss under one subheading. Besides while answering the last question, only your opinion (as to whether or not you were convinced by the adverse party’s case) might have been a relevant answer. But in this part, you would have interrogate the evidence presented in support of the other party’s case more deeply. So, you will need to consider or ask some ‘deep questions’ such as;

Did the adverse party rely on any documents?
If he did, are the documents admissible in law?
If they are not, were they timely objected to? (Timely objections count a whole lot – please see the case of; Salau Okulade v Abolade Alade and Alimi v Obawole (1998) 6 NWLR (Pt 555) 591 at 607.)
Even if they were admitted, do they support his case?
Do they have the interpretation he is seeking to give them in the suit?
Also, even if they have been admitted, do the documents have any probative value? For example, in most instances, a newspaper publication that has been tendered and admitted in evidence might still not be sufficient to prove a party’s case. This is because newspaper reports have been consistently held to be hearsay by virtue of Section 37 of the Evidence Act; please see LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA).
Did the Claimant attempt proof by his mere words (ipse dixit) and was such sufficient in the circumstances of the case? As as an aside, on this point, please recall the dictum of Oputa JSC in DEBS & ORS v. CENICO (NIG) LTD (1986) LPELR-934(SC). The Learned Jurist said; “…ipse dixit literally means he himself said it. It is thus a bare assertion resting on the authority of an individual. There can be no question that a “mere ipse dixit” is admissible evidence but it is evidence resting on the assertion of the one who made it. Where there is need for further proof “a mere ipse dixit” may not be enough.” (Pp 12 – 12 Paras C – D)
If he attempted proof by his mere words, was he sufficiently shaken or discredited under cross examination?
Is there any reason for the Court to believe that he is not a witness of truth? That is was the witness convincing and believable? – See Bello v. FRN (2019) 2 NWLR (Pt. 1656) 193 @ 203 (D – E)
What material issues in dispute were not questioned or tested under cross examination by the adverse party? This is important and could form the basis of your submissions in your address. This is because the law is that the effect of failure to cross examine a witness on a vital issue is that the person against whom the evidence is given is deemed to have admitted the correctness of the evidence. – See SANI v. STATE (2020) LPELR-50436(CA)

Clearly the questions above will get you into some deep thoughts and analysis of the adverse party’s case. This is necessary to enable you see the case from all possible angles and appropriately put thoughts to paper in your address. It will also help you arrive at what thoughts to put down in your address.

It is important to mention here that on this question of how the Claimant sought to prove his assertions, the ball is usually more in the Claimant’s court than in the Defendant’s. What do we mean by that? The Law is clear that the Claimant is to succeed on the strength of his case and not on the weakness of the Defendant’s case unless…Unless there are portions of weaknesses in the Defendant’s case that supports the Claimant’s case. Also, if the Claimant has asserted the negative of the issues in dispute, it is arguable that the ball is not in his Court – UGIAGBE v. ODEH & ANOR (2022) LPELR-57136(CA).

What we are trying to make clear here is this, rather than bother more on how the Defendant attempted to prove his case, a Claimant would ideally need to be more concerned about how he (the Claimant) proved his case. This concern would need to reflect in the written address. Well, the Claimant can rely on the portions of the Defendant’s case that supports his. But it may be a defeatist strategy to focus only on the weaknesses in the Defendant’s case without any reference whatsoever to how his (the Claimant’s) case was successfully proved.

Similar position applies to a Prosecutor (many times). The central consideration therefore at the point of final address shouldn’t be how the Defendant proved that he didn’t commit the crime. That would be tasking the Defendant with the burden of proving his innocence which the law still frowns at. The central consideration for the Prosecution should be the crime alleged has been proved by credible and cogent evidence.

This brings us back again to the core of your final address which we mentioned earlier. The one that we said we have been and your address will ultimately have to drive towards which is – why should the Court grant my reliefs (as the Claimant) or why should the Court refuse the Claimant’s reliefs (as Defendant)? In a criminal trial, the central question would be – why should the court discharge and acquit the Defendant? (as the Defense) or why should the Court convict the Defendant? (as the Prosecution).

Reading the record with a fine comb to find out the answers to the questions we have suggested is just the first step in the process. We will discuss the next step and more in Part 2. This Part is already a twelve-minute read. Let’s not talk (or type) any further. But remember that everything we have stated here will come in handy in the long run of things.

Written by Nkobowo Frederick Nkobowo LLB

“Every writer I know has trouble writing.”

~ Joseph Heller

[1] Re-Adoption Of Final Written Addresses Does Not Re-Open Or Re-Activate The Time Within Which Judgement Is To Be Delivered. By O.G. Ogbom, Esq published on thenigerialawyer website. .

If we were to rename the title for this piece, we would phrase the alternative or new title as a question. And that question would be; why do you go blank when asked to prepare a final address? Yes, we will be answering this question in an almost not too boring but very detailed fashion. Now let’s introduce our discussion;

Everyday Law

How to Get a Divorce in Nigeria in 2022

fredericknkobowo

August 5, 2022

Gentlemen, welcome again. In this post, we will be dealing with how the divorce process works in Nigeria. At the end, you will know the steps you need to take if you want to get a divorce in Nigeria. We will also mention a few law firms that handle divorce cases in a later post – the list won’t be exhaustive by the way but it would be helpful.

Before we begin.

Have you watched any American movie where a couple got divorced? The process must have seemed so simple right? In one scene some white sheets of paper aka divorce papers appear. And it seems that by just signing the divorce papers, the marriage gets split in two and each spouse is free to go their separate ways (i.e. to their papa haus). You might think that that is how it also works in Nigeria – you just sign divorce papers and the marriage ends. We regret to inform you that it is not so.

We’d break down the divorce process in Nigeria summarily. Don’t forget this post doesn’t amount to legal advice. It is also not meant to replace legal advice. So, when you need to, please speak with a lawyer of your choice. So, let’s begin.

How soon can I get (or ask for) a divorce in Nigeria?

You can start the process for getting a divorce within a week of your having been married. Don’t be surprised please. And no, we don’t hope your marriage ends that quickly. It is just what the law currently provides.

However, if you want to get divorced in less than 2 years of the marriage, the procedure is not just that straight forward. This is because, generally, you would need the Court’s permission first to even begin the divorce process. To get that permission, the Court would have to be convinced that you will suffer ‘exceptional hardship if you are refused permission or that your spouse has displayed ‘exceptional depravity’ within the short period of the marriage. This general requirement for permission, does not always apply in some specific instances e.g, persistently refusing to consummate the marriage (that is have the first marital sex), committing adultery and the spouse finds this intolerable to live with, sodomy, bestiality etc. – Section 30(2) of the Matrimonial Causes Act.

If we were to say that with a little more legalese, we would quote parts of Section 30 of the Matrimonial Causes Act. Permit us to, we won’t quote any other weirdly lawyerly things after this one.

The Section states as follows

30(1) Subject to this Section, proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage except by leave of the Court.

(2) Nothing in this section shall apply to the institution of proceedings based on any of the matters specified in section 15(2)(a) or (b) or 16(1)(a) of this Act or to the institution of proceedings for a decree of dissolution of marriage by way of cross proceedings.”

The rule (which is called the two-year rule) is clearly targeted at preventing people from hopping in and out of marriages at a hair’s breadth. If you however have to file for a divorce after two years, you would not need this initial permission from the Court.

We should also tell you that getting an order of Court is in most cases really a walk in the park. That’s not to scare you. Or better still, when scared – talk to a lawyer.

But on a serious note, you hardly would file for a divorce and get the order of Court on that same day. This is because, the divorce process in Nigeria takes sometime especially as it is largely a litigation process (that is a process that involves suing in Court). This notwithstanding, there exists the option of divorce mediation which can help save costs and time.

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On what basis can I file for a divorce in Nigeria? (What are the grounds for divorce in Nigeria?)

There is only one legal reason (or ground) for which you can file for and be granted a divorce (or a dissolution of marriage) in Nigeria. The reason is this – the marriage has broken down irretrievably. Once you are able to show the Court that the marriage has broken down irretrievably, the Court will make a decree order nisi (a temporary decree). After three months, this decree of the Court becomes absolute or final and the marriage is ended. We will explain this decree order nisi and absolute subsequently.

But for now, back to the ground for asking for a divorce from the Court which is – that the marriage has broken down irretrievably.

To convince the Court of this irretrievable breakdown of the marriage that we’ve spoken about, you would be expected to prove that any one or more of these facts have happened in the marriage –

Your spouse has deliberately refused to have sex with you on a persistent basis (in other words your spouse has refused to consummate the marriage)
Your spouse has committed adultery and you find it intolerable to live with him or her
Your spouse has behaved in such a way that you cannot be reasonably expected to continue living with him or her. This can include various behaviors such as habitual drunkenness, committing rape etc.
Your spouse has abandoned you (i.e. deserted you) for a continuous period of 1 year immediately before your filing for divorce
You and your spouse have lived apart for a continued period of at least two years immediately before your filing for divorce and your spouse also wants the divorce (i.e. he or she does not oppose your petition for the divorce)
You and your spouse have lived apart for a continued period of at least three years immediately before your filing for divorce
Your spouse has for a period not less than one year failed to comply with an order of the court directing him or her to resume conjugal rights. Just to mention, Conjugal rights are the intimate rights of marriage including comfort, companionship, affection and sexual relations[1].
Your spouse has been absent from you for such a time and in circumstances that permit the reasonable presumption that he or she is dead.

On the issue of being abandoned or deserted by a spouse, it is necessary to mention that in some States, doing such a thing is a crime[2].

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What if I don’t want a divorce immediately, I just want to take a break from the marriage?

What if you don’t intend to outrightly walk out of the marriage? Maybe you feel that it would be best for you and your spouse to spend some time apart and maybe think things through. Don’t worry, the law has got you covered. In a situation like this, you can approach the Court and ask for a decree of judicial separation.

When the Court grants your request for judicial separation, you are in law relieved from the obligation of co-habiting with your spouse. But this does not affect the legal status of the marriage. In other words, the marriage is still intact – in the eyes of the law.

Also, we should mention that if things don’t work out after the judicial separation has been granted, you (or your spouse) can begin the actual divorce process.

If on the other hand, things get rosy again between you and your beloved and you both resume living together (i.e. co-habiting), you can apply to Court to discharge the decree of judicial separation.

How much does it cost to get a divorce in Nigeria?

The cost of getting a divorce in Nigeria is not fixed since most divorce cases in Nigeria are often contentious. Like we have said it is a litigation process, which can be won or lost. Therefore, lawyers often charge based on various matrix. Since all lawyers do not charge the same amount, the legal/professional fee will vary from one lawyer to another.

Give me some practical steps on how exactly I should start the divorce process?

Consult a Lawyer – this is the first step to it all even after reading this article. Why? you might ask. Consulting a lawyer would help tell if your complaint about what has happened in the marriage is a ground (i.e. enough reason in law) to approach the Court for a divorce. For example, your husband’s loud snoring at night and intermittent messing of the air (farting) when he sleeps may not be reason enough to go to Court and ask for a divorce. Speaking with a lawyer would also determine a host of other things like –
1. if from the nature of your marriage you need to take steps to get a divorce (or dissolution) of your customary marriage (if there was any).
2. Which of the petitions best suit the situation you are in – i.e. whether you need to file for a decree of nullity of marriage, judicial separation, restitution of conjugal rights or dissolution of marriage etc.
3. Whether the two-year rule applies to your situation
4. The forum convenience for filing the divorce papers

Preparation of the divorce papers for filing in Court: after speaking with the Lawyer, the divorce papers can then be prepared by the Lawyer for filing in Court. Some documents would be needed for the filing eg. Your marriage certificate. Now it is also important to mention that while speaking with the Lawyer, you might discover that an outright divorce may not be the best option for your situation and you might consider rolling up your sleeves to give the marriage another bout of respiratory support. By that we mean, you might try getting the love burning again like wild fire. So, the first step is very important.

After the filing of the papers, the Court process will begin. Like we have said before, getting a divorce in Nigeria is largely a litigation process and so it would take a while for the Court to give its judgment. Like we mentioned before, once you are able to show the Court that the marriage has broken down irretrievably, the Court will make a decree order nisi (a temporary decree). After three months, this decree of the Court becomes absolute or final and the marriage is ended in other words, you’ve divorced your spouse.

Written by Frederick Nkobowo ESQ

[1] https://www.law.cornell.edu/wex/conjugal_rights

[2] Sections 16, 47 and 48 of the Violence against persons prohibition Act 2015,

Learned Scribbles

Law Apprenticeship 101: How To Conduct Trial Or Hearing In A Nigerian Court

fredericknkobowo

August 2, 2022

This will likely be the elephant in the room for courtroom lawyers (aka litigation lawyers), especially those just starting out.

So, how does a trial lawyer prepare for trial?

Now the strategy you’ll adopt in your preparation will depend on whether you’re the going to conduct examination-in-chief or cross examination. I take that you’re conversant with the facts of your brief and already have a direction in which you want the court to perceive the case of your client. Your legal opinion on the case will come in handy (that’s if you took the pains to write one or are you wondering what that is).

Conducting Examination in Chief

Let’s delve right in. If your job is to conduct examination-in-chief, then I’ll say your task is a simple one. You’re required to lead the witness to adopt his witness statement on oath (deposition) and where it applies, tender documents. I suppose you know the questions to put to your witness to get him or her to adopt his/her written testimony as the evidence in the case, or do you need help with that? Alright, I’ll assist. The following are the questions to ask your witness to lead him/her to adopt his deposition:

Witness, tell the court your name, address and occupation;
Do you recall making a deposition on ….. date?
If you see the deposition, can you recognize it?
How do you intend to do that?
What do you want the court to do with the deposition?

With that the witness successfully adopts his/her written statement on oath as his/her evidence in the case.

If there are documents to be tendered through that witness, you’ll follow this line of questioning after the witness has adopted his deposition:

Witness, in paragraph …. Of the statement on oath, you had made reference to …. Document, is that correct?
If you see the document, can you recognize it? (At this point, the clerk of court will show the document to the witness)

When the witness recognizes the document, you seek the leave of the court to tender the document in evidence and allow the opposing counsel to object if need be for that. If there’s any objection, prepare to respond to the objection. You’ll have to check whether the document is an original, photocopy or certified true copies. I hope you know the effects of those when it comes to admissibility of documents. If you don’t, please research. Where the document sought to be tendered is a photocopy, ensure to lay proper foundation as to where the original is. If the document was electronically generated, ensure that you lay proper foundation to show compliance with Section 84 of the Evidence Act before tendering same. That could be achieved by tendering alongside that document a Statement of Compliance, or stating the facts of compliance with Section 84 in the written statement on oath.

Note that some courts may require you to tender all your documents in a bundle rather that doing that one by one. So what happens if you try to tender a document and the opposing Counsel raised an objection that you can’t really respond to on your feet. I’ll share my trick with you: apply to the court to provisionally admit the document and let parties address the issue in the final address. This will be a fair tackle to all as the court can always expunge (that’s remove from its record) any document that was admitted in evidence which ought not to be admitted, provided that this was the understanding at the trial.

Once you’re done with the tendering of all documents. Kindly indicate that to the court and close your examination-in-chief. The opposing Counsel can now cross examine.

Conducting Cross-Examination

As a lawyer about to descend on the witness through cross examination, I would want to believe that you’re also conversant with your case. This will aid you to question the witness to elicit answers that will build your case. Before you even begin to cross examine, have your ‘why’ for the cross-examination. Are you cross examining to impeach the credibility of that witness; or to cast doubts in the mind of the court about the case of the opposing party. Don’t forget the provision of the Evidence Act on the reasons for cross examination. They should form the critical part of your ‘why’ for the cross examination.

How about as a defence Counsel the document you intend to tender has already been tendered by the claimant? How do you communicate to the court in that situation that you intend to rely on the same document. The procedure is to lead your witness to identify that document and then indicate to the court that the document is already an exhibit before the court.

Wow! I’ve said too much for a short article. I pause here and hope to write to you soon on another interesting topic. See you soon.

Written by Queen Charles Ukpo ESQ

This will likely be the elephant in the room for courtroom lawyers (aka litigation lawyers), especially those just starting out. So, how does a trial lawyer prepare for trial? Now the strategy you’ll adopt in your preparation will depend on whether you’re the going to conduct examination-in-chief or cross examination. I take that you’re conversant with the facts of your

Everyday Law

Libel vs Slander: What’s the Difference?

fredericknkobowo

July 18, 2022

First, let’s start with some basic housekeeping –

What is Defamation?

Defamation has been defined as any unjustified expression (spoken or written) which destroys the reputation of a person in the eyes of right-thinking members of the society.

This definition is sufficient for our discussion in today’s piece but I should mention that a man who has no good reputation, there is nothing the law can protect for him.

To begin our discuss, you should know that the law protects every man’s right to his good name or reputation. At the same time the law gives every man the freedom to express himself. But both rights are not absolute (that is without any form of limitations).

This is where the law on defamation comes in. While the law is ideally aimed at not stopping free speech, no one should use free speech as an excuse to ruin the good reputation of another person without any basis whatsoever. And this is exactly what the law on defamation aims at curbing.

The law on defamation helps you protect your good name from the unfounded negative imputation of others so that your estimation is not reduced in the eyes of right-thinking members of the society[1].

Libel vs Slander: Do you know the Difference?

Libel is written or visual while slander is spoken or oral defamation.

More elaborately, Slander is an unjustifiable statement made in a non-permanent form such as by speech or gestures. If you believe that you have been slandered, you will be required have to prove that the harmful statement has caused some loss to you, which could be financial or moral.

Libel is an unjustifiable statement made in a permanent or written form such as books, newspapers, letters, paintings, photographs, film, radio or television broadcast. In a law suit for libel, you don’t have to prove that you suffered any loss.

With our definitions out of the way, I will mention a few take aways, you need to keep in mind when it comes to the law on defamation –

The defamatory words or expression must be based on untruth or falsity. This is because truth is a complete defence to defamation. So, if someone says something you consider could reduce your estimation before others, if it true, you have no remedy at law.

It is necessary to know that Defamation is also a crime – Section 373 of the Criminal Code; Section 24 of the Cybercrimes Act 2015, Sections 391 to 395 of the Penal Code for northern states and the FCT Abuja.

Not every vulgar or offensive word amounts to defamation. For example, uncouth words said during a heated argument or quarrel are generally not considered to amount to defamation.

Companies can also be defamed in Nigeria[2]. Therefore, a company can sue a blogger, individual or other entity it believes has unjustly disparaged its business, the management of its business or unjustly stated that the affairs of the company are conducted in a dishonest manner.

Where a person successfully sues another for defamation, he or she maybe awarded monetary compensation by the Court.

In a subsequent piece, we will revisit other aspects of this same aspect of the law that jealously guards your beautiful or hard-earned reputation. As usual, remember that nothing I have said here amounts to legal advice and when necessary, seek legal counsel from a lawyer of your choice.

Welcome to a new week.

Written By Frederick Nkobowo LLB, BL

[1] In its civil form, defamation seeks to protect for a man during his life-time the untainted smearing of his reputation and good name. It is therefore a wrongful act in the eyes of the law for a man to directly impress in the mind of another person a matter that is not only untrue but is likely in the ordinary and natural course of things to substantially injure the reputation of a third party. The successful institution of a suit for the tort of civil defamation may attract the award of damages in favour of the person wronged’.^–See https://www.mondaq.com/nigeria/libel-defamation/988198/the-importance-of-third-party-evidence-in-action-for-civil-libel-the-current-nigerian-jurisprudence#:~:text=The%20words%20must%20be%20defamatory%20or%20convey%20defamatory%20imputation%3B&text=The%20words%20must%20refer%20to%20the%20claimant%3B&text=It%20must%20be%20the%20defendant,to%20in%20the%20alleged%20libel.

[2] Zenith Plastics Industry Ltd. v. Samotech Limited (2007) LPELR-8260(CA) at Pp.37-38, Paras. F-B, Bassey Edem v Orpheo Nigeria Ltd (2003) 13 NWLR (Pt 838) 537

In this post, we’d briefly discuss what every Nigerian at some point contemplates especially when it seems their good name is being dragged in the mud. It is the law on defamation (Libel vs Slander). And we’d keep it simple and short. First, let’s start with some basic housekeeping – What is Defamation? Defamation has been defined as any unjustified

Learned Scribbles

LAW APPRENTICESHIP 101: A SHORT PRIMER ON RESPONDING TO COURT PROCESSES

fredericknkobowo

July 8, 2022

Dear Young Lawyer or not-so-young-lawyer, how are you doing today? Do you have processes to respond to and you don’t seem to know where to begin from? May I extend a hand of assistance? Oh! Thank you for accepting my offer. That’s great. I’m confident, it’s going to be a pleasant ride, so hop in on the train while I set the engine in motion.

Now, we begin.

When served with any court process, the first step is to ascertain the nature of the process. This will help in three ways:

It will guide your next line of action;
It will aid your draft of the appropriate process in response; and
It will aid your assessment of the processes for any preliminary issues that could terminate the matter even before it gets to hearing, assuming it’s a full-fledged suit.

I’ll give an example. Let’s say you’re served with a writ of summons and statement of claim. There’re a number of preliminary issues to be on the look- out for as you read through the processes. You may want to consider whether:

the writ was served within its lifespan as prescribed by the rules of court of the relevant jurisdiction;
the writ is properly endorsed for service outside jurisdiction (if that’s applicable);
the parties on the face of the process are juristic persons;
the action is brought within or out of the limitation period (if the cause of action is one to be instituted within a specific time frame;
the court in which the suit is instituted has jurisdiction or not;
there’re conditions precedent to be made (such as a pre-action notice if a government institution is sued) and whether such have been satisfied; and a number of other issues.

You should get the picture by now. Thereafter, you’ll consider whether to enter appearance for your client and whether such appearance will be unconditional, conditional or under protest. And then, you proceed to draft your response as befitting of the process served on you. Remember to make your general traverse at the commencement of the draft of your Statement of Defence. Do you intend to rely on electronically generated evidence? Ensure to satisfy the requirement of the Evidence Act by filing a Statement of Compliance with Section 84 of the Evidence Act. You could also state that in your Statement of Defence. Ensure in your draft to respond to every material fact raised by the other party and go ahead to state the case of your client.

How about if you’re served with a motion and an affidavit? In that case you’ll need to peruse the motion to ensure that it’s correctly signed by a lawyer and not in the name of a law firm. You’ll also want to check whether the content of the affidavit is not in contravention of Section 115 of the Evidence Act. Of course, you’ll be responding with a counter affidavit. So, what’ll be the content of the counter affidavit?

Your oppositions to the facts contained in the affidavit;
Facts that have not been put forward in the affidavit (I must warn that this could be tricky as there could be some danger in putting up these facts. You could put up those facts and give the opponent opportunity to explain more through a Further Affidavit. So you may need to really think through whether or not you want to state new facts in your counter affidavit).

I think this is enough for the now. We’ll continue on another episode where we’ll consider another interesting topic.

Written by Queen Ukpo ESQ

Learned Scribbles

Rejoinder: Strange Case; did the Court do justice in this Case?

fredericknkobowo

June 29, 2022

Some days back we told you the story of a strange criminal case. The case was not strange because someone (Miss A) had committed a crime. It was strange because of the verdict of the Magistrate. We ended by saying that that was one case where the Magistrate talked himself into saving a life and he may have done justice. In today’s piece, our professional colleague and friend who is a criminal Prosecutor disagrees. And his reasons are formidable. Do enjoy the read.

So, I just read the article published on your blog a few days ago. I’ll like to share my thoughts considering the facts as a criminal prosecutor

First and foremost, the alternative charge as suggested by the Magistrate in my opinion was incorrect. Miss A should have been charged for robbery and either attempted murder or assault occasioning harm. Never armed robbery.

It is my view that nothing she did from your narration of the facts amounted to armed robbery. This is because for it to be armed robbery, she should have gone to steal the phone or the money with a weapon. But from your narration what happened was that she stole money then bought phone. In my opinion, she therefore committed robbery in stealing the money.

Later on, she went to revenge and stabbed the complainant. This act would amount to attempted murder or assault occasioning harm and both offences are bailable in the high court.

Now on the issue of investigations and police force in our country, it’s well known that the police barely investigate crimes. Apart from that, we do not know what was contained in the file so we cannot say if this case was an exception to the usual police practice.

As much as I blame the police, most of my blame goes to the system. A system that does not make basic provisions for the simplest of things needed to investigate crime is deeply flawed. Things as basis as fuel for the police car to aid in visiting scenes of crimes is often unavailable. There are too many things wrong with the system.

Then the Magistrate. The Magistrates’ Court is a court of summary jurisdiction. Most times, because of the 48-hour constitutional rule, the police seek to charge suspects very quickly and get them off their hands.

Did the magistrate jump into the arena by rendering his opinion after perusing the case without listening to her? I don’t think so. Summary jurisdiction means everything is expedited. Besides Miss A had no lawyer there with her who could speak for her.

The Magistrate only relied on the facts that were before him. If there were opposing facts as presented by Miss A or her lawyer, do you still think the magistrate would have spoken as he did? I don’t think so.

Now on the issue of justice

The whole scenery of ordering Miss A to kneel down and apologize to the Complainant before releasing her because she was pregnant. What does that teach Miss A?

As much as we can say that a 19-year-old girl is still reasonably young and is confused about life, shouldn’t we also be endeavoring to teach our children (and young adults) a lesson that will stick forever with them? In this case, the lesson that every action has a corresponding consequence?

A person who was supposedly confused; stole from her madam, went to buy a phone, was of conscious mind to change the name so it could not be traced to her, when she was caught, later bought a weapon, and went back to stab the person who she assumed blew the whistle on her?

Is that a person that seems confused to you? Or is that the budding mindset of a potential criminal?

And she was let go with a simple tap on the knuckle because she was pregnant?

What has she been taught? That because of her perceived young age and pregnant status, she can get away with serious things? That actions don’t have consequences?

Our system is deeply flawed, yes. But I do not agree that justice was served in this case.

If she committed the robbery alone, I’ll understand forgiveness upon repayment of the money. But if were in the Magistrate’s shoes, I’ll still grant an order for community service or something similar to make her understand that there’s a punishment. But by basically sending her away free, I respectfully think that the magistrate has released a criminal into the society in a jurisdiction other than his own

Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance. I’d explain.

For the State, a criminal has been released back into society. From the narration, she had intention for both crimes and she actually committed them.

For the complainant, there was no restitution. You judged (or reached conclusions about) her (as I’m sure others around did) because she did not show any signs of injury does not mean she was not actually injured. If on the other hand, she had gotten something serious and he died, the story would have been different. Did she really want to forgive her but saw to the prosecution of the charge? But when she saw the direction of the Court’s discretion, she may have just bowed to peer pressure and forgave Miss A. So, what restitution did she really get? After all she had spent money at the police and for the little time she spent treating herself, a little bit of punishment could have gone a long way, not the forced forgiveness that seems to have played out.

For the accused, she was not taught the most important lesson that would guide her adult life. Imagine now, as she has gone free, she gets angry and says they made me kneel down in public, so she picks another weapon and goes after the Magistrate or the Complainant, what will the tale be? She is at a formative age and needs to be taught life’s lessons as quickly as possible

As my mother taught me, when a child commits a crime, beat the child with the left hand, then use the right to pull the child back to you. We do not realise the consequences of our actions, the far-reaching effects, until the chicken had come home to roost

Forgive my lengthy writing. But on this issue of justice, occasionally, it is nice to look at it from the point of the one who was living a simple life and his absolute right to peace was brutally violated by someone for very flimsy reasons.

Thank you and God bless.

Justice is 3-way street which is justice for the state, justice for the complainant and justice for the accused. To nobody was justice served in this instance…A Criminal Prosecutor reacts to our previous post.

Learned Scribbles

Strange Case – did the Court do justice in this Case?

fredericknkobowo

June 24, 2022

Clears throat and sprinkles pretend cough somewhere**

Dear reader, welcome to another episode of; “My Lord May I?” In this episode, I will narrate to you the happenings in an actual criminal matter and attempt to conclude that maybe justice was achieved in the circumstances. But after hearing the facts and my brief restatement of what transpired in court – would you agree that justice was indeed done?

Permit me to set the tone for the gist and cut to the meat of the gist so soon thereafter.

For toning purposes, I will confess that my gist today as you may suspect is not one of your usual or routine criminal charges/matters. Yes, you can call it premium gist.

And of course, it begins in a courtroom with a talking Magistrate. I’m not pulling your legs – this Magistrate actually talks. Of course, I know that all Magistrates talk but some are more ‘expressive’ than others. And our Magistrate in this story could win the Emmy’s for the most expressive jurist on the bench. No cap.

Caveat delivered in a whisper -I have used the word expressive to avoid a coinage that could hijack me to prison for contempt of Court. My own keyboard will not land me in prison – did I hear an amen? Thank you.

Now to the meat of our gist.

The unfolding of the ‘strange’ case

The meat of the gist begins on a Tuesday morning in the month of June. This particular Tuesday in Court dragged on just as any other day before our ‘defendant of interest’ whom you shall soon also meet, stepped in. Let us call her Miss ‘A’ where A would stand for ‘Accused lady’.

The criminal charge that brought Miss A to Court was an ‘overnight’.

Miss A was brought into the Courtroom with handcuffs and the Investigating Police Officer (IPO) motioned her to where she was to sit – not far from the prosecutor’s dangling table as usual. Few minutes in, the IPO handed over the file he walked into the Court with to the prosecutor and the duo whispered like reunited love birds that must not get caught. So soon thereafter, the file sneaked away from the Prosecutor’s table and boldly arrived by the Magistrate’s side who at this time was already adjourning the second case for the day.

After the adjournment, his worship issued the relevant order; “call the overnight”. As expected, the charge number was called and Miss A was led into the dock.

Now let’s get back to Miss A – our defendant of interest. Miss A was definitely not fat; her obvious bones confirmed that. She was fair skinned – or chocolate skinned if you may. Also, she bore an expression on her face that seemed to cloak all her emotions but one; her fear. She stood in the dock but before the charge was read and her plea taken, His Worship asked a question – “why was she not charged for armed robbery?”

Clearly the Court had just read the charge and unknown to us, its content was about to become the subject of an interesting conversation.

“Who drafted this charge?” his worship asked again.

“I did” the IPO replied standing up a couple of seconds before his pot belly.

“Why did you not charge her for armed robbery so that she would learn her lesson. If what I see here is what she did, then she should have been charged for armed robbery”

After those preliminary questions, the Court proceeded to deliver the mix of a lecture, an interrogation of the Miss A and a commentary on how long girls of these days have been reported to castrate men. During this period, eyes starred at Miss A – some in consternation, others in wonderment and others in subtle pity.

From the charge, it was alleged that Miss A stabbed the nominal complainant with a small knife. According to the Court, by the provisions of sections 401 and 402 of the criminal code law, this act properly falls within the ambit of the offence of armed robbery.

But the Court’s interrogation of Miss A and the IPO revealed some other facts. Miss A was a 19-year-old girl from one of Nigeria’s south eastern states who stopped schooling in JSS2 and came into the Magisterial district to make a living. The IPO’s narration was that Miss A worked in a store where she was learning a skill. After completing her training, she stole her Madam’s money and visited the nominal complainant’s shop to buy a new phone. She bought the phone with a different name – clearly to avoid being traced. However, nemesis caught up with her as her Madam’s store had CCTV cameras which captured her when she was stealing the monies. So, she was traced and the phone was recovered from her.

According to the IPO, the loss of her phone probably turned Miss A vengeful and she decided that the complainant was to be the object for that vengeance. How did she carry out this her vengeance (or vawluence if you may)? She bought a small knife, visited the nominal complainant’s shop and stabbed the nominal complainant. Now, criminal charges have been slammed on Miss A in a ‘wotor-wotor’ manner and behold, brethrens, she is in Court.

One more fact, Miss A was pregnant – this answer explained the slight bump in front of her small body. Her parents as well as the man who got her pregnant were back in the village.

With all these facts now in stated in open Court, His Worship clearly was faced with a dilemma. Should the Court proceed with the arraignment and grant Miss A bail? Or administratively direct that the file be sent to the DPP’s office so that the charge is re-drafted to read armed robbery and Miss A gets arraigned properly?

Either option would have consequences for both Miss A and her unborn child. With an arraignment and the commencement of the trial, Miss A already stands the risk of getting a conviction. That risk the Court had warned was particularly weighty as this Court stated that he does not know how to give short sentences (paraphrasing his words). The second option of having Miss A charged for armed robbery was even more risky for obvious reasons. One of which is – what if she is convicted? One knife and one angry or vengeful reaction would have ended her own life.

Its ‘stranger’ outcome

The Court in its wisdom chose an interesting resolution to the whole charge.

The Court suspended the arraignment, binded Miss A over to be of good behavior for three years failing which she would be imprisoned for 180 days with hard labour and after which the charge would be effectively resurrected.

With the ruling of the Court, Miss A was effectively free to go.

I should mention that before the ruling above was delivered, the Court addressed the nominal complainant and directed Miss A to go, kneel down and apologize to the nominal complainant. After the ruling, the court directed Miss A to go back to her State. [“That she should not be seen around here” – if I paraphrase as nearly as the Court’s exact words.]

**My narration of the proceedings is short but ‘as e take happen’ was not short at all. I have attempted to zoom in on the most important happenings as well. Boring you to sleep is not my intention today.

But has anything gone wrong?

What is your take on the whole proceedings as I have ‘gisted’ you above?

I will ‘air’ a few considerations in my mind before I arrive at a resolution.

Now we can agree that poor investigations happen often in this country. And usually, any IPO would properly restate the facts of his investigation to satisfy his conclusions, justify the charge and secure a conviction. So, there could have been more to the charge than met the judicial eyes in Court that day. In other words, the story ‘too straight’.

Also, in a clime like ours when the highest bidder can wield so much influence over institutions like the police, justice can actually elude the poor. And in this precarious situation, where an institution as vital as the Police (which should ideally aid the attainment of justice) has hopped into bed with victimization and corruption, the Court must be ever careful and should be able to probe into [or at most be skeptical] of police investigations.

Besides no one heard or knew what Miss A’s narration of the facts was. Did she do it at all? At least my nose seemed to be smelling some fish about the whole thing already – remember that the nominal complainant who was purportedly stabbed as stated in the charge sheet, was in court. But she did not limp when moving and she was not bandaged or even give off the look of one who was recently released from the clutches of a bandage. That was fishy to me. Also, did the CCTV footage actually show what the IPO said it captured?

But what if she really did it? What were the circumstances leading to that? Should the law just punish a young person? Though at 19 she’s already an adult but 19-year-olds, clearly are still usually trying to make sense of life. After all, a lot of things could have contributed to Miss A’s actions – ailing parents at home maybe, peer pressure, the frustrations that afflict many in the country, you can name them.

But she has an innocent child on the way and is not possible that she could be reformed rather than condemned and left to hang? [I know our correction/custodial centers would not do any reformation.] She may have acted out of frustration and in that case, should she not be made to undergo counselling?

Let’s also not forget that in Law she is presumed innocent. So, was the Magistrate’s sentence wrong in law? Did it arise from or was it based on a presumption of guilt? Ruling that she be of good behaviour for three years failing which she would be imprisoned for 180 days seems to mean preparing the punishment in advance of her next misdeed. Also, was his insistence that she apologizes (in the manner she did) not something of concern?

In my personal opinion and with due respect to the Court, I believe that accused persons no matter how vile should not have the impression that the Court’s mind has already summarily convicted them -without hearing their side of the story. This is especially important as the Court is not only supposed to be impartial – but is to be seen to act impartially (let’s call it- actual impartially and the impression of impartiality). In this case, while the Court had to say a number of times that he would be impartial, the impression of impartiality was already largely eroded with the vituperations cast on Miss A.

Apart from this particular case, there is also the question of – what really underlies criminal prosecution and our criminal justice system? I know that it is our general interest to ensure the safety of society by locking away the bad guys. But do we take it too far with the capital punishment? I say so because killing the convicted never brings back the deceased victim and, in that case, is it just the feeling of schadenfreude that has gotten us to insist on it?

And has justice been served?

That Tuesday, I walked away from the Court with the nagging impression that the justice of a matter may be outside the forms and strict letters of the law. In respect to Miss A’s charge, I might call it the strange case where the talking Magistrate talked himself into saving a life. I think that can be cloaked as justice.

What is your take?

Written by Frederick Nkobowo Esq

Clears throat and sprinkles pretend cough somewhere** Dear reader, welcome to another episode of; “My Lord May I?” In this episode, I will narrate to you the happenings in an actual criminal matter and attempt to conclude that maybe justice was achieved in the circumstances. But after hearing the facts and my brief restatement of what transpired in court –