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Law & Crime

Let’s Talk About It: Need To Exterminate The Rape Culture

LET’S TALK ABOUT IT!


Yea, it is high time we talked about this menace that has been in existence since time immemorial.
RAPE… What does it mean?
Rape according to Section 357 of the Criminal Code is an unlawful carnal knowledge of a woman or girl without her consent or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act, or in the case of a married woman by impersonating her husband. Section 358 prescribes life imprisonment with or without caning for anyone found guilty of rape.


In the middle of the surge on news on rape, I said to a friend, one of the advantages of social media is that it helps to publicize this heinous crimes that have come to stay in our society. I remarked that there were several other cases going on and will continue until we do something, it is sad that most of some of these cases are been swept under the carpet by the parents, guardian, neighbors, the authorities,etc. More than the ones we see on social media, there are much more cases going on that we will never know of and until we are intentional about ending rape, it may forever haunt our society.
Would you be surprised if I say by my estimation, about 75-80% of females have either been raped, almost raped, molested, assaulted or harassed at once or several times. That most victims decide to keep a secret or only share among fellow females does not mean that it does not happen. Many more females and sadly males too are going to experience any of this dignity depriving crimes until we do something about it.


For the teenager that was raped severally by her uncle and the son till she died from complications.
For the 4 years old that was defiled by a security personnel.
For the 22 years old that was raped and brutally murdered in a church.
For the 18 years old raped and killed within her parents’ compound.
For the 12 years old that was raped by different men.
For the 18 years old that was raped by 5 men
For the 2 years old raped to death.
For the 14 years old that was raped severally and threatened by a neighbor.
For the other rape victims unknown to the world or the social media.
It is a lifetime of torture, distrust, shame, pain, hurt, brokenness, disappointed and anger. To rape a person is to kill that person psychologically and emotionally, the trauma is unimaginable.
RAPE CULTURE


A culture, environment or society where rape is common and in which social attitudes or practices work to trivialize sexual violence, make rape seem normal or shift responsibility to from the rapist to rape victims.
This rape culture is one major reason rape is rampant in our society, don’t be ignorant, rape has always been common event in our society, just that most go unreported due to the rape culture. Some of these rape culture are:

  1. That is her, the girl that was raped. The victim is usually tagged and stigmatized.
  2. What is she looking for at that time of the night.?
  3. Why did she go to his house, can’t she stay in her own house?
  4. She must have dressed half naked/ seductively, she deserved rape.
  5. She is a known prostitute, she deserves to be raped.
  6. Why didn’t she shout or fight, she must have enjoyed it.
  7. Why are you just saying it now after so many years, I don’t believe your story.
  8. You too, why are you so fine and curvy/sexy, “body no be wood na” and man must be man”.
  9. You should have allowed the rape instead of struggling.
    ….and the victim shaming and blaming goes on…
    Let’s quit pretending, our women and girls are not safe, we walk and move around in fear at the sight of a male figure especially when they are in groups. I still remember running most times in the night whenever I was sent on errand as a child and teenager, the fear is still there. I remember so many harassment from “brothers and uncles” in the neighborhood and compound back then, or what do you call a grown man talking trash to a child of 12/13 years and trying to touch in sensitive parts, asking to take a child out to have fun with her??
    What is the root of this rape culture? how did we get here?
    It’s time we agree to unlearn some of the bad things we learnt and condoned while growing up which have contributed to the rape culture.
    Please Note Some of them:
  10. Only the female child need “iron hand” so they will not “spoil” and bring shame upon the family, the male child is easy to train and so needs little or no “iron hand”.
  11. The topic of sex is forbidden in the home, sex education is a taboo in the home, never discussed and parents expect kids to learn on their own.
  12. The average male folk mostly think the thing there is to a female is the body and ultimately sex.
  13. Most male folks see nothing wrong in fantasizing over a lady’s body and ‘tapping current’ i.e touching sensitive parts of a female’s body intentionally.
  14. Some male folks believe women saying ‘No’ means she is forming and to show you are a man, you pester her or even force her.
  15. The believe that when a lady visits you in your home, she wants sex.
  16. The believe that a lady who dressed in a way “half-naked” or seductive to you wants sex or deserves to be raped.
  17. The believe that once a woman has “chop” your money, you must have sex with her even if it is rape or else you’ll be tagged a “maga”.
  18. The wrong mentality of bragging about “conquering” a woman to fellow males.
  19. The believe that once she agrees to date you, her body belongs to you.
  20. The practice of catcalling a lady on the street and cussing at her if she rejects such harassment, they say “you no even fine sef” “olosho”…
  21. Sex is natural, sexual urge must be satisfied, “if I don’t do it, I will fall sick or die”.
    ..and this believe and practice is passed from man to man and generations to generations..
    WHAT NOW??
    These are some of my suggestions:
  22. Learn that a child not trained will eventually destroy the one trained, who spoils the female child? The male right? Then we should teach the male child not to spoil the girl child. Teach the boy morals and respect for others and their bodies and choices. If you emphasize female virginity make sure to put emphasis on male virginity too.
  23. Start talking about body parts and privacy to children at an early age, teach them boundaries when playing and respect for others. Let’s have sex education at home as soon as they can comprehend the topic and deepen the conversation as they mature. Let them know about sexual violations and abuse, let them be better informed to make better decisions.
  24. Let’s talk about all there is to know about both gender, teach the male that there is more to a woman than her body/sex.
  25. Know that when you begin to lust after a woman’s body, you send some signal to your brain and the sexual organ picks it up which can lead to desperation to have that woman or any woman at all. Stop touching/tapping a woman’s body without consent. It is not acceptable to tap a woman’s bum, caressing her hand, face, hair on the street or anywhere else, it doesn’t make you a real man, it makes you a snatcher of human dignity.
  26. If a woman wants something, she knows, if she says no leave her alone, if she wants you let her say it. If she says you’re not man enough because you respected her no, it’s her loss, your manhood is not defined by violence or being forceful on a lady. Most important is you have your integrity intact.
  27. A lady coming to your home does not mean she wants sex, she may just want to hangout and talk. She is in your house is not license to rape her, if she wants sex let her say so, else control yourself not to land in jail. If you lack self control, meet with ladies in public until you have self control.
  28. That a woman dress in a way unacceptable to your moral standard does not mean she is soliciting to be raped. Even a sex worker whose work is paid sex standing on the street”half-naked” has the right to say no, if she doesn’t want sex with you. Look at it like this, when you see a mall, the goods are kept in open shelf for people to see, do you then break into the mall and pack their goods and run away? I bet No, because that is a crime of robbery. Same here, stop giving lame excuses to blame the victims. Just an analogy though. If you’re enticed by a lady’s dressing and she says no to you, then waka or better still lower your gaze and stop sexualizing a lady’s dressing.
  29. As long as she is not a worker who is into sex for money, that you gave her money or helped her is not a license to have sex with her. If she consents, fine, if not, leave her alone. You were not threatened or held to ransom for the money, if you can’t give money or help without expecting sex in return, then better you don’t help or give money out.
  30. “Conquering” a woman does not prove your manhood, stop molesting women and bragging to your friends. Whatever is the meaning of conquering a woman self, is she a colony, are you in a war? Give yourselves brain.
  31. No man owns another person’s body irrespective of the relationship between you, claiming ownership over another person’s body is pure slavery.
  32. Stop catcalling ladies, stop cussing at them when they ignore/reject you. You are harassing them publicly and violating their right to dignity. This is not right and should not and never be a guy thing.
  33. Sex is a natural thing, yes, sexual urge must be satisfied, no. Sometimes you have to control it, if there is no willing partner. And no, you will not fall sick or die if you don’t have sex.
    WHAT MORE??
    I will suggest the following:
    ✓ A review of the Criminal laws as it borders on rape and other sexual offences to include modern day realities, filling the loopholes, time lapse issue, properly defined consent age, marital rape?, inclusion of rape of an adult male after proper analysis of it’s possibility, etc..
    ✓ Strict and proper investigation by the enforcement agents.
    ✓ Rapid trial of the cases.
    ✓ Establishment of separate Courts to handle this cases speedily in all divisions in all states.
    ✓ Rape should be a capital offence with strict punishment.
    ✓ Punishment should be castration and life imprisonment.
    ✓ False rape accusations should be thoroughly investigated and punished.
    It is no longer right to turn the other way or mind our business on the issue of rape, it is now our collective responsibility to right this wrong and bring justice to all victims.

BLESSING O. JOSEPH ESQ.

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News & Events Uncategorized

The Effect Of The Pandemic On The Legal Sector In Nigeria With Kayode Ajulo Esq.

The Elite Lawyers Association in their exclusive interview with the distinguished legal practitioner of class and style sought to know if the pandemic that have ravaged the legal sector had any positives and if there are panacea thereof in the midst of its negative impacts. The legal icon had this to say:

The COVID-19 pandemic is becoming one of the most serious threats to global markets and international trade seen in recent times. Border closures and travel restrictions instituted by different countries to restrain the spread of the virus, have adversely affected transportation and other supply side businesses and service providers. Uncertainty about the disease has plagued stocks, bonds and futures markets with negative implications. Financial markets have suffered losses and global economic forecasts are being reassessed and downgraded to account for the loss in trade and income to businesses and governments resulting from the pandemic

He called the NBA to kindly find means to ease the burden placed on young lawyers by the pandemic and other related events. He however, appreciated the Elite Lawyers Association for their desire to make impacts in the legal profession which will go a long way to ensure law reform.

Categories
News & Events

The Effects Of The Global Pandemic On The Judicial Sector With J.S Okutepa SAN

Due to the global pandemic that is ravaging every sector in the world, the Elite Lawyers Association with the zeal to bring answers to young lawyers who are greatly affected and to assist the judicial sector profer solutions to its effects; sort and earned an interview section with the most distinguished learned silk J.S Okutepa SAN of Okutepa & Co.

The following were derived from his assertions:

When asked about his views on the welfare of young lawyers, he had this to say:

‘The NBA has set up a welfare committee on Covid-19 where senior lawyers, such as myself, are being called upon to make donations as palliatives for young lawyers. I have my reservations for it….The profession of law is so honorable that I consider it demeaning for young lawyers to be given palliatives as if they are beggars. The nobility of this profession does not allow me to think along that line. I rather want to think along the line that to solve the problems of young lawyers, the NBA, as a professional Association must think beyond giving money as a sign of palliative. Because it’s tantamount to giving fish to a man rather than teaching the man how to fish for himself. So I think my attitude is that we have squandered so many opportunities of creating jobs for young Lawyers.’

He further stated thus;

‘What stops the Attorney general of the various ministries to say if we give out briefs to mr A B, C, and D of N10,000,000 (ten million naira), for instance, the lawyers in the ministry of justice must bring out N3,000,000 (three million naira) from there to give to the young lawyers in the ministry of justice who are assisting you in addition to their salaries, so they can also have money in their pockets?’

‘What stops the Nigerian Bar Association to invest part of our practicing fees in investment-driven opportunities businesses that can be exclusively reserved for lawyers as employment? What stops the Nigerian Bar Association?

The rest of the interesting interview with great insights is revealed in the video clip above.

Categories
Law & Crime

A Review Of the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN.

I read with much pleasure, my learned friend, Uche Amulu’s commentary and the analysis contained therein, of the recent judgment of the Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji Uzor Kalu v. FRN (hereafter “Orji Kalu”) . For purposes of brevity, I will adopt the facts of the case and his summary of the judgment in Orji Kalu as he laid them out. I may however add or proffer an alternative summary, which Mr. Amulu may have not included (for good reasons I believe). I have also read the said Judgment of the SCoN.
The relevant laws to this analysis are mainly (1) the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) which hereafter shall be referenced simply as “the constitution” and (2) the Administration of Criminal Justice Act 2015 (hereafter ACJA).
My review of the SCoN’s judgment is conducted from two main legal perspectives or methods, viz the black- letter or doctrinal method and the socio-legal methods. In acknowledgement of the divergent definitions that these two terms have lent themselves over the years, let me clarify what I mean in reference to the black-letter or doctrinal and the socio-legal methods.
For the purposes of this review, my use of the term “black-letter” method of analysis refers to an analysis or review of the judgment from a strictly legal perspective and on a correctness (as opposed to reasonableness standard). This is a method of analysis that will simply examine the SCoN’s judgment in the light of the “letter-of-the-law”. For that reason, I will simply seek to determine what the SCoN said the law is (viz-a-vis the relevant sections/provisions of the constitution and ACJA) and offer my opinion on whether or not they are correct in that their interpretation the those laws.
On the socio-legal analysis, I will seek to analyse the SCoN’s judgment from a reasonableness standard, taking into account, its impacts to and consequences for such things as:
i. The constitution
ii. Cost of Litigation and Access to Justice
iii. Integrity and Administration of the Criminal Justice system particularly


AND


iv. The integrity and administration of the overall litigation/court systems in general.
In conclusion, I offer some recommendations on how remedy the effects or consequences of the SCoN’s judgment.

THE BLACK-LETTER/CORRECTNESS ANALYSIS
It appears to me, that the central issue on the appeal to the Supreme Court was whether or not the trial Judge, M.B. Idris J (as he then was and now JCA) was a Judge of the Federal High court within the meaning of sections 249 (2) (b), 250, and 253 of the constitution, when he rendered judgment and convicted the defendants in the Orji Kalu case. Framed differently, the appeal was a direct challenge to the validity and constitutionality of section 396 (7) of the ACJA 2015. Again, Mr. Amulu has laid out these provisions in his initial commentary, and I adopt them as laid out for this rejoinder. However, just to put things into perspective, the said section 396(7) of the ACJA gives or (now more accurately) purported to give “a judge of the High Court, who has been elevated to the Court of Appeal . . .dispensation to continue to sit as a high court judge” so as to conclude “any partly-heard criminal matter pending before him at the time of his elevation”.
The undisputed fact in this case was that Idris J, had already subscribed to the oath of office as a Justice of the Court of Appeal at the time of rendering the judgment. Secondly, he received a “fiat” pursuant (purportedly) to the said section 396(7) of the ACJA, from the President of the court of Appeal (PCA) to go back and conclude the said Orji Kalu trial. I supplied the emphasis above for a reason to be addressed shortly.


I have read arguments that the defendants (or at least one of them) in the Orji Kalu case actually sought the dispensation of the PCA upon which Justice Idris returned to conclude the trial and that therefore it was ‘unconscionable” for them to benefit from the irregularity that they had themselves authored. In my opinion, this is of no moment because it is settled law from a long line of decided cases that neither the court nor parties can confer jurisdiction on a court that lacks one, whether by express agreement or by implied conducts.


The Supreme Court determined that Idris (JCA) ”having been elevated to the Court of Appeal, has ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court” to further adjudicate on the Orji Kalu trial and render judgment on it. Eko (JSC), delivering the unanimous Judgment, further held that section 396(7) of the ACJA was inconsistent with section 290(1) of the 1999 constitution. Applying section 1(3) of the constitution, he declared the said section 396(7) of ACJA void to the extent of its inconsistency.
I do not quite agree with a finding of inconsistency with the constitution, against section 396(7) of ACJA based on section 290(1) of the constitution. However and in any case, saddled with the same task, and on strict application of the black-letter method, I would have arrived at the same conclusion but on the basis of section 253 of the constitution, as opposed to section 290(1) of it. Section 253 of the constitution which established the jurisdiction by of the Federal High Court, states that the court shall be deemed to have been properly constituted “if it consisted of at least one judge of that court”. It follows therefore, again speaking strictly from a black-letter perspective, that at the time of rendering the judgement, M.B. Idris is a not a judge of the Federal High Court. And where once the SCoN has found section 396(7) to be inconsistent with the constitution, his status as a Justice of the Court of Appeal at the time of the judgment renders the said judgment to bereft of jurisdiction.
The question that needs to be considered, but perhaps not on a black-letter consideration of the judgment, is whether two things can be said to in conflict or inconsistent with each other if they are complimentary to each other. This line of thought will be considered in the socio-legal analysis of the judgment.
On a strict application of the principles of jurisdiction as laid down in the seminal case of Madukolu v Nkemdilim, the court in the Orji Kalu case, because it was not “properly constituted” is therefore bereft of jurisdiction , and the effect/consequence of any judgment delivered by a court without jurisdiction is, has always been and may well continue to be, a nullity .


While I may agree with Mr. Amulu in his analysis that “that that section 396(7) of the ACJA [was]enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction”, I do not however believe that they effectively achieved that aim. Firstly, the power to grant dispensation to conclude a trial at the Federal High Court was vested in the President of the Court of Appeal, thereby negating the effects of section 19 (3) & (4) of the Federal High Court which vested the power of administration and assignment of cases in the Chief Judge of the Federal High Court. That, in and of itself alone, is problematic.
On the basis of the foregoing analysis, and having read the full transcript of the Supreme Court’s reason for its decision, this is surely not one of those judgments that you wonder what law exactly is the law applying or how they came to their conclusion. The Supreme Court, having approached its interpretation of the relevant sections of the constitution literally and rigidly (I may add), was entitled to the conclusion that it reached and can therefore, in my opinion, not be faulted on a strict black-letter based analysis of the extant laws.


THE SOCIO-LEGAL/REASONABLENESS ANALYSIS
As we all know, the effects and consequences of laws or judgments go beyond the immediate parties for who they were made/delivered. So much as there may be differing views on what exactly is the grand purpose of law, I don’t think that there may be any assessment or analysis of the purpose of courts that may not, one way or another, include its duty to do justice. Granted that there may not be a generally accepted/acceptable definition of justice, what is not justice is however not as controversial.
A court of law, and more so the Supreme Court that sets the tone of the law for other courts to follow, must always be guided by this primary purpose, as with the rules of law, in approaching its decisions. With respect, I feel like the SCoN, by its decision in the Orji Kalu case, sacrificed substantial justice on the alter of doctrinal affirmation or discipline. I say that because, this case, no matter the way you look at it, turns on constitutional interpretation, on a simple phrase on that constitution (i. e. “a judge of that court” in section 253) and finally turns on a balancing exercise between the competing rights/factors in this case.
As Mr. Amulu rightly noted, the constitution, though clearly states that the Federal High Court is only properly constituted when it has at least “. . . one judge of that court”: who or what ”. . . one judge of that court” means/refers to had not received any prior Judicial interpretation. This was an opportunity for the SCoN to render that interpretation, bearing in mind, the aims, purpose and objectives of the Administration of Criminal Justice Act 2015, as well as other equally poignant factors that will be outlined shortly.


In my opinion, a reasonable approach to interpreting or defining who/what “one judge of that court” means is not the literal rule that the SCoN seems to have adopted here. In the English seminal case of Dupont Steel v Sirs which seems to be the foundational precedent for statutory interpretation for most common law countries, Lord Justice Diplock had this to say about the interpretational role of the courts :
“When Parliament legislates to remedy . . . a defect or a lacuna in the existing law . . . the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”.
A corresponding Nigerian authority in this regard is the case of Rabiu v State where the SCoN had this to say specifically about constitutional interpretation :
“In interpretation of the Constitution, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution Where the question is whether the constitution has used an expression in the wider or narrow sense, the court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless . . . narrower the interpretation would best carry out the object and purpose of the constitution”
Also, in AG Lagos State v. Eko Hotels Ltd & Anor, the SCoN restated this position when it held that :
“ . . . where the meaning [of the Constitution] is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention”.
From the purpose of ACJA 2015, it was clear that it set out to cure some defects/mischiefs in the administration of criminal justice. Its purpose was said to promote :
“efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim”.
Applying these authorities, I will submit that the phrase “one judge of that court” does not immediately lend itself to a clear and unambiguous meaning, especially when viewed in the light of said section 396(7) of ACJA, which until this judgment, was a valid law. It was therefore wrong (in the reasonableness standard) to have approached the interpretation from a literal perspective. It is my opinion, that the SCoN, should have approached their interpretation of both section 290(1) and 253 of the constitution in such a manner that would not defeat the central purpose of ACJA or metastasise the mischief or defect (viz unreasonably long periods of trial) that the said section had intended to cure/remedy. By its interpretation, I argue that the Supreme Court has rather than “save” the constitution (as many commentators were quick to assert), further endangered the constitution and the overall administration of Justice in the following ways:
Hampers the Actualization Fair Trial Within Reasonable Time and other Fundamental Rights
Section 37 of the constitution guarantees “fair hearing within a reasonable time” in the “determination of . . . civil rights and obligations” of all citizens. This is a right that is more on paper than attainable for most Nigerians encountering the criminal justice system. With no pun intended, Eko (JSC), had conducted a review of the instant section 396 of ACJA, particularly its subsection 2, and acknowledged that that section, as well as section 395(2) of ACJA and section 36(1) of the Constitution are “all about . . . speedy trial” .


It will sadly be the case, following this judgment, that criminal trials will continue to take longer (double the time) whenever the instance such as was the case in Orji Kalu arises where the trial Judge is elevated to the Court of Appeal. The aspect of this that undermines the fairness of such trial is in the case of a less wealthy defendant (or complainant). Assuming that the defendants in this case were not a former Governor with the financial wherewithal to prosecute his defence to whatever length required. The implication for a less wealthy defendant will be a doubling in expenditure, which could hamper the quality of representation wherein such defendant is no longer able to afford the services of a good/senior lawyer and is then forced to higher probably a new wig. On the reverse, the opponent is the Federal (or State) government, with ‘unlimited’ resources.
When considered further in the light of the fact that the prosecution viz-a-viz the government (and not the defendant) would have caused the elevation of the Judge, it becomes even more unconscionable and unfair that this would be the legal principle. Situate this within the context of malicious politically-motivated prosecutions that we all know, go on in Nigeria, then you will understand why this decision could very easily become a tool for oppression and persecution more than anything else; whereby defendants are arraigned on trumped-up charges, and on the eve of their acquittal, the trial charge is elevated to the court of Appeal so as to start their ordeal afresh.


The impact of this on personal liberty is best appreciated when liberty is viewed beyond the scope of physical liberty . Anyone who has been subject or part of litigation (whether criminal or civil) will understand the emotional and mental toll it takes on the participants. Recall that sometimes, the defendants may be on onerous bail conditions that places severe restrictions to a lot of things in their lives, including movement (travelling abroad is the most common). The Supreme Court itself agreed this much when it held that seizure of international passport of a citizen amounted to an incursion into that citizen’s freedom of movement in Director of SSS v Olisa Agbakoba .
On the basis of these analysis, I will adopt the words of the Supreme Court itself in Rabiu (supra) to submit that by this Judgment in Orji Kalu, it has defeated “the principles of government enshrined in the constitution” a la fair trial and within a reasonable time, liberty and freedom of movement.
Increases the Cost of Conducting Litigation and thereby Undermines Access to Justice
As I noted earlier, the implications of this judgment go beyond the immediate defendants and also beyond the prism of criminal Law system. In a country like ours where the justice system and the judiciary itself are known to be susceptible to influence or manipulations, elevation of trial judges could be the next tactics for obstructing justice and frustrating poorer litigants from accessing the individual justices in their case.
Imagine an influential defendant or plaintiff (including government or a government agency) who knows that his or her case is weak (whether criminal or civil), and just influences the elevation of the trial judge on the eve of judgment. Think about the proverbial case of the poor widow and the rich/influential man; where the poor widow strives with the last of her possession to try to reclaim a piece of land from this bullyish rich/influential man, and after about 5 years of trial, whether by the making of the rich man or not, the Judge is elevated to the court of appeal on the eve of rendering judgment. By this time, the widow is more probable than not to have run out of resources and may not be able to finance a whole new trial as a result of this.
On the basis of this Orji Kalu judgment, that widow, as with any other litigant that finds themselves in such similar situation, has had their access to justice practically undermined at best, if not totally denied.
Undermines the Integrity of Criminal Trials and Its Investigations
Cases such as the Orji Kalu case is one which perhaps the evidence is not time sensitive. However, there are trials and criminal investigations that its evidence and the underlying investigation may be best reliable in shorter periods of time (rape may be one of them). With this judgment and the consequence thereof a la trial de novo, this legal principle may have only contributed to denying the victims justice for no error or wrongdoing of their own.


Undermines the Integrity of Litigations Generally
One scenario by which this point can be illustrated is with our Election Petition (EP) cases. The constitution as we know, stipulates that the whole trial in EP cases must be concluded within 180 days. I would not think it is beyond what a desperate government in power could to to frustrate any given election petition matter in which it fears might not be favourable to it, by causing the elevation of a member of such tribunal on the eve of concluding the matter so as to begin a new hearing, by which the 180 days may either completely elapse, or no longer be enough to take the matter up till the last appellate court for review.
On the basis of these socio-legal considerations, I will submit that the decision of the Supreme Court in the Orji Kalu case is impeachable on a reasonableness standard.

THE WAY FORWARD
It still remains the duty and obligation of the legislature to make/amend laws. Truth remains that if the legislature had done its duty thoroughly and properly with respect to the vexatious section 396(7) of ACJA, the Supreme Court will have no issue giving effect to it.
Having said that, I am of the strong view that the durable and sustainable cure to this defect in the ACJA is a constitutional amendment, that would:


a. permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice


OR


b. Alternatively, ensures that High Court Judges elevated to the Court of Appeal may not subscribe to the oath of office as Justices of the court of Appeal, to sustain their jurisdiction as High Court Judges, until such a time that they have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date they actually subscribed to the oath, which could be a year later due to delays in concluding cases at the High Court.
I am of the view that achieving a speedier dispensation or administration of our justice system is fundamental to sustaining both its integrity and functionality, as well as restoring the diminished confidence of the public in the system. I am tempted to say that had the Supreme Court ever cared about these germane factors, it is difficult to see how they could come up with their interpretation and consequential judgment in the Orji Kalu case. As such, the necessary amendments to remedy the pitfalls of the Orji Kalu judgment ought to be done and very quickly too.
Ikenna Aniekwe writes from Toronto, Canada and apologises in advance to anyone for finds the length of this review unusually long.

Profile of the Writer
Ikenna Aniekwe holds a Bachelor of Engineering degree (Elect/Elect – Power Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer cum Laude) from the University of the West of England, Bristol UK, BL from the Nigerian Law School and most recently, an LLM in International Business and Human Rights Law (research) from the prestigious Osgoode Hall Law School of York University, Toronto Canada. He is currently undergoing the Law Licensing processes and hopes to be called to the Canadian Bar in 2021.

Ikenna is also a Senior Associate at NICCOM LLP (www.niccomllp.com) where he brings his wide breadth of experience into bear in advising on the firm’s most remarkable works.


Prior to his sojourn into Law, Ikenna was (and still retains a substantial interest as) a renowned filmmaker with skills in screenwriting, Directing and Producing with over 50 Nollywood Film titles to his credit.
He also has a hobby and a side career in football, with a certification and license from the Footballer Association of England and Wales in Adult football coaching. He is also a member of the Nigerian Referees Association for over a decade, a registered member of the Referees Association of England and Wales (Non-active) and of the Canadian Soccer Referees Association.


Ikenna is an avid researcher of law with a broad interest in International Law and Human Rights, particularly the effects of International Business norms and practices on Human Rights in the Global South.

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The Big Question Winning Essay

RAHILA DAUDA Esq.

The practice of law is as ancient as the world itself, it keeps evolving and transforming, a lawyer will do great harm for himself or herself if he or she refuses to embrace the new normal of practicing of law.
It is very important that we make progress even with the way things are currently, for me I strongly believe our justice system should make use of technology in it’s Administration of Justice. There a lot of laws that need to be reformed in order to ensure an effective justice delivery, unfortunately for our judicial system is Nigeria, our laws have been enacted in such a way that technology has been giving little or no consideration, this is because most of our laws don’t get to be reviewed and reformed as it should be, The Quarantine Act of 1926 for example which we still use in this time and century should have been revisited since before now. Other acts such as the Married Women Property Act of 1822 for example should be reviewed and reformed in line with our peculiarities.
Young lawyers especially should leverage on the use of technology in their legal practice, they should not continue to rely on the usual way of doing law, new emerging areas of law like Fintech, Media law, Intellectual property should be considered, becoming experts in such field is very advisable.

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The Big Question Winning Essay

OKEKE IFUNANYA JEMILA Esq.

No doubt the world is at a biological war fare with the corona virus, a deadly virus that has drastically changed everything, we have no choice than to adapt to a whole new way of life, we are constantly unlearning and re-learning ways to survive this pandemic now.

Every profession known to mankind including the legal profession has been severely affected. The legal profession is unquestionably a very noble one, the society admires anyone who has taken to this prestigious profession. Sadly, the outward presentation of this profession in Nigeria has deafen and rendered non-existant the inward challenges faced by many in this noble profession especially the young lawyers, who get called to the Nigerian Bar Association and dive into the profession with so much enthusiasm and great expectation, only for their hopes to be dashed with the harsh realities of “ you should be privileged to be gaining experiences from us”,  with little or no financial motivation and made to comb the courts with worn out shoes and a little ray of hope for a better tomorrow.

This has been the harsh realities of young lawyers before the corona virus pandemic and leaves one to the horrific imagination of what their fate will be after the pandemic, considering the economic effect of the pandemic globally, employers are laying off employees, the world has shut down and when we finally re-open, a lot of unpleasant changes will definitely occur. How then can these young lawyers be encouraged to continue in the profession and pursue their dreams because, whether we appreciate it or not, they are the future of the Nigerian legal profession and without a solid foundation and support, our future is destined to be in shambles.

How then can this situation be averted? A change can only be successful when it starts from the foundation, there are many legislations governing legal practice in Nigeria and one of the them  is the Rules of Professional Conduct 2007 and by virtue  of rule 7, lawyers are prohibited from carrying on the business of:

  • Buying and selling of commodities
  • Commission agent
  • And other business which the Bar Council may from time to time consider to be incompatible with the practice of a lawyer or as tending to undermine the high standing of the profession

Having a comprehensive look at the provision of the above rule, one can only conclude that to contravene them will result to grave consequences. Considering the fact that young lawyers make little or nothing from the legal practice, I recommend that the above rule be amended to encourage the carrying of businesses as long as it is legal and does not interfere with the productivity of lawyers.

The Nigerian Bar Association should also map out a certain remuneration for young lawyer within a defined age bracket and ensure that such stipulation is adhered. The young lawyers in the Nigerian legal profession deserve all the encourage that they can get because the future depends on them.

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The Big Question Winning Essay

CHINYERE UDENKWO Esq.

The global pandemic ravaging the world is gradually unveiling a new era, were all facet of the Economy is affected in one way or the other. The law practice as well as the administration of justice in Nigeria is not left out. Although, the Nigeria legal system was entirely analogue, there has been a steady but slow switch to technology. This has shown that legal practice and administration of justice in Nigeria is due for a reform that should usher us into the era where the use of technology in the courts would become a norm and for this digitalization to be possible every player, in the legal industry have a role to play in gearing the process. For instance in Lagos, the e-filling system had earlier been introduced and has been in use prior to covid-19 induced lockdown. This cannot be said of most other states of the Federation.

The shutdown of courts have led to the congestion of cases especially those requiring urgency and other pending matters, backlog in the delivering of judgement and delay in the administration of justice. Nigeria should take a clue from country like Kenya where a Kenyan judge recently delivered 23 judgement via skype in his chambers at the Mombasa high court.
The litigation lawyers are not left out as the shutdown of the courts is indeed frustrating. Thus this is an indication for this lawyers that the legal practice have grown beyond going to court and impressing client. There is now need for them to diversify their skills and competence to take advantage of the changing system. For instance where the litigation lawyer have to appear for a matter through the use of zoom or skype, it will definitely increase the charges of Legal services such lawyer will need to improve the infrastructural settings of his firm to be more palatable to the viewing public.
The fate of the new wigs is still a sad story to tell as the Nigeria legal system is not making any adequate provision for the accommodation of this set of individuals in the legal industry. It is a well known culture that the remuneration of an average young lawyer in Nigeria remains remarkably low due to low demands for legal services. The young lawyers should equip themselves to be grounded in the legal principles and technologies supporting legal principles as many older lawyers are mostly analogical and will need the young lawyer’s assistant to be able to meet up with the transition to digitalization. There should be a legislation guiding the employment of the young lawyer. For instances, there should be a general standard for such employment, which will make issuance of a contract of employment between the principal and the young lawyer a norm, as they are mostly at the mercy of the principal. Such contract of service should be in conformity with the provision of the Labour Act (which absolutely define who a worker is and the rights of such persons) and also a reasonable remuneration should be included.
It is pertinent to know that the global change has more than ever made digitalization of the justice system inevitable if any progress will be achieved. There should be reforms and enactment of some sort to accommodate the global change. For instance the provision of the Rules of professional conduct 2007 particularly under rule 7(1-2) which prohibits a legal practitioner from engaging in other trade or business and the provision with regard to advertising as encapsulated under rule 39(2) of the RPC calls for a reform, as Nigeria should take a clue from the united states of America legal system where a lawyer is authorized to advertise his services. This will in turn create another avenue through which a lawyer can generate income and prevent frustration faced by litigation lawyers if this Lockdown continues. The civil procedure rules of the various courts needs some readjustment, there should be provision for the inclusion of virtual sitting of courts like use of skype, zoom and the likes. There should also be provision of technological facility( zoom or skype appearance room or the likes) for the prisons and police stations to enable the inmate to adequately appear for their matters.
Although, it is noteworthy that Lagos is again blazing the trail, by releasing a Practice direction to regulate the proceedings of virtual court hearing in order to conform with the social distancing rule required in this period.
In conclusion, the digitalization of the legal practice in Nigeria will definitely lead to the downsizing of the workforce in the legal industry, but be that as it may, it will subsequently usher the system into a new era of positive growth, although there has been positive steps taken by some courts, an example is the E-filling adopted mostly by the industrial courts, and the virtual hearing held via zoom at Ikeja high court 10 Lagos state on the 4th day of May 2020 , a judgment delivered by Honourable Justice Dada is a welcome development and such growth is worthy of emulation by other courts in the country. Also Order 34 rule 29 of the Abuja Federal Capital Territory High Court Civil procedure rules 2019 which permits the admission of the evidence of a witness through video conference of any electronic devices capable of recording live(as if he is personally in attendance in the court) is a progress.
This global pandemic with it’s diverse effects should be an eye opener to the Nigeria legal system to put in place enforceable legislation to intensify the efforts towards ensuring the complete technological compliance of the court system.

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News & Events

Law Essay Competition

The Law Essay Competition titled “The Big Question” has finally come to a close as the winners have emerged and their prizes have been duly awarded.

A hearty congratulations to the winners of the IST edition of the Big Question Competition. To the rest of the participants, you are also a winner and we wish the best. The 127 new partners who signed up with us via our website, you are warmly welcomed to the family.

Elite Lawyers Association
Transform Your Wit!

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Law & Crime

THE PRINCIPLES OF SELF DEFENCE IN THE NIGERIAN LEGAL SYSTEM

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A woman stabs the husband, to death in Ikorodu Lagos alleging it was self defence.

Now, the question that comes to mind would be: Self defence which may reduce the punishment for the offence of murder to manslaughter, will it avail her in a successful plea and other defences?

Definition of Self Defence

Self-defence according to Black’s Law Dictionary, 10th Edition is the use of force to protect oneself, one’s family or one’s property from real or threatened attack.

The principle states that a person is justified in using a reasonable amount of force in self-defence where he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid this danger.

Section 286 of the Criminal Code Act states:

when a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault provided that the force used is not intended, and is not such as is likely, to cause death or grievous harm”.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using the force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.

According to report, the sobbing suspect was interviewed, she said “I didn’t kill him intentionally. He was always Battering me. Today, he pinned me down and started beating me again. I picked the knife to scare him, but I mistakenly stabbed him”.

From the statement above, one would be left to wonder if the intended plea would be “accident” or “self defense” or “provocation” or if conflicting defense are intended.

In the supreme court case of Peter Iliya Azabada V. The State Legal Pedia Electronic Citation (LER 2014) Sc. 367/2011. Onuoghen JSC had this to say:

‘ In criminal trial, the trial court should consider all defences available to an accused person irrespective of its merits or stupidity. I hold the view that the principles does not mean that the court can uphold conflicting defences.
Where the defences raised by an accused person conflicts with one another, the trial court, in my view, though obliged to consider all the defence applicable to the case having regard to the evidence on record. Where the facts disclosed in evidence support one as against the other as in this case the court will adopt the established defence.

On the other hand, one may be inclined to think of what provocation is. This is what Rhodes  – Vivour, JSC had to say on provocation; “Any act or words may be provocative” he went further to define provocation as an act or series of acts done by the deceased (when alive) to the accused person which would cause a reasonable person, a sudden a temporary loss of self control rendering the accused person to subject to passion as to make him for the moment not master of his mind.

What then happens in a successful defence of provocation in a charge of murder?


Rhodes-Vivour, JSC went on to say: “in a charge for murder, a successful defence  of provocation has the effect of reducing the charge to Manslaughter. Once the accused person is convicted for manslaughter, the trial judge has discretion on sentence”. Sentence can be a custodial sentence ranging from one day to day life imprisonment. Whereas, for a conviction for murder, there is no discretion. The sentence is death”.

On accident

Accident means that the action leading to the injury was unintentional. Accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and did not engage in any culpable negligence. But it only applies where a defendant is engaged in a lawful conduct.

To assert accident as a legal defence, the burden is on the defendant to prove that he/she acted with no criminal intent or culpable negligence.

The defence of accident is available in any case that requires intentional criminal conduct as an element.

This means that in an offence whereby an accused picks up a knife to “scare” someone and eventually stabs the victim, the accused cannot (in my opinion) rely on accident.

Now let us look at the provision of the Law Section 24 of the Criminal Code states that “a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or an event which occurs by accident”. 
The question now is “at what point will an event or an act committed be deemed accidental?

In Maiyaki V. State, the Supreme Court held as follows “An event is said to be accidental where the act by which it is caused is not done with the intention of causing it and when its occurrence is as a consequence of such act, it is not so probable that a person of ordinary prudence ought in the circumstance in which it is done, to take reasonable precautions against it.

In conclusion, when one successfully pleads accident, it only makes the act not to fall within the provisions of Section 316 of the Criminal Code. 

OKOYE BRIAN C. Esq.

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Law & Family

AN OVERVIEW OF FAMILY LAW IN NIGERIA

This work will cover key issues like: jurisdiction and, pre- and post-nuptial agreements, divorce, nullity of marriages, judicial separation and custody of children.

JURISDICTION AND CONFLICT OF LAW

Nigeria as a federation has 36 states and the Federal Capital Territory, Abuja. The breakdown of statutory marriage and other matters incidental to it are under the exclusive list of the Nigerian Constitution as amended in 2010. This therefore means that the National Assembly makes the laws regulating matrimonial causes.

The law regulating and governing marriages, marital breakdown and welfare of children in Nigeria is the Matrimonial Causes Act enacted in 1970. Again, in 1983, the Matrimonial Causes Rules were made , setting out the procedure for instituting actions for the dissolution of marriage and custody and maintenance matters incidental to dissolution of marriage.

Pursuant to the United Nations Convention on the Rights of the Child, Nigeria enacted in 2003, the Child’s Rights Act which has been adopted by 24 states including Lagos, Enugu and Rivers states. The law sets out provisions on the welfare and adoption of children. Lagos State enacted the Family law Rules in 2012 which have greatly simplified procedures on adoption, custody, guardianship and welfare of children in Lagos State.
Others laws include:
The Maintenance Orders Act
The Married Women’s Property Act 1882
The Law against Domestic Violence in Lagos State 2007
Received English Law
There are no separate family courts. The high court of the states and the Federal Capital Territory has jurisdiction to entertain matrimonial causes. It should however be noted that where an order of maintenance is ordered by the High Court, it can be enforced by a court of summary jurisdiction in a summary manner. See Section 114(1) of the Matrimonial Causes Act. Lagos State has its own family court to deal with matters of guardianship, custody and adoption but not related to matrimonial causes.

The requirement for courts to have jurisdiction to entertain divorce proceedings and relief attached thereto is “domicile” in Nigeria. Thus, a person domiciled in any state of Nigeria is deemed domiciled in Nigeria and can bring a petition for divorce in the High Court of any state in Nigeria whether or not he is domiciled in that state. The rule of forum convenience empowers the court to transfer matrimonial cases filed in a state High Court to any other state, but in the interest of justice.
In respect of joint property of the parties to the divorce proceedings, the rule of domicile also applies and the court where the divorce matter was instituted has jurisdiction. However, it is advisable to institute such matter or proceedings where the said property held jointly is situated. This will eliminate the need to register the judgment in the state where the property is situated before enforcement.

With respect to children, the court with jurisdiction over divorce proceedings has same over custody and child maintenance. This is because such jurisdiction is based on the main matrimonial cause. Thus, general rights of the child for instance, adoption, custody, guardianship and maintenance are not based on matrimonial causes and as such, domicile is not a requirement. Mere residence in the state that has adopted the Child’s Rights Act will suffice.

The terms “domicile” and “residence” are often used synonymously, however, they are different. Where domicile is the place where a person is physically present and to which that person intends to return and remain as a permanent abode, residence is the place where a person actually lives. Therefore, it means that residence requires bodily of physical presence as an inhabitant in a place while domicile requires bodily or physical presence and an intention to make the place a permanent abode. In Nigeria, the domicile of the husband determines the jurisdiction of the court but this is subject to the provision of Section 7 of the Matrimonial Causes Act which makes special provisions on the wife’s domicile thus:
In the case of a deserted wife domiciled in Nigeria either before her marriage or immediately before the desertion.
A wife, resident in Nigeria for at least three years immediately preceding at the date of bringing proceedings.

PRE- AND POST-NUPTIAL AGREEMENTS

Pre- and Post-Nuptial agreements are not common in Nigeria, thus, there is no reported Nigerian case law on them. The Court of Appeal has by implication, pronounced on the validity of such agreements in Oghoyone V Oghoyone where it held that the trial court was right in holding that the respondent had a joint interest in a property belonging to the parties because it was not referred to in their pre-nuptial agreement. Also, Section 72(2) of the Matrimonial Causes Act recognizes the rights of parties to execute such agreements but the validity or extent to which the agreement will be binding is at the discretion of the court.

DIVORCE
Divorce is the legal dissolution of marriage by a court or other competent body. In Nigeria, leave of court is required to petition for dissolution within two years of marriage except where the petition is predicated on grounds of lack of consummation, adultery, rape, sodomy and bestiality; and leave will not be granted unless the party seeking leave has suffered exceptional hardship or depravity. The court also considers the interest of the children of the marriage and possibility of settlement in determining the application for leave.  There is only one ground for divorce in Nigeria : that the marriage has broken down irretrievably. Therefore, there are facts and situations which establissh that a marriage has broken down irretrievably and they are provided in Sections 15 and 16 of the Matrimonial Causes Act. A petitioner must satisfy one or more of these facts in court. These facts are:
Lack of consummation of the marriage
Adultery and the fact that the petitioner finds it intolerable to live with the respondent.
Desertion for a continuous period of at least one year immediately preceding the filing of the petition.
The other party to the marriage has, for at least one year, failed to comply with a decree of restitution of conjugal rights.
The other party to the marriage has been absent from the petitioner for such time and in such circumstances to provide reasonable grounds for presuming that he or she is dead.
The facts above are usually known as the fault-based dissolution of marriage in that the petitioner must allege fault on the part of the respondent. There are however non-fault based dissolution of marriage where the petitioner need not allege any fault on the part of the respondent in order to secure dissolution of marriage. these facts are:
The parties have lived apart for a continuous period of at least two years immediately preceding the filing of the petition, and the respondent does not object to the dissolution of marriage. note that this fact is conjunctive that is, both facts in one must be established.
The parties have lived apart for a continuous period of at least three years immediately preceding the filing of the petition.
A petition for dissolution of marriage will not succeed if the petitioner has condoned any of the above grounds or facts that must be proved.

NULLITY
Nullity simply put means invalid; the state of nothingness. Nullity of marriage can be of a voidable marriage or of a void marriage. Section 5 of the Matrimonial Causes Act provides that marriage is voidable where:
Either party to the marriage is incapable of consummating the marriage.
Either party is: – of unsound mind; mentally defective; or subject to recurrent attacks of insanity or epilepsy.
Either party is suffering from a venereal disease in a communicable form.
The wife is pregnant by a person other than the husband.
The petition for nullity cannot be granted at the instance of the party suffering the incapacity unless the party was unaware of the incapacity at the time of the marriage. Again, with respect to the 2nd, 3rd and 4th points above, a decree of nullity will not be granted unless the following is established:
Ignorance of the fact constituting the ground on the part of the petitioner at the time of the marriage.
Petition was filed not later than 12months after the date of marriage.
Marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the fact constituting the ground.
A decree of nullity of a void marriage will be made in any of the following instances:
At the time of the marriage, either of the parties is lawfully married to another person.
The parties are within the prohibited degrees of consanguinity and affinity.
The marriage is not valid under the law of the place where the marriage takes place due to a failure to comply with the law of that place relating to the form of solemnization of marriages.
Lack of consent of either party, because: – it was obtained by duress or fraud; the party was mistaken as to identity of the other party or the nature of the ceremony; the party is mentally incapable of understanding the nature of the marriage contract.
Either party is not of marriage age (18years according to the Child Rights Act).

JUDICIAL SEPARATION
A decree of judicial separation only relieves the petitioner from the obligation to cohabit with the respondent while the decree subsists. It can be made in any of the circumstances stated with respect to grounds for dissolution of marriage. It does not affect the status, rights and obligations of the parties to the marriage. Thus, the marriage is still valid and subsisting and neither party can remarry while the decree subsists.

CUSTODY OF CHILDREN
A party seeking dissolution of marriage or other relief must state the number and age of the children and the arrangement for their maintenance, education and custody. The court can raise the issue of custody suo motu where the parties refuse to and cannot grant a decree absolute until arrangements for children are determined. The court may order joint custody or award custody to one of the parties with visitation rights for the other party and the primary consideration in awarding custody is the interest of the child. factors determining which of the parties should have custody include the emotional attachment to a particular parent, adequacy of facilities, wishes of the child, age and sex of the child, conduct of parties and so on. As a punitive measure, custody is not awarded to the offending party. However, where the mother does not suffer moral misconduct, infectious diseases, insanity, lack of reasonable means, or is not cruel to the children. Custody of children of tender age and female children is given to the mother. Custody may be sought under the Matrimonial Causes Act or the Child Rights Act. However, custody for unmarried couples is provided for only in the Child Rights Act. Where the Act has not been adopted, the customary or islamic law applies. It is at the discretion of the court to include visitation rights of the other party in a custody order and also order supervision. Child arrangement is valid till the child reaches 18 or 21 years depending on whether the order was made pursuant to Matrimonial Causes Act or Child Rights Act.


BY


C. C NWANKWO Esq