Categories
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

Categories
Civil Law

Community policing in Nigeria: Reforming the structural/ operational Nature of the Police.

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Abstract
Everywhere in the world, security has proved to be a challenge which has attracted global and municipal attention. It is our aim in this discourse to analyse the issue of security as it relates to the Nigerian State and the ongoing debate on whether states of the federation should be allowed to establish its own police departments; the advantages or likely challenges associated with the policy; and the overall effect the idea may have on the Nigerian economy, as it shall also be our concern, as we go on in this discourse, to raise possible recommendations on the subject matter.


 INTRODUCTION
The most onerous responsibility of any Government is to ensure at all times the continuous safety of the lives and properties of people within its territory. Consequently, it became necessary, if not inevitable, for the Government of the countries of the world to establish to wit- the Army; the Air force, the Navy, the police and other paramilitary agencies that would ensure that lives and properties are secure at every material time. Nigeria as a country with all these agencies as mentioned above still falls short of ensuring that the lives and properties of her citizens are not destroyed by terrifying acts of unscrupulous members of the society.

 Since 2010 when the Ex-President, Goodluck Ebele Jonathan took over power, the issue of security became even more challenging in the country and as a result, the country was plunged into its darkest period since the civil war with diverse kinds of terror being unleashed in different parts of the country ranging from the kidnap of over two hundred girls in the Northern part of the country, to the issue of BOKO-HARAM as a terrorist group with its dominance in the Northern part of the country, the terrifying acts of the Fulani Herdsmen in Enugu state , Kano state, Kaduna state and most recently in Yobe state and indeed other parts of the country. Just recently it was also reported by the media that the BOKO-HARAM terrorist group kidnapped dozens of girls from Yobe state which is also in the northern part of the country. The list could go on and on but the point we are trying to emphasize would remain the same as the security threats the country is facing is continuously spreading its effect throughout the country.

It is important to state at this point that the kinds of threat we face as a nation are not entirely different from the terror that other countries of the world are facing but the fundamental thing to note is that they have taken a different approach towards seeking for lasting solutions to reduce the security challenges they are facing and as far as possible upgrade their security consciousness to a point where the threats would not affect their development and growth economically. It is my aim to comparatively discuss these measures as we move on in this work.

           The Nigeria Police
The Nigeria Police is an agency of the government created by an act of the National Assembly.  Section 3 of the Police Act provides as follows: 
There shall be established for Nigeria a police force to be known as the Nigeria Police Force (in this Act referred to as “the Force”).
Thus, it is the above section that creates what is known and referred to as today in Nigeria as the Nigeria Police Force and from which they derive the powers they wield and control. The Act further provides under section 4 among other things, for the duties of the Nigeria Police. Section 4 of the Act provides:
  “The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.  [1979 No. 23.”
The above section clearly outlines what the fundamental duties of the Force are and it is on this basis that the Nigerian police have seemingly conducted their affairs in the past up until now. It is worthy of note that the Act further provides under section 5 of the Act the constitution of the Force as follows:
                  “ There shall be an Inspector-General of the Nigeria Police, such number of Deputy Inspectors-General, Assistant Inspectors-General as the Nigeria Police Council considers  appropriate, a Commissioner for each State of the Federation and such ranks as may,  from time to time, be appointed by the Nigeria Police Council”.
From the foregoing provision, it is clear that due to the very important need to ensure that the Nigeria Police Force carries out its functions effectively, it provides that there shall be a commissioner of police for each state of the Federation who would of course be charged with the responsibility of ensuring that the police command in each state performs its functions diligently and effectively.

            THE STATE OF BRAZIL
The government of Brazil is notable among the countries in the world that are operating multiple law enforcement institutions. There are as a matter of fact about five different police departments established under the Brazilian constitution. These institutions operating in the country includes: The Federal Police, The Federal Highway Police, The Federal Railway Police, The state military police and Fire Brigade and The State Civil Police. Of these, the first three are affiliated to federal authorities and the other two are controlled by the government of the states. There is also the one called the “Municipal Guards” however the Guard is not considered a public security force. It is important to note also that by federal law 13,022 gave them de facto police features. According to the Supreme Federal Tribunal, the security forces considered police units by BRAZILIAN LAW  are the ones provided under the Federal Constitution.

          THE STATE INTITUTIONS
There are two types of state police: due to the nature of this paper we shall just briefly discuss the two agencies that are affiliated with the state:
The Military Police and Fire Brigade is the state police responsible with maintaining law and order. It patrols the streets and conducts searches where the situation demands it and imprisons suspects of criminal activity and goes further to hand them over to the civil police custody and in the event that the crime the individual is suspected to have committed is a federal offence, to the federal police. It is important to note that the body is not a branch of the Armed forces and it also does not perform traditional policing duties.
The civil police are the police with criminal law enforcements duties. It has the responsibility of investigating crimes committed in contravention of Brazilian law. The significant thing about this unit is that it does not patrol the streets and generally does not use uniforms.
The above briefly highlights the structure of the Brazilian police and its modus operandi. The structure which has been adopted by the Brazilians is what many jurist regard as community policing. The aim being to make sure that security is at the highest level even at all material time. We shall however, in the later pages of this work, delve into a very brief enquiry on how far this unique procedure has worked and the factors affecting it as we had mentioned in the beginning of this work.

         The United State of America

The concept of community policing as an ideal security structure has its dominance and has been widely practiced in the states of America. It is equally interesting to note that different jurists have expressed their views on what the concept actually implies. However the term community policing is a term that has not proven to have an easy definition because of its nature. This was acknowledged by Wesley Skogan when he cited (Moore, 1992) thus:
“Community policing is not a clear concept, for it involves decision-making processes and creating new cultures within police departments, rather than being a tactical plan. It is an organizational strategy that redefines the goals of policing in other to guide the future developments of departments.”
We cannot agree more with the position of Skogan that the opinion of Moore carefully depicts what community policing actually means. It remains our view that community policing is a concept that seeks to develop a relationship between the police and the public with a view to solving the common problems of the people of the community unanimously. This view was further given support by the erudite scholar professor Jack R. Green when he opined thus:
“The organizing theme of community policing suggests that law enforcement can be more focused, proactive, and community sensitive…”
This concept has been practised in different forms in the Houston, Texas, Madison, Wisconsin, Oakland, California, Baltimore, Maryland, Newark, New Jersey etc. and virtually every part of America. Different issues were used to test the practicability of the idea of community policing in different Areas of the states and in each of these states came to the conclusion that it is a more effective and  efficient system. This concept has in fact played a significant role in the response to criminal activities in the United States such as mass shootings and knife attack in the United Kingdom.



Challenges in the Nigerian System:
The Nigeria state shares some remarkable similarity with the United States where community policing is the only system that has been in place for decades. This similarity is mostly shown in the area of ethnic diversity and cultural differences. The states however equally share shown dissimilarity in the way and manner they have been able to harness the beauty of diversity that is evidenced in their day to day lives. The idea of community policing as an upgraded level of security became necessary in the United States due to the vast nature of America and its landmark. Thus, there was need for the community to be more in charge with the management of their own security. This same need is ever growing in Nigeria with the constant security issues that have risen to a surprisingly remarkable level.Nigeria indeed needs a system of security that will reform the system and provide a more suitable system that will be more responsive to the needs of the society. The police need to create a better relationship with the communities as this would encourage more participation in matters of security. Security is a public matter as much as it is an individual matter and if this is the case, it remains my humble opinion that a community that makes its indigenes more involved in security matter would achieve better security than when it is a matter that is squarely in the domain of people that are foreign to that locality.
I also hold strongly that the killings in Kaduna, Zamfara and other parts of the country would have either been averted or at least, a quicker response would have been seen, if there was a communal system of policing in those areas which would enable the states to respond to aggression without having to wait for the federal authorities to respond to every situation. This is because when the indigenes of a locality are in effective management of their own security, there is the tendency that they would be more responsive.
 It is my opinion that if there is a state police system, the nation would have upgraded its security system and consequently the issue of herdsmen attack, Boko Haram and other communal issues would reduce drastically because the communities would be more equipped to handle threats as they arise.
Amongst the advantages that the system of State sponsored policing or communal policing, whichever form one may regard it, would bring about are the provisions of jobs in the society. If this system is adopted, we would be creating over 20,000 jobs in the system. Given that the nation has been notable for the rate of unemployment its citizens suffers and its inability to do anything about it, a reform in the economy that will begin with job creation  would in more ways than one be highly accepted.


            THE IDEAL ESCAPE

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The police have in many ways shown that there is need to take further steps to ensure that they are more effective in the performance of their duties as provided under section 4 of the Act. This has been made even clearer given recent events that have been unfolding in the country in recent time.
It is our humble view that the Idea of having only a federal police command that that is highly detached from the community has proved to be highly inefficient in resolving the security problems that are currently facing the nation. This inefficiency is further strengthened by the highly populated nature of the country with its vast landmark which the Intelligence unit of the Federal Police command cannot adequately cover. For there to be improvement in the security of this nation, the Police departments of Nigeria must became proactive and highly connected to the members of the communities so as to be more efficient in understanding the problems of those various communities. This is what is called problem-oriented policing according to Professor Jack R. Greene. Unless we adopt a system of policing that encourages community participation in issues relating to the security of the nation, the recurrent Herdsmen attack; Boko-Haram attacks and other acts of terror will not seize to destroy  the very fabric that still hold this nation in one piece.   In Nigeria today, there are communities which do not have a nearby police command unit that would respond quickly to security issues. Some communities do not even have police command units to ensure that the lives and properties of the inhabitants of those areas are protected equally as the ones in other places.
The argument has been that those areas are very remote which then ultimately begs the question: Should they be deprived of their fundamental right to security of human lives and properties because they are from the rural part of the country?
Indeed this question must be answered in the negative because if given an affirmative answer, it would go against the spirit of the constitution of the federal republic of Nigeria. Thus, the remote nature of these areas where these criminal acts occurs mainly has not in any way or manner taken away the guaranteed rights of the citizens that reside in those areas. We humbly submit that they, in all intents and purposes, deserve equal treatment and reserve equally the same rights as those that live in the urban areas.
  Due to these terrifying acts that are overwhelmingly increasing in our society, it has led the National Assembly to the debate as to whether there should be another police command for the states which would ultimately be referred to as “State Police”. This argument is indeed one which the writer has given much attention to and after due consideration has come to the conscious and irresistible conclusion that it is a move towards the advancement of security if it is adequately set up
Recommendation:
Whether it is called “State Police” or “Community Policing” the point we have been trying to make is that there is need for some sort of reform in the set up of security Agencies in Nigeria and it is my opinion that the reform should produce an organization that would be highly connected to the community. No matter what the nomenclature is, the idea is that more Institutions should be established that would be more connected to the States and the communities within the states. A reform like the one I am proposing along side with other jurists is of course, one that cannot be achieved without an Act of the National Assembly. Security/ Arms and Ammunition as an item in the Exclusive legislative list makes it imperative for the national assembly to be instrumental in initiating these long overdue developments in the area of security. It is also our opinion that the State police system should be introduce given the limitless opportunities that would also be created if this reform is introduced. This ranges from Job creation to increase in the welfare of the people and just the security of lives and properties. However, careful measures must be taken to ensure what their functions/limits would be, if any, so that what should be used as an advantage would not finally operate as a disadvantage especially in the hands of politicians. Even though I may not have been able to cover the field given the nature of this paper, it remains my hope that I have shed some light on what would definitely be a stepping stone in the security of this country. Regardless of our political affiliations, the security of this nation should remain a primary objective.

C.C NWAGU Esq.
Associate: Chudi Ozokolo & Associates

Categories
Uncategorized

THREE-PRONG PATHWAY TO ELECTORAL VICTORY IN NIGERIA- NOMINATION, ELECTION AND OR LITIGATION!

In this season of general elections, we need to enlighten on the three imperative steps that guide ascension to political offices in Nigeria via the ballot box and to posit clearly that it is neither a taboo nor a big deal for anyone or political party who is dissatisfied with the outcome of an election to approach the courts by way of election petition or petitions.

Nigeria is a constitutional democracy founded on the sacred principles of rule.

Rule of law presupposes absence of arbitrariness and unwarranted recourse to self help remedy.

Simply explained, under the doctrine of rule of law, no one should take the laws into his or her hands.

Thus, any aggrieved person is reasonably expected to make a complaint to formal authorities (like the Police and or the Courts) for amicable settlement or judicial determination of the alleged wrong or wrongdoings.

With particular reference to seeking public office via elections, Nigeria has a rich array of rules that govern it as extrapolated from the 1999 Constitution of Nigeria as amended and the Electoral Act, 2010 as amended and other adjectival laws relevant in this regard.

From the community reading of the relevant provisions of the 1999 Constitution and the 2010 Electoral Act as amended, the recognised tripod stages in an electoral contest in Nigeria are *nomination,* *election* and or *litigation.*

The Nigerian constitution does not approve of independent candidacy and as such, a candidate in a general election conducted by INEC must be sponsored by an INEC registered political party.

Double or multiple sponsorship of a candidate by parties is also outlawed and translates to disqualification under the Electoral Act.

For purposes of nomination by a party as a candidate in a general election, a person must belong to a political party and participate in the party primary which may be by direct or indirect election or by consensus.

Party primary is intra-party election and involves only party members and must be conducted in sync with the Party Constitution and Guidelines which must never offend or violate the provisions of the Electoral Act and or the 1999 Constitution as amended.

A person who emerges as candidate of the party is subsequently sponsored in the general election for that office by the political party forwarding his or her name and particulars to INEC.

It must be accentuated that in tandem with the hallowed doctrine of rule of law that  forbids self help remedy, any aggrieved aspirant in the Party Primary process is duly authorised, without prejudice to the principle of party supremacy, to approach any High Court of a State, High Court of the FCT or Federal High Court to ventilate on pre-election issues.

Appeals on pre-election matters are entered at the Court of Appeal and terminate at the Supreme Court.

At the conclusion of party primaries, the political parties are expected or required to forward the names and particulars of their candidates for the general  election to INEC.

Thereafter, a general election is declared by INEC as an umpire between the political parties that have sponsored candidates in that election and in the specific positions being contested.

A general election is an inter-party contest with clearly defined rules, guidelines and timelines abstracted from the 1999 Constitution as amended, the Electoral Act 2010 as amended and applicable INEC guidelines for the conduct of such elections.

Only registered voters vote in a general election by way of thumbprinting on the logo of the party of their choices.

At the end of voting, INEC declares the candidate of the party that has satisfied the constitutional requirements and garnered the lawful majority of the votes cast  winner and issues certificate of return to the victorious candidate of the party.

No person is expected or authorised to unilaterally declare the results in a general election other than by INEC.

It is unlawful and a punishable criminal offence to declare election results Suo motu, meaning, on your own accord.

When INEC declares the final result of an election, it becomes functus officio the exercise.

Candidates and or the political parties are at this stage free to accept the result and there will be no need for litigation or legal redress.

Where however the result is  rejected or disputed, the aggrieved candidate and or political party are not left in the lurch as a window of opportunity exists for presenting election petition(s).

In this circumstance, the next and final stage therefore is litigation and that is the exclusive preserve of the courts and more particularly the Election Petition Tribunals.

The various Election Petition Tribunals set up by the Chief Justice of Nigeria have the sole responsibility to entertain petitions arising from the conduct of the elections but have no jurisdiction in pre-election matters.

All State and National Assembly election petitions end at the Court of Appeal on a final appeal while the Governorship and Presidential election petitions terminate at the Supreme Court of Nigeria and these must be within the constitutional timelines allotted for determination of election petitions.

Once the final court delivers the final judgement in appropriate election petition cases and gives a seal of judicial approval to the victory or upturns the victory at the polls or makes preservative or consequential orders, appeals lie no where else because it is in the interest of justice and public policy that there should be an end to litigations and in this case, elections.

Therefore, it is an unfettered constitutional right consistent with the rule of law for a candidate or political party that is disatissfied with the outcome of an election result to present a reasoned petition before the appropriate Election Petition Tribunal in the manner and on grounds clearly suggested by our electoral laws.

With the foregoing, it is clear that Nigeria is not a jungle where humans beings are to be killed or maimed or properties destroyed with reckless abandon because of elections or anything else for that matter.

We are clear headed to unequivocally say to our politicians and all citizens at large that instead of resort to violence, killings and arson attacks over election outcomes or any other issue, they should kindly go to court as it is their unfettered constitutional right.

No party or its candidate should be held in derision or scorn for taking the civilized option of presenting election petitions instead of resort to violence or other self help remedy.

In this same light, no party or its candidate is expected to hold the country hostage because of threat of presenting an election petition as it is a routine and intrinsic part of the reality of our constitutional order consistent with the doctrine of rule of law.

We are optimistic that as the bastion of democracy, defender of the oppressed and the last hope of the common man, our courts are well able, ready and capable to give an aggrieved person the justice of his or her case because our law reckons that for every wrong there is a remedy- ubi jus ubi redium.

Let the rule of prevail while we grow our democracy!


A new normal is possible!


Prof Obiaraeri, N.O. Ph.D (Law), B.L., etc.

Categories
Law & Business

LAW PRACTICE IN THE FACE OF TECHNOLOGICAL DISRUPTION

Change is inevitable and the disruption it brings often causes inconvenience and opportunities. Robert Scroble.

Disruptive technology has pervaded every profession and our most noble legal profession is not an exception. It is apparent that a new dawn has arisen for legal practice world over.

The traditional practice of law by lawyers through the use of papers and hard documents is giving way to paperless lawyering with the automation of legal services. Technological innovations like virtual reality, artificial intelligence, online dispute resolution, e-learning/library, relentless connectivity, internet of things, and virtual meetings have become the order of the day.

The advantages of this technological revolution are endless as it is faster, it increases efficiency, it reduces cost, it reduces stress and it increases creativity.

There appears to be no area of law that is unaffected by this tide, from case management which is now being done electronically to client interviewing which has gone virtual.

One of the most profound trends now is Artificial Intelligence which is the use of a machine to imitate intelligent human behavior. Lawyers use robots to review legal documents, conduct legal research, and proofread legal documents. In some jurisdictions, robots are used for dispute resolution.

According to an online article published by Global Legal Post on 26th February 2018, Artificial intelligence beat lawyers in a challenge to review 5 contracts containing 153 paragraphs. The challenge pitted 20 top corporate lawyers against the Law Geex AI platform. The results showed that AI completed the task in 26 seconds compared to an average of 92 minutes for the lawyers.

Social media like Linkedin, Facebook and Whatsapp are fast becoming veritable tools for lawyers in the conduct of their cases. In a US case of Romano V Steelcase [2010 WL 3703242] where the Plaintiff filed suit for injuries that she claimed caused her to be largely confined to bed. Defendant then requested discovery of content from Plaintiff’s Facebook and MySpace sites which contradicts her claim. The Supreme Court of the State of New York held that the information requested by Defendant was necessary to the defense of this action and ordered the Plaintiff to provide the Defendant with access to private postings, including deleted material, from both Facebook and MySpace.

Furthermore, with the use of Virtual Reality (a computer technology that generates realistic images, sounds and other sensations to simulate a user’s physical presence in an imaginary environment), Judges may not need to visit locus-in-quo and crime scenes, trials can also take place without a physical location.

The techno-legal disruption is so notorious that the Court in some jurisdictions has given ICT compliant landmark judgments.  Interesting among them is the Indian case of Tata Sons Limited & Ors v John Doe(S) & Ors [CS (COMM) 1601/2016] where the court the High Court of Delhi held that the Court summons can be served on the Defendant in the suit through Text message, Whatsapp, and email.

The Nigerian legal system also has not failed to adapt to the technological trend. In a ruling of 26th July 2018 Hon Justice E. A. Garba of the High Court of Taraba State in Mohammad Awwaldanlami, Esq. v Governor of Taraba State & 24 Ors (TRST/11/2018)held that the originating process and other processes of the court should be served on the 3rd to 25th Defendants/Respondents by posting and sharing on social media. Furthermore, the introduction of electronic registration of companies in Nigeria by the corporate affairs commission, e-filing in some Nigerian Courts and the creation of the Unified Multipurpose Identification (UMID) Card are all steps in the right direction.

Technological disruption in the legal profession is not without its challenges. Being a novel development that was hitherto not contemplated by legislation, there are some borderline ethical considerations. Prominent among them is the issue of data protection as it is becoming a trend for lawyers to invade social media account of parties to extract information for litigation. Many people have also questioned the ethical and legal implication of using robots to perform judicial and quasi-judicial functions.

There is no gainsaying that the technology has come to stay and will change the face of legal practice for good. Law firms must embrace it as it cannot be over flogged that only a lawyer it is only a tech-savvy that will remain relevant in the years to come.

To this end, the curriculum of legal training both at the university and at the Nigerian law school should be expanded to accommodate the latest technological trends.

The Nigerian Evidence Act among other laws should be reviewed to bring it in line with international best practices on the use of technology. It is also suggested that the age-long culture of having a well furnished physical library as part of the requirements for the Conferment of the status of Senior Advocate of Nigeria should be relaxed to allow for more progressive options of a virtual library.

Since the law will always be one step behind technology, it is suggested that best practices legislation should be put in place to tackle the budding challenges of the techno-legal practice.