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OFFERING LEGAL SERVICES TO SUSPECTED “PALLIATIVE LOOTERS” IS A CONSTITUTIONAL AND MANDATORY PROFESSIONAL RESPONSIBILITY OF THE NIGERIAN LAWYER!

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PressReader - The Guardian (Nigeria): 2019-07-16 - Nnamdi Obiaraeri

⚖️ The trending news that some lawyers have elected to offer free legal services to defend alleged “palliative looters”, if and whenever they are arraigned in court, have become the subject of intense debate and misunderstanding.

This intervention is to clarify that the proposed gesture of lawyers, being to offer legal services, to these class of persons, whether for a fee or free of charge, is both a constitutional responsibility and a professional obligation.

This must not, as seems to be case in some quarters, be misconstrued to mean that lawyers are in support of those who have “looted palliatives” or are encouraging those planning to destroy other public or personal properties or to suggest that there is an already made or existing permissible legal defence for such wanton actions.

Lawyers will continue to be seen as controversial members of the society as long as their professional role of defending the rights and interests of citizens and members of the public remain grossly misunderstood.

The misunderstanding of the activist role of the lawyer in society is one of the things that made it fashionable in the olden days for some people to agitate and say “KILL ALL LAWYERS”.

Well, a society without lawyers is a society without laws and a lawless society can only be nasty, brutish and short as we just witnessed a bit of it in the wave of riots and destructions that trailed the otherwise recent peaceful #ENDSARS protests.

The presence of a defence lawyer in any criminal case is among other things to ensure that proper investigation procedures are adopted and obeyed and that fair hearing and fair trial according to law is achieved.

In Nigeria, lawyers are specifically enjoined by the Rules of Professional Conduct made for Legal Practitioners to vigorously defend the rights of all citizens including rendering pro bono services to the downtrodden.

Therefore, when lawyers offer to defend suspected “palliative looters” in court, they are merely accentuating or drawing attention to two key things out of the myriads of constitutionally guaranteed rights to all persons charged with the commission of a crime in a court of law namely:

✔️(a) the right to presumption of innocence under section 36(5) of the 1999 Constitution as amended.

This raises the rebuttable✔️ presumption of innocence in favour of every defendant and all alleged “palliative looters” enjoy this protection until found guilty by a court of competent jurisdiction.

✔️(b) the right to legal representation under section 36(6)(c) of the 1999 Constitution as amended which avails all defendants charged with a crime whether or not they are alleged “palliative looters”.

Our constitutional order remains that every accused person (now called defendant under the new nomenclature or taxonomy of adjectival and procedural laws) is entitled to defend himself in person or by any lawyer of his or her own choice.

In the light of the foregoing, the following must be noted concerning this subject matter under consideration-

  1. The lawyers’ offer of free legal services to potential defendants, as controversial as it may sound to the layman, is not anything new or extraordinary.

Specifically, offering free legal services to suspected “palliative looters” is not a big deal and it is not unpatriotic either.

  1. Lawyers electing to do so have not said that they will free the defendants of the charges at all cost as they are not the Judges or trial Magistrates who have power of adjudication.

The lawyers are merely serving advance notice and strongly too that irreducible minimum standard procedures expected in criminal investigations and trials must be met and compiled with.

  1. At all material times, the type of charge and evidence presented against a named defendant will determine the nature of defence he, the defendant, is legally expected to enter before determining his or her culpability.
  2. It is settled law that he who alleges must prove and the allegation of commission of a crime must be proved beyond reasonable doubt by the prosecution.

It is not for the defendant to prove his innocence and this is not waived in the alleged palliative looting cases.

  1. Therefore, the onus of proving the guilt of an alleged “palliative looter” rests with the prosecution except where the defendant has made a voluntary confessional statement upon which the court can rely on to convict without more.
  2. Whether or not the defendants were caught in the act or with the looted items or whether or not they will be eventually convicted do not affect, abridge or tamper with their constitutional rights to be presumed innocent, investiigated properly without oppression, granted bail in deserving circumstances at the discretion of the court and be represented by counsel of their choice(s) in circumstances already fully justified above.
  3. What defences are not open to alleged “palliative looters” given the collateral circumstances of this case that are already commonly available in the public domain?

It will be interesting to see what manner of defence(s) those charged with “looting palliatives” stored in government facilities or carting away government properties will put up (alibi, purchaser for value without notice of encumbrance, finder of an ownerless thing and so on) but the defence of “bonafide claim of right” will not avail such established looters as those looted items clearly belong to Government (a legal personality) or its authorised agent or facilitator.

  1. It is beyond argument that the looted items are not ownerless things under the law. The burden of proving that they are ownerless therefore rests squarely ✔️on he who asserts otherwise, being the man who looted them, if that is his proposed defence.

8 (a). It remains good law that an ownerless thing cannot be stolen but a bag of rice or carton of Indomie customised with the owners identity or marks or insignia is enough warning that the items are not ownerless commodities.

8 (b). A person found in possession of such customized bag(s) of rice or carton(s) of Indomie has the burden to prove how he came to be in possession of them.

8 (c) The legal window of defence open to a finder of an ownerless thing may avail if the defendant leads credible evidence to show that he did not loot the items himself, but that he found them where they were abandoned, picked them up and have not done anything to the item(s) to assert adverse ownership.

8 (c). At all material times, it is for the court to accord or refuse to accord probative value to this line of evidence by either believing or disbelieving it.

The court is also entitled to weigh this evidence against the offence with which the defendant is charged such as receiving stolen property and the presumption of law relating to doctrine of recent possession (where stolen property is found in possession of a person immediately after a theft).

The consequence is disastrous if the court does not believe it.

  1. Despite break down of law and order during the riots, the criminal laws have not changed to warrant or authorise looting of government property or dispossessing private persons of their property by force.

No such defence will avail except in the jungle.

What is loosely called looting by a mob is legally speaking strictly seen as stealing or theft.

  1. The law does not permit that “a hungry person” can steal or break into the property of another to steal to feed himself.

10 (a). Right to ownership of moveable property is constitutionally guaranteed under section 44 of the 1999 Constitution as amended and as such no one shall be forcefully deprived of his property except with his prior consent, authority or approval.

  1. Hunger is not a defence to a charge of stealing although the court may, in its absolute discretion, take that peculiar challenge into account during sentencing or flowing from plea of allocutus (mitigation of sentence).
  2. However, the punishment to be imposed on a person who looted a bag of rice or a carton of noodles (for example) may not and should not be the same with that of a person who removed plasma televisions, curtan blinds, plates, tilet seats, electrical fixtures and fittings, roofing sheets, office chairs, medical equipment, refrigerators, cars, mattresses, computers or tractors or arms/guns and ammunitions or uniforms of security agencies or actually burnt down public buildings including court halls on that same occasion.
  3. Those who killed or maimed, ate the bodies of those they killed or maimed, (whether they be security officers or civilians) or burnt public or private properties during this period remain strictly liable under the law to be arraigned separately for their various heinous offences and do not fall into the loose classification of “palliative looters” being discussed herein.

14 The claim in some quarters that the stored “palliatives” belong to “Nigerian people” and as such were taken by angry masses in the circumstances under purview is again ignorant and untenable in law.

As tersely stated by one sound legal mind, no self respecting lawyer will put a client in a witness box and lead this defendant/client to say that the palliatives stored in a Government warehouse belongs to him and that he took part or all of them because they belong to him.

That will be the shortest route to jai for the unfortunate defendant and perhaps the easiest way for his lawyer to lose his professional licence.

Lawyers are fixed with knowledge of the law!

Conclusively, it was not right that the palliatives were hoarded in the midst of ravaging hunger and poverty in the land.

Those who hoarded the palliatives are wicked, callous and unpatriotic to say the least and in established cases of diverting them must be brought to book to deter future occurrence.

However, it was also not lawful or legal that the stored palliative items belonging to Government or even private persons should be looted in a riotous manner. Law and order is the essence of society.

Two wrongs do not make a right.

Those alleged “palliative looters” who have been arrested must be arraigned without compromising their constitutional rights or violating their fundamental freedoms and in sync with the fast track mechanisms and adjectival safeguards entrenched in the Administration of Criminal Justice Law.

During sentencing, the courts must take judicial notice of what led to the avoidable protests and eventual violent riots, the present mournful mood of the nation and the need not to congest the correctional facilities (if they were not razed down during the riots) and tamper justice with mercy in appropriate cases

It is good that Nigerian lawyers are on ground to ensure that the needful is done and that justice is served according to law.

This is why that ancient chant “KILL ALL THE LAWYERS” was quickly and wisely discarded long ago because lawyers are, properly speaking, social engineers and necessary evils.

Let peace return to our troubled country and let Nigerian lawyers not relent in their avowed mandate of “promoting the rule of law”, being the motto of the NBA!

A new normal is possible!

🖋️
Prof obiaraeri, N.O.

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THE ONE TRUE GIRL CHILD, TURNED INTO A WOMAN OF ADMIRATION, VALOR AND A GODDESS OF IMMORTALITY

(DEDICATED TO AISHA YESUFU AND ALL GIRL CHILD IN THE WORLD)

Written by:
Wisdom Meni Adike Esq.
(Junior Gani)
For enquires:
+2348064745681

On this day the greatness of the girl child was born into a state of world recognition.
Many have asked the question, who is that girl child that ought to be celebrated and immortalized, wearing the green white green?

And I said, she is the strength of the Nigerian State. Behind her decency is a child grown into a virtuous woman, with valor, bravery and courage unprecedented. She is the hope of the Nigerian State. She is the thread that holds it all, as a united National frontal call the Nigerian State.

Her existence is the hope that with the girl, the lost glory of the Nigerian State, can be rebirthed again, with dignity in labor, integrity, hope, better living standard for the proletariat of the Nigerian State.

They asked me, where is that girl child you talk so much about passionately, like she is a goddess of immortality? And I said to them, look, look, she leads the Nigerian youths brutalised from scars of starvation, victimisation, Tribalism, corruption and nepotism. She is the wind that blows from the deepest of the deep blue sea. She is the hope of our nation, that when the girl rises, the Nigerian State stands still.

They said to me, show us one girl child worthy of this immortal coloration.

And I said to them, she is a standing rock of greatness in the ocean of bravery, her hijab carry’s authority, her veil bears honour and integrity, for she speaks and matches her words with action built on truth and courage, strongly rooted on integrity.

And they said what is her name? And I replied by saying, her name is Aisha Yesufu.

HAPPY WORLD GIRL CHILD DAY TO ALL GIRL CHILD AND MY UNBORN GIRL CHILD I DREAM OF HAVING SOMEDAY.

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INVITATION TO THE ELA LAUNCH AND LECTURE SOIREE

Dear Lawyers, we request for your esteemed presence in our foremost epoch making event with will mark our Launch Soiree.

Kindly avail yourself as the event promises to be interesting, enlightening and fun with lots of media presence.

Details are on the invitation card above.

Transform Your Wit!

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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.

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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.