Showing posts with label article. Show all posts
Showing posts with label article. Show all posts

Thursday, 27 October 2016

Amendment V {to the U.S Constitution}  

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation".

The Fifth Amendment to the United States Constitution is part of the Bill of Rights and protects a person from being compelled to be a witness against himself in a criminal case. 

Although the term fifth amendment is alien to Nigerian legal system but has some similarities in concept. For instance it can be easily attributed to the rule of double jeopardy which prohibits the punishment of a person for the same offence of which he has been previously punished. 

Also another similarity can be slightly attached to the foreseen circumstance of an accused refusing to take a plea of 'guilty' or 'not guilty'. However an inquiry would be made to determine the reason for the accused's refusal to take a plea in court. This is not a right but rather an understandable situation. 

In the US, it can be said that a way of reminding a person of his right to the fifth amendment is the reciting of the Miranda right (you have the right to remain silent, anything you say can be used against you in court) to such a person while being arrested and taken into custody before interrogation.  

The closest similarity of the US fifth amendment to a concept in the Nigerian legal practice is the concept of Judge's Rule. These rules were first formulated in 1912 by the justices of the Queen's Bench Division of High Court of England for guidance of the Police were revised in 1964.  These rules are aimed at ensuring that the statements made by accused persons are voluntary. 
The rules are rules of administrative practice and not rules of law. Therefore a breach of the rules will not render an otherwise voluntary confessional statement inadmissible. See R v. Melani ; Abubakar v. State 

Tuesday, 20 September 2016

If you’re looking to register your trademark in Nigeria, here are some things you’ll need to know:

1. Be unique- When coming up with a name for your trademark, make sure it won’t conflict with any other existing trademarked names. As a precaution, come up with 3 to 6 names in case any of them are rejected. Be creative. Besides being a similarly registered mark, other grounds for rejection of a trademark are: - Descriptiveness - Deceptiveness - Interferes with public policy - Immorality

2. Fulfill all the necessary requirements:

a. Applicant’s details - Full name(s), nationality, and physical address of the applicant, passport photos (2), company or individual registering trademark, class of goods to be registered

b. All pertinent trademark information - All information must be clear and distinct. If you’re filing your application online, provide a representation of the logo in jpeg format (120px x 100px, 1200 dpi) A trademark may be registered either in plain black and white or in colour. Trademarks in colour are only afforded protection limited to the colour registered. However, trademarks in black and white are offered protection to all colours of representation of the trademark. On occasion, the Registrar may ask that in order for a trademark be deemed acceptable, word marks that are Common English words be registered in combination with devices or logos.

c. Goods - A list of all goods covered or proposed to be covered by the trademark. Provide a separate application for each classification of goods for which the trademark will be registered.

d. Power of Attorney or Authorization of Agent - The attorney/agent will be the person responsible for processing all documents, defending oppositions if there are any, providing an address for the local servicing of documents, and maintaining renewals of all trademarks. Power of Attorney must be signed with full particulars of the applicant (Name, address, nationality), and capacity of the signatory if the applicant is a firm/company. (Find attorneys in Nigeria) A local agent/attorney may be replaced in favour of a new one by submitting another Power of Attorney/Authorization form.

3. File and process all applications at the Nigerian Registry of Trade Marks, Patents, Designs, and Copyright through the local attorney/agent. The cost of filing your application should anywhere between N80,000 to N100,00.

4. After the application is filed, the Registrar will issue an official acknowledgement reflecting the official number and the filing date of application. Afterwards, a preliminary search will be conducted to determine the trademark’s eligibility. All trademark applications must be included in the Nigerian Trademark Journal, after which it is open for opposition for a period of two (2) month from date of advertisement. If no oppositions are received within that period, and the Registrar finds the trademark acceptable and is cleared for registration, the applicant will be furnished with a certificate of registration. The registration certificate will reflect the date of initial filing as its date of registration. The certificate will be valid for seven (7) years and will be renewable for a periods of fourteen (14) years. Renewal should be made not less than three (3) months from due date.

It’s important to note that your trademark may be removed by the trademark office due to any of the following circumstances:

a. If your trademark has not been used or was registered without any intention of use.

b. If your trademark has not been used for a continuous period of at least five (5) years from the date of registration.

c. If the trademark has been made in the registrar without sufficient cause.

d. If the trademark remains wrongly on the register.

e. For non-compliance of the registered proprietor to the registrar’s statutory notice.

5. Trademarks can also be filed online through local IP agents, but only for corporate firm registrations. 

Source :

Friday, 26 August 2016

By Eric Rotgak Goler, ESQ 

At the close of the Nigerian Bar Association Annual General Conference today, in Portharcourt,  the garden city, the Augustine Alegeh, SAN led executive shall give way to what we now call ' A Brave New Bar' which had been the campaign slogan of the in-coming President the very respected A B Mahmoud. This has been made possible by the FCT High Court which refused a motion for restraining order against such inauguration. 

While there may be pending controversy over the July 30 and 31st election of the NBA, the coast is now clear for Mr. Mahmoud to ascend the throne and carry out the much needed reforms in our association. One which readily comes to mind is the present reputation of our legal profession which has been in the gutters lately. The new bar has to be a lot different, lawyers have recently been involved in practices which have not only been disgraceful to the profession but even the judiciary. A situation where cases bothering on the same facts and same parties are being filed at different courts of coordinate jurisdiction is just appalling. Lawyers, senior lawyers at that who are involved in this kind of practice must be queried. 

As ministers in the temple of justice, it lies on our shoulder the onus to protect our democracy which has been put on trial recently. Our duty is to protect the Nigerian people from the antics of the unscrupulous political class which has devised multiple means of destroying this democracy. The Bar must be brave, to speak out when necessary damning the consequences. The Bar must also be brave to punish its members who stray from the age long tenets of our profession no matter their status, and that is what I call bravery. 

With a consummate professional like Mahmoud, and a very disciplined fellow in his own right, 'A Brave New Bar' is possible. Welcome to a new dawn. 

Eric Rotgak Goler is a legal practitioner in attendance at the 56th Annual General Conference of the Nigerian Bar Association in Portharcourt.

Thursday, 18 August 2016

Femi Falana

Last week, Honourable Yakubu Dogara, the Speaker of the House of Representatives arrogantly maintained that he would not subject himself to the investigation being conducted by both the Nigeria Police Force and the Economic and Financial Crimes Commission (EFCC). As far as he is concerned, he enjoys immunity under the provisions of the Legislative Houses Powers and Privileges Act. The embattled Speaker also claimed that the padding of the 2016 is not a criminal offence. Honourable Dogara’s confidence is likely to have been anchored on the statement credited to the Presidency that the budget was not padded in any material particular.

Before then the All Progressives Congress (APC) had decided to follow the discredited path of the Peoples Democratic Party by treating the serious allegation of monumental corruption as a “family affair” of the ruling party. But unlike the PDP the party failed to act timeously. In other words, a cover up is no longer possible at this stage as the cat has been let out of the bag. For now, Honourable Dogara has no choice but to defend the criminal allegations. Contrary to his misleading contention, the Legislative Houses Powers and Privileges Act has not conferred immunity on him with respect to allegations of criminal offences. Since the immunity conferred by the Act is limited to contributions to debates by members of the national assembly the Speaker cannot ward off the invitation of the Police and the EFCC to react to the criminal allegations leveled against him by Honourable Abdulmumin Jibril.

The Speaker ensured that Honourable Jibril was removed as the Chairman of the Appropriation Committee of the House when it was confirmed by the House that he had allocated projects worth N4 billion to his constituency. The House kicked against Jibril on the ground that the remaining 359 members have been left to share the remaining N36 billion out of N40 billion. While not denying the allegation Honourable Jibril disclosed that the Speaker and some principal officers had unilaterally inserted 2,000 items, otherwise called constituency budgets in the budget. He has also accused the Speaker of corrupt enrichment through the acquisition of farms and other properties. Although the Speaker has failed to deny the serious allegations he has threatened to sue Honourable Jibril for defaming him.

It would be recalled that the initial budget was withdrawn by President Buhari when the national assembly members accused some top civil servants of padding the 2016 budget. It was so scandalous that the federal government undertook to sanction the public officers who had altered the budget. At that juncture, the President promptly removed the illegal insertions and re-present the corrected budget to both chambers of the parliament. Thereafter, the budget was debated and passed and sent to the President for his assent. It was signed into law by President Buhari when he believed that it had been properly passed by the members of the national assembly.

But it has now emerged that about 20 legislators in both chambers of the national assembly altered the budget by inserting constituency projects worth N100 billion in the Appropriation Bill. Both the senate and the House allocated to themselves N60 billion and N40 billion respectively. If it is established that the alterations were effected after the passing of the budget by both houses the issue at hand goes beyond padding. A clear case of conspiracy, fraud, forgery and corruption can be established against the suspects.

Padding takes place when legislators resolve to rewrite the budget by introducing new items outside the estimates prepared and presented to them by the President. The controversy over the padding of budget was laid to rest with the enactment of the Fiscal Responsibility Act, 2007 which has imposed a duty on the finance minister to source input from certain institutions including the national assembly during the course of preparing the budget. That is when negotiations and horse trading with the executive by the legislators is allowed. But neither the Constitution nor the Fiscal Responsibility Act has empowered the National assembly members to rewrite the national budget by including constituency projects whose costs are arbitrarily fixed by the legislators.

Under section 81 of the Constitution the President is given the exclusive power to cause the budget to be prepared. Upon the preparation of the budget by the executive it shall be laid or presented to the National Assembly by the President. In debating the Appropriation Bill, the legislators may reduce the estimates if there are errors or inflation of the cost of items or if certain items provided for has been purchased before or for any other genuine reasons. But the national assembly cannot increase the budget in any manner whatsoever. So, the unilateral introduction of constituency projects is totally illegal and unconstitutional.

By introducing new items the national assembly has usurped the powers of the President to prepare the budget. In other words, the legislators would have prepared the budget and laid it before themselves and then passed it. That is a negation of the doctrine of separation of powers. The Appropriation bill or amended Appropriation bill is not like other bills. Whereas other bills shall emanate from either of the two houses money bills shall emanate from the President. So a money bill is a special bill which cannot be subjected to additions by the national assembly because it has no power to prepare it.

Padding is an unconstitutional infraction when the estimates are increased on the floor of the House. The infraction becomes criminal when the Appropriation Bill is altered by a few legislators after it had been passed by both houses of the national assembly. In the instant case, Honourable Jibril is alleged to have altered the budget by inserting projects worth N4 billion while a handful of other legislators led by the Speaker are alleged to have included 2,000 items in the budget. Since the President was then misled to sign it as the Appropriation Bill properly passed by both houses the principal officers of the national assembly cannot turn round to seek protection under the Legislative Houses Powers and Privileges Act.

It is unfortunate that Honourable Dogara has never heard of the word “padding” before now. It is not new in our legislative history. While the 2005 Appropriation Bill was under consideration in the senate some senators including the senate President padded the budget of a ministry after collecting N55 million bribe from a minister. The scandal led to the removal of the senate president who was later charged with his indicted colleagues and the minister. The Supreme Court has recently ordered that the suspects be tried for corruption having thrown out the preliminary objections filed against the charges by them at the trial court.

If legislators conspire with themselves to pad the budget to fund the purchase of exotic cars and payment of unauthorised jumbo emoluments it is a criminal offence. The allegations of Honourable Jibril have gone beyond the padding of the budget. The serious issue which the Speaker and other principal officers have not addressed is that the alterations of the budget took place outside the plenary session of the house. This is the crux of the matter. A former senator was arrested recently and the EFCC stumbled on a document which set out how N60 billion was shared among some legislators. The EFCC should investigate the source of the fund. Where did the fund come from? Jibril’s complaint should provide the country a golden opportunity to get to the root of criminality in the national assembly.

Regardless of the interference of the ruling party and the denial of the allegation of the padding of the 2016 budget by the Presidency the Police and the EFCC should proceed with the investigation of the allegations of Honourable Jibril against the leadership of the House and the counter allegations of his colleagues against him. Up till now, the N115 billion budget of the national assembly in the 2016 budget has been shrouded in secrecy. The ongoing investigation should reveal the details of the budget.

Mr Femi Falana, Senior Advocate of Nigeria, SAN, is a lawyer and human rights activist who lives in Lagos.

Friday, 17 June 2016

By Abdulrazaq Magaji
< 234-805-138-0793>
From the quantum of high and not-so-high endorsements he has received so far, it is almost certain that Chief Joe-Kyari Gadzama is only waiting to be crowned the next president of the Nigerian Bar Association, NBA, next month. Within the learned circle of lawyers, the reasoning is that if he could affect the legal profession so positively in his private capacity, Chief J-K Gadzama could be trusted to use the structures of the NBA to do more. The optimism is well-placed.
Arewa Lawyers Forum, ALF. When it took the decision last March, ALF said it was swayed Chief J-K Gadzama’s First to come was a critical endorsement from his base, the antecedents as a lawyer who has worked assiduously to push the frontier of the NBA and his efforts in improving the lot of NBA members. On June 14, the ALF sent a formal letter to that effect to regional NBA fora to notify them of the decision. Insiders say the endorsement flowed from the belief that, with NBA structure, Chief J-K Gadzama could do more for many more for an even greater number of young and not-so-young lawyers.
Similar reasons were cited in endorsing Chief J-K Gadzama by individuals and regional law bodies. Hear Aare Afe Babalola, SAN, eminent jurist, statesman, and founder/chancellor of Afe Babalola University, Ado Ekiti: “ Of all the SAN’s around, none is better qualified to lead the NBA especially at this critical point in time than Chief J-K Gadzama. He has displayed the capacity and commitment to lead. Law is all he knows; he lives it and dreams it. Chief J-K Gadzama is committed to the profession and we trust his presidency will be the beginning of greater things within the NBA family.’’ Aare Babalola’s endorsement came hot in the heels of similar ones by individuals and regional lawyers fora.
Take Adegboyega Solomon Awomolo and Bandele Aiku, both Senior Advocates of Nigeria and like Aare Babalola, prominent members of Egbe Amofin Oodua, a major affiliate of the South West Lawyers Forum. Both legal luminaries were emphatic in their endorsement which they hinged on the belief that the NBA will provide Chief J-K Gadzama with necessary structures to do even more to advance the course of the profession.
At its recent meeting in Abeokuta, Ogun state, and the one preceding it in Ile Ife, Osun state, the South West Lawyers Forum literally rose in unison to pledge their support for the presidential bid of J-K Gadzama. The endorsement by the SWLF, though informal, was predicated on several innovations by the law firm of Chief J-K Gadzama to help lawyers, especially young ones, to hone their skills which several members from the zone say they have benefited from.
It is not for fun that the Otu Oka-Iwu of the South East Lawyers Forum, SELF, refers to J-K Gadzama as ‘friend and ally of Ndigbo’. He is so recognised for the opportunity he gave to numerous young lawyers of Igbo extraction who cut their teeth under his tutelage. Indeed, it takes a detribalized Nigerian in the mould of Chief J-K Gadzama to name an important mentorship programme after Justice Chukwudifu Oputa! Long before he was so recognised by Otu Oka-Owu, Ndigbo had, in 2003, honoured him as Okwulora of Ukpo for being ‘’an authentic and reliable mouthpiece of the people.’’
For the best part of the thirty years he has spent on the bar, Chief J-K Gadzama has carved a niche for himself as a lawyer who has committed himself to the development of the legal profession. With state-of-the-art facilities and a purpose-built moot court for lawyers to practice before they attend court sessions, his ultramodern head office in Abuja has some of the best infrastructure for law practice in Nigeria and compares favourably with some of the best law firms around the world. Little wonder Chief J-K Gadzama was last year listed among the top five hundred lawyers in the world.
J-K Gadzama LLP has one of the largest pool of lawyers in its employment: at present, there are fifty out of which forty are juniors. The firm regularly takes in dozens of youth corps members and, on an annual basis accepts a sizeable number of students from the Nigerian Law School on law office attachment. J-K Gadzama Annual Lectures, already in its ninth year is one big informal training ground for lawyers considering the wealth of ideas exchanged at the sessions. Equally important is the prestigious J-K Gadzama Award for best graduating student which he instituted at his alma mater, University of Maiduguri and the Nigerian law School.
Other innovations that endeared Chief J-K Gadzama to the heart of people within and outside the legal profession is the Honourable Justice Chukwudifu Oputa Mentorship Scheme, a quarterly training and mentorship programme coordinated by Dr. Tahir Mamman, immediate past director general of the Nigerian Law School and senior partner at J-K Gadzama LLP. The Justice Oputa mentorship training session, a quarterly training session aimed at honing the skills of young lawyers debuted last April. It is hardly surprising that these and more formed the basis for the endorsements that keep coming the way of Chief J-K Gadzama.
.Growing up in the late 60’s and early 70’s, Chief Joe-Kyari Gadzama followed the mind of his friends and wanted to pursue a career in the military. In fact, teachers and classmates from that era grew up believing it was a done deal that young Gadzama would one day end up as a General in the Nigerian Army. To friends from that that era, gaining admission into the Nigerian Military School, Zaria, in 1975 was like a dream come true.
But this was five years after a better-forgotten civil war. It was also the year of Nigeria’s third military coup, this time a bloodless one that brought late General Murtala Ramat Muhammad to power. But young Gadzama’s mother, like all loving mothers, would have none of this as she was not going to sign away another family member. The elder Gadzama was at the time a high-ranking police officer. His mother had her way
Chief Joe-Kyari Gadzama has turned full circle. Today, he is a General of sort, being the deserving recipient of the prestigious Senior Advocate of Nigeria, SAN, at age 37, one of the youngest to be so honoured in 1998. And like any battle-tested General, he is in full control of an equally battle-tested battalion of lawyers at his command post, the octopoid  J-K Gadzama LLP in Garki11 district of Abuja. He holds two national awards:  Officer of the Order of the Federal Republic, OFR, and Member of the order of the Federal Republic, MFR. He is the Sardauna of Uba in Borno state.
Born Tuesday, November 28, 1961 in Mubi, in present day Adamawa state, Chief J-K Gadzama hails from Lassa in Borno state. He was educated in Kaduna, Song and Maiduguri where he took a Second Class Upper division degree in law at the University of Maiduguri in 1985 emerging, in the process, as the best graduating student in Common Law. Chief J-K Gadzama was the first of the nearly 1700 lawyers in the 1986 class of the Nigerian Law School to become a Senior Advocate of Nigeria, SAN, in addition to being the pioneer Chairman of the class.
 In 2006, Chief Gadzama took a post graduate diploma in International Commercial Arbitration from the Keble College of the Oxford University in the United Kingdom after which he was admitted into Lincoln’s Inn. In 2013 and, in recognition of his arbitration and dispute resolution skills, Chief J-K Gadzama was named as a member of a high-powered committee set up by the Federal Government to investigate and proffer solutions to the insurgency in north eastern Nigeria. Today, the Sardaunan Uba maintains law chambers in the United States of America and the United Kingdom where he practices law.
Outside his native Lassa, J-K Gadzama’s is a big voice in north eastern Nigeria where he regularly executes people-friendly projects. And the gesture is not lost on appreciating members of the communities who, in appreciation, have continued to recognise him. In December 2007, he was the sole recipient of the Southern Borno Community Merit Award for meritorious service to community and the fatherland.
J-K Gadzama has every reason to expect a positive outing next month. Over the years, he has proved to be one Nigerian who is passionate about the Nigerian project and continues to do his bit in its actualisation. And some of his suggestions to drive the Nigerian project, just as his antidote to the high cost of governance, are as revolutionary as they are realistic. First, he believes Nigeria must get it right through enthroning the ideals of free, fair and transparent elections.
Again, Chief J-K Gadzama believes the nation has no business with the needless religious and ethnic strife. Thirdly, corruption should have no place in the land as it shades competence. What is more, Chief J-K Gadzama believes the nation will achieve quality legislation at low cost if legislative duties and remunerations are on part-time basis or, as is the practice in some emerging democracies, for legislative seats to be reserved for professionals. This, Chief J-K Gadzama believes, will enrich the legislative process and deepen the nation’s democracy.
These and more are possible but it will take a proactive national leadership of the NBA to push them through. The success story of J-K Gadzama LLP attests to the fact that this, precisely, is the kind of leadership that J-K Gadzama will provide when he executes the presidency of the NBA. Besides, the NBA presidency will be a welcome feather to a colourful cap! The individuals and groups that endorsed J-K Gadzama cannot be wrong.
Nigerian lawyers cannot be wrong!
Magaji <> is based in Abuja, Nigeria

Sunday, 17 April 2016

Prof. Itse Sagay



Prof. Itse Sagay, SAN.

In this summary, I make comment on the important issues raised by the Supreme Court in that case.

1.​ On Card Reader

The Supreme Court, in rejecting the use of the Card Reader adopted its earlier views on the matter in Okerekev. Umahi S.C. 1004/2015, that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register “whose judicial roots are firmly embedded or entrenched in the self same Electoral Act from which it (Voters’ Register) directly derives its sustenance and currency” – per Nweze, JSC.  

The question may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register.  After verification by the Card Reader, the voter’s name still has to be identified in the voters’ Register and ticked before he can vote.  It must be noted that both the Tribunal and Court of Appeal emphasized that, the Card Reader was intended to and did strengthen the application and efficacy of the Electoral Act, by ensuring a credible election for the benefit of Nigerians.  The Election Tribunal stated expressly that “the usage of the Card Reader was complimentary to the usage of the voters’ register.  In other words, the two work hand in hand towards ensuring credible elections.  The voters’ Registers properly come to play where a prospective voter has been screened by the Card Reader.  The sum total of the role of the Card Reader is that it is complimentary to the usage of the Voters’ Register.”

So where in all this did Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader?  Absolutely nowhere.  What Nweze, JSC, had simply done was to give the Card Reader a bad name in order to subject it to judicial execution. Has the Card Reader eliminated the voters’ Register? No! Has it brought integrity and transparency to the voters’ Register and the whole electoral process? Yes!

All the Card Reader does is to act as a gate man for the voters’ Register.  There was no dethronement and deposition here.  There was only a step forward towards free, fair and credible elections – a procedure for sanitizing our elections and for eliminating fraud, dishonesty and rigging from our electoral process.  Should any Supreme Court anywhere in the world resist and reject such a beneficial development in the electoral process? No!

The law as stated in Section 49 has not in any way been altered by the Card Reader.  After being accredited through the Card Reader the voter still has to have his name checked in the Voters’ Register, and to have it ticked before voting.

Without the process of identification and recording by the Card Reader, the old system of free ticking of all names in the Voters’ Register followed by thumb imprinting in thousands to match the number ticked will continue and our elections will simply be fraud writ large.

So all this talk of superseding and dethroning, has no bearing whatsoever on Section 49 of the Electoral Act 2010.  There is no provision of the Electoral Act banning or prohibiting the use of Card Readers.  It is wrong of any one to assert that the use of Card Readers is electronic voting.  It shows that such a person cannot distinguish between accreditation and voting.

Section 15 of the Electoral Act clearly empowers the INEC to issue Regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and its Administration thereof.  Introduction of Card Readers is doing exactly that.  By law, the guidelines thus issued are as potent as the permitting law, i.e., the Electoral Act itself.

Ultimately, on the Card Reader issue, the only valid questions a Court of Justice ought to raise are as follows:

(i)​Was the voters’ Register instituted in the Electoral Act to promote and ensure free, fair and credible elections?

(ii)​If this is so (and it necessarily must have been so) did the introduction of the Card Reader enhance the capacity of the Voters’ Register to produce clean, fair and credible elections?

(iii)​As all the Courts, even the Supreme Court, haveadmitted, the Card Reader has sanitized and brought transparency and integrity to the election accreditation process.  The sum total of the usage of the Card Reader therefore is that it is complimentary to the work of the Voters’ register.  “The two work hand in hand to ensure a credible election” – (The Tribunal)

It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ Register to ensure or guarantee, free, fair, credible and transparent elections, the Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the Voters’ Register as Nweze, JSC, wrongly asserted in Okereke v. Umahi. Helping and enhancing the Voters’ Register’s capacity and efficiency cannot be classified as ‘dethroning’ or ‘deposing’ it.  It is still there as the ultimate source after the clean up of the process by the Card Reader.  The Voters’ Register could only be regarded as having been dethroned and deposed if its purpose in the Electoral Act was to promote fraud, rigging and massive irregularities.  In other words, it is only when its role and purpose is in conflict with that of the Card Reader, that it can be said to have been dethroned and deposed by the Card Reader,  because the two would then be working at cross-purposes with each other.  But in the circumstances of this case, they were working together towards a common positive objective.

It is really incredible that the Supreme Court threw in the towel to the existing and debilitating culture of election fraud, violence and rigging, when the Law and Justice were pointing in the opposite direction.

Apart from all the above, the Electoral (Amendment) Act, 2015 specifically empowers the INEC to introduce innovations like Card Readers to promote the credibility and sanctity of an election.  By Section 52 of the Act, “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission.” This gives INEC separate and extra powers to introduce processes into the election process in order to enhance its accuracy, transparency and credibility.

Supreme Court judges during a court session

2.​ Substantial Non-compliance

The Supreme Court also asserts wrongly that in order for an election to be nullified, the Petitioner has to establish that not only (i)  was there a substantial non-compliance with the Electoral Act, but additionally  (ii) the Petitioner must show that the substantial non-compliance affected the result of the election.  This is wrong.

By Section 139(1) of the Electoral Act, 2010, 

“An election shall not be liable to be invalidated by reason of non-compliance with this Act if it appears to the Electoral Tribunal or Court that the election

(i) was conducted substantially in accordance with the principles of this Act and (ii) that the non-compliance did not affect substantially the result of the election:

It is clear that the provision on substantial compliance in section 146 of the Electoral Act, 2006, is conjunctive in nature.  For an election not to be invalidated, (i) it must comply substantially with the provisions of the Act and (ii) non-compliance, (whether substantial or insubstantial) must not affect substantially, the result of the elections.

In other words, any election has to clear two hurdles in order to be valid; (i) it must comply substantially with the provisions of the Act; (ii) where there was any non-compliance, no matter how insignificant, it must not have substantial effect on the result.

Therefore a petitioner will succeed if he can establish either of the following:

(a)​Substantial non-compliance with the Act, only


(b)​substantial effect on the result by any degree of non-compliance, no matter how trivial.

I repeat, the petitioner need only establish one of these two situations in order for the election to be invalid, namely

1.​Substantial non compliance with the electoral Act including the schedules and regulations.


2.​ Substantial effect on the election result of any infraction of the Electoral Act, schedules, regulations etc no matter how trivial the infraction.

Therefore, Kekere-Ekun, JSC, was absolutely wrong when she stated at page 67 of her judgment that in addition to establishing substantial non-compliance, the Petitioners were also obliged to also establish that the non-compliance also affected the result of the election. This is an error that some Justices of the Supreme Court have been repeating again and again inspite of corrections that have been offered several times. 

The authority on this issue is Morgan v. Simpson [1974] 3 All ER 722.  This is what Lord Denning said in Morgan v. Simpson:

“(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day, and 5,000 out of 41,000 voters were unable to vote. 

Thus once there is substantial non-compliance, the election is invalid Cadit Quaestio!  There is NEVER any further enquiry whether or not the non-compliance affected the result of the election.  It is only when the non-compliance is not substantial, that its impact on the election is considered.  

Governor Nyesom Wike benefitted from Supreme Court’s judgment

3.​ Polling Unit to Polling Unit

Thirdly, the Supreme Court wrongly asserts that to establish non-compliance, the Petitioner has to provide evidence from polling unit to polling unit throughout the State.

Again this is incorrect. 

In Hackney Case, Gill v. Reed and Holmes (1874) 2 O’M & H 77, 31 Lt 69, a leading English case, it was shown that only two out of 19 polling stations (units) were closed on election day and 5,000 out of 19,000 were unable to vote.  The election was invalidated for substantial non-compliance with the relevant election law.

Can an election that was marked by killing, extensive blood shed, intimidation, mayhem and chaos require a meticulous examination of polling unit after polling unit, to establish non-compliance?  No.  The elections were canceled by outright violence involving, killings, election materials seizure and intimidation of voters as was overwhelming established at the tribunal.  Where there was effectively no election, it is futile going from polling unit to polling unit, looking for what never existed in the first place.

In Buhari v. Obasanjo [2005] 2 NWLR (Pt. 910) 241 at pp. 520 – 522) Nsofor, JCA, nullified the whole presidential election based on events In 7 States out of 36 States.  

Clearly a petitioner does not need to establish substantial non-compliance in all aspects of the election or in allplaces in which election was held.  It is not the individual (polling unit by polling unit) that matters.  It is the impact of the totality of allegations, the trend they establish and the totality of the perception they create.

4.​ Presumption of Validity

The Supreme Court also stated that there is a presumption of validity in favour of  INEC declared results and the Onus is on the petitioner to prove that the declared outcome is wrong.  This is not always the case.  Where the Petitioner’s case is that there was no election, the onus is on the Respondent who asserts the positive, i.e., that there was an election.

The Court of Appeal, Benin Judicial Division put it brilliantly in this passage from the judgment of Dongban-Mensen, JCS, in Ogboru v. Uduaghan [2011] 2 NWLR (Pt. 1232) 538.

“In Imana v. Robinson (supra), Aniagolu JSC delivering the unanimous judgment of the Supreme Court, approvingly adopted the exposition in Phipsonon Evidence (supra) as the Nigerian law on the subject:

“The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue.  It is an ancient rule founded on consideration of good sense, and it should not be departed from without strong reasons’.   It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever.  If, when all the evidence, by whosoever introduced, it is in, the party who has this burden has not discharged it, the decision must be against him.

 We have no reason whatsoever for departing from this eloquent exposition of the law.  In our view, that is a correct restatement of the consistent posture of the Supreme Court on this question, see, Elemo & Ors v. Omolade & Ors (1968) NMLR 359; Atane v. Amu (1974) 10 SC 237; Fashanu v. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. V. Daewoo Nig. Ltd.(1985) 2 NWLR (Pt. 5) 116, etc. There is no gainsaying in the fact that we are bound by these illuminating decisions of the apex court.  Hence, we are under obligation to ignore any other decision, including decisions of this Court, which, to employ the apt expression of the Supreme Court, fail “to distinguish [between] the two distinct and frequently confused meanings which have always been attached to the words ‘burden of proof’”, see, Elemo & Ors v. Omolade & Ors (supra) at 361.  Unarguably, any contrary decision of any other court on these two distinct meanings of the expression “burden of proof” could be, justifiably, classified as a decision reached per incuriam.

It is from this perspective, therefore, that we are endorsing the submissions of the counsel for the appellants.  We, entirely agree with him that having regard to the above negative averments which the appellants made in their pleadings that no elections known to law were conducted on April 14, 2007, the respondents, who positively asserted that elections were duly conducted, had the burden of proof on the pleadings to plead the constitutive activities that define an election, namely, accreditations, Ajadi v. Ajibola (2004) 1 LRECN 255, 355 – 356 ETC.  In this regard, they had the burden to plead Form EC25, a form which shows that result sheets were issued; Form EC40C, a form which shows that the said result sheets were distributed before the results in EC8A were recorded; Amgbare v. Slyva (supra) 60-63; voters’ register, Nweke v. Ejims (1999) 2 LRECN 84, 99;  Nwakanma v. Abaribe (2010) All FWLR (Pt. 505) 1767, 1880; Form EC8A which is the primary evidence of votes cast in the election; the foundation or base on which the pyramid of the election process is built” 

Clearly since the case of Peterside and the APC was that due to the violence, carnage and war conditions on 11thand 12th April 2015, there were no governorship elections known to law, the onus fell on Wike and the PDP to establish  that there were valid elections on those dates.  Not only did the Supreme Court overlook  the law in this regard, but Kekere-Ekun, JSC, went so far as to say that even if Wike and the PDP had confessed that there had been no election, it would have made no difference.  This is simply unbelievable.

 5. ​Proof Beyond Reasonable Doubt

The insistence that in a civil case, which is what an election petition is, the petitioner must prove his case beyond reasonable doubt if the commission of a crime is involved, is wrong.  If the killer, or maimer or character engaged in violence during an election is actually on trial, then proof of his offence, which may send him to prison, must be beyond reasonable doubt.

However, if all that the Petitioner is claiming is that elections were frustrated by wide spread violence, he does not need to prove the commission of any offence beyond reasonable doubt since no one is on trial.  

The question of the applicability of “proof beyond reasonable doubt” had long been laid to rest by Obaseki, LSC. In Onoh v. Nwobodo, (Reported in [2004] 10 WRN 27 at 108) when he held that:

“the commission of a crime by a party to this proceeding is not directly in issue and the petitioner is not required in law to discharge the burden of proving the crime or offence of falsification against any party to the proceeding.  The standard of proof required of the petitioner in these proceedings to succeed is the balance of probabilities..” (Emphasis added)

[2004] 10 WRN at pp. 131-2

 For this, Obaseki, JSC, relied on Benson Ikoku v. Enoch Oil [1962] 1 All NLR 194 at 199, where Unsworth F.J. held as follows:

“The provisions of section 137(1) were considered by this court in the case of Sunday E. Oso v. Chief Festus Okotie Eboh unreported suit (FSC. 407/1959) where we held that the issue of a crime must arise on the pleadings.  We have not, however, previously considered the scope of the subsection.  In my view, the subsection only applies where there is a specific allegation of a crime in the pleadings so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence as the case may be.  For example, the subsection would apply where a defendant in an action for libel pleaded justification of an allegation that the plaintiff committed a criminal offence or where a petitioner sought divorce under the Matrimonial Causes Act, on the grounds of rape, sodomy or bestiality.  In the present case, the matter directly in issue is not whether a crime has been committed but whether the prosecution was without reasonable and probable cause and malicious ….”  Thus where no one is on trial, the issue of proof beyond reasonable doubt should not arise.  In any case, the nature of the evidence in the Rivers State governorship case was such that its level was definitely beyond reasonable doubt.

6.​ Some Matters of Significance

It is of great significance that the elections into 23 Seats out of 31 in the Rivers State House of Assembly were nullified by both the Legislative Houses Election Tribunal and the Court of Appeal.  Those nullified “elections” were conducted in the same polling units, by the same INEC Officials on the same day (11th April 2015) and at the same time as the Governorship election.  They were all voided for reasons of violence, mayhem, killings, chaos, ballot snatching, intimidation, gross violations of the Electoral Law, Massive irregularities, etc.  They ‘Voters’, polling units, Election Officials and all other factors and personnel were exactly the same as those that applied to the governorship election.   Yet going by the implications of the Supreme Court decision, the election was perfect with regard to balloting in the governor’s case, but massively irregular when it came to the House of Assembly balloting – same polling unit, same voters, same INEC Officials, same date, same time!

Only the Supreme Court was able to salvage a valid governorship election from the ruins surrounding all the other elections at the same polling units, at the same time, at the same date, by the same people involved in the House of Assembly elections. 

It is also significant that all the elections to the Senate (3 Seats) and all of the House of Representative (6 seats) from Rivers State, this time held on 28 March, 2015 were nullified for the same reasons as the House of Assembly elections were nullified by the Tribunal and the Court of Appeal.

And so we have the following situation: elections to 23 House of Assembly seats were nullified by Legislative Houses Tribunal and the Court of Appeal.  All elections to the Senate and House of Representatives were nullified by the Tribunal and the Court of Appeal.  The governorship election was nullified by the Tribunal and the Court of Appeal.

In the midst of all this, the Supreme Court snatched the governorship election from the devastation and massive irregularities upheld on all other elections held at the same time, on the same day, at the same venues, by the same officials.  How could the governorship election smell like fresh roses, whilst all other elections conducted together with it, smell like sewage and refuse? This is a puzzle that will never be resolved.

In addition to the above, when re-run elections were to be held to fill the Senate, House of Representatives and House of Assembly seats in Rivers State on 19 March, 2016, the Federal Government flooded the State with Soldiers, well-armed Policemen and DSS operatives.  The Police alone constituted 6000 men.  This was intended to discourage and deter the private armies of Rivers State from frustrating the holding of the elections.

What happened?  Days before the election and in total disregard of the Federal Armed Forces brought in to enforce peace and establish stability, the Rivers State private army emerged again, commenced killing, not only innocent civilians, but even army and police officers brought in to enforce peace.  They not only neutralized the Federal armed forces, but caused so much violence, mayhem and disorder and instability that the elections were cancelled in a large number of Constituencies and the INEC has refused to go back to Rivers State to conduct fresh elections until peace and stability can be guaranteed.

If Wike and the Rivers State PDP could plunge the State into so much violence in the presence of such a large Federal Armed Force, it does not take much to imagine the State of affairs in the State for the APC on 11th April 2015, when the Rivers Private Armies had the backing of the Federal Forces at that time.  The combined Forces of Rivers PDP and the Federal Government were in total control, and the PDP simply wrote out any result it wanted and the heavily compromised and partisan Rivers State INEC Resident Electoral Commissioner rubber stamped any result she was given by the PDP.

 What an election? What a war victory?

Thursday, 7 April 2016

Olayinka Aileru

The Administration of Criminal Justice Act 2015 seeks to revolutionise the administration of criminal justice in Nigeria. One of the objectives of the Act, as contained in Section 1, is to ensure speedy trials, and the efficient management of the criminal justice system in the country. The ACJA recognises the defects in our criminal justice system, one of which is the frequent delays which characterised criminal trials. The delays are mostly due in part to the manner in which lawyers often explore the loopholes in the law to frustrate trials usually by filing of frivolous applications and objections in court. The average time a criminal trial proceeding takes prior to the enactment of the Act is four to six years. Also, how much a trial can be delayed depends on the caliber of the lawyers involved, the status of the accused person and the nature of the offence charged.

The most common delay tactic is raising of preliminary objections by challenging the jurisdiction of the trial court, or the validity of charge itself based on some perceived defects (sometimes imaginary and illusory). The trial court will be forced to give a ruling on the objection one way or the other. Upon the ruling of the trial court, an appeal will quickly be filed at the Court of Appeal. Also depending on how smart the lawyer is, this may take another two years. In the meantime a stay of execution would have been granted stopping the continuation of the original proceedings by the trial court. After the judgement of the Court of Appeal on the objection, a subsequent appeal may be lodged at the Supreme Court which may take another two years before it is heard.

All the while that these would be happening, the accused would have been granted bail. Some of the key witnesses might have died or travelled. The investigating police officer, the case officer or the trial judge himself might have been transferred or retired from service. By the time the Supreme Court finally decides that the trial court should hear the case on the merit, the public would have forgotten all about the case, the prosecution would no longer be interested as other high profile cases would have come up in the interval. Lethargy soon sets in and the case would die a natural death.

These and many more are some of the ills that the ACJA 2015 seeks to correct. Of particular importance and relevance in addressing this problem is Section 396 of the ACJA. Section 396 effectively deals with the incessant delays caused by the raising of preliminary objections. The section provides that all preliminary objections are to be raised after the taking of plea by the accused persons. Unlike the old practice, Section 396 (2) provides that argument on a preliminary objection are to be taken along with the substantive issues, and the ruling thereon to be taken at the time of delivering final judgement.

The ordinary effect of this is that unlike before when ruling on a preliminary objection will be delivered immediately, or soon after argument before the consideration of the main issues, such ruling will now be adjourned till after the hearing of the case on the merits, and at the conclusion of trial. This has the implication of speeding up the trial process, because any appeal on the preliminary objection will be taken together with whatever appealable issues that may come up from the substantive issues considered at trial. This will effectively curb the going back and forth which characterised trial proceedings under the old dispensation. Another beauty of Section 396(2) is that the provision is mandatory on a trial court. The operative word is “shall” which imposes an obligation, and not a discretion.

The view is shared in some legal circles that the provision of Section 396(2) of the ACJA infringes on the 1999 Constitution particularly Section 294(1). Section 294(1) of the Constitution provides that every court established by the Constitution shall deliver its judgement within 90 days of final addresses and conclusion of evidence. According to the critics of Section 396 of the ACJA, when a trial court adjourns ruling on a preliminary objection till after the conclusion of the substantive issues, there is the possibility of not delivering the ruling within the 90 days window prescribed by the Constitution, as there is no guarantee that the entire trial proceedings will be concluded within 90 days.

While conceding that the possibility of the trial proceedings extending beyond 90 days is very real, it is submitted that the dangers of breaching the Constitution is at best fictional and illusory. In the first instance it is submitted that the provisions of Section 294(1) of the Constitution only applies to final judgements, and not to preliminary rulings in the course of a trial proceedings. Even if it conceded that Section 294(1) of the Constitution can be given a very wide interpretation to encompass interlocutory rulings, whatever effect that a long adjournment on a preliminary ruling may have on the Constitutional “90 days Rule” is obviated by the Constitution itself in Section 294(5).

Section 294 (5) provides that the decision of a court shall not be set aside on the ground of non-compliance with the 90 days rule prescribed by Section 294(1), unless it is shown that the failure to deliver the judgement within the 90 days occasioned a miscarriage of justice to the party complaining against the non-compliance. The Supreme Court in the case of Akoma v Osenwokwu (2014) 11 NWLR (Pt 1419) held that it is not enough for the party complaining to merely allege miscarriage of justice on appeal, he must show sufficient evidence of the acts of injustice suffered by him by the non-compliance with Section 294(1).  Thus, as long as no injustice is done to an accused person, it will be in order for a trial court to adjourn ruling on a preliminary objection till the time of delivery of final judgement after the conclusion of trial.

Apart from Section 396 of the ACJA, another revolutionary provision is Section 306 which abolished the practice of stay of trial proceedings pending the hearing of appeals on a preliminary point. As stated earlier, ruling on preliminary points or objections are to be taken at the time of delivery of judgement. However, it often happens that some judges who are still fixated on the old procedure deliver ruling on the preliminary objection before proceeding with the trial. This will in effect create an opportunity for appeal. The implication of Section 306 is that the appellate courts no longer have the power to order stay of proceedings at the trial court, pending the hearing of the interlocutory appeal. What this means in essence is that the trial court will be in order to continue with the trial proceedings notwithstanding the appeal filed.

The trial of the Senate President, Dr. Bukola Saraki, at the Code of Conduct Tribunal has offered the best opportunity for the judicial consideration of some of the innovative provisions of the ACJA. Sadly however, the appellate courts, for reasons best known to them, have been reluctant to give full effect to the provisions of the ACJA. Despite the provisions of Section 306 of the ACJA, the Supreme Court granted a stay of proceedings at the CCT pending the hearing of the appeal in which the Senate President challenged the jurisdiction of the CCT. With due respect to the learned justices of the Supreme Court, the decision granting stay of proceedings in the case has no basis under the Administration of Criminal Justice Act. One important point to bear in mind is that the exercise of appellate jurisdiction, including the powers of an appellate court, are statutory in nature, as there is no inherent right of appeal, or power to hear appeal. Thus the exercise of appellate power must always be in accordance with the provisions of the law.

The provision of Section 306 of the ACJA is a novel statutory provision which was enacted to address the mischief of using appeals to stall criminal trials in Nigeria. The provision in essence sought to remove the discretionary powers of Nigerian courts to grant stay of proceedings pending appeals in criminal trials. The inherent danger in the order granted by the Supreme Court is the fact that lower courts in Nigeria will feel bound by the decision based on the principle of stare decisis. This in essence will have the implication of rendering nugatory the efforts of the National Assembly in enacting Section 306 of the ACJA. It is thus hoped that the Supreme Court will in the not too distant future have another opportunity of giving proper effect to the provisions of Section 306 of the ACJA.

Aileru Olayinka is a legal practitioner, he writes from Lagos.

Monday, 14 December 2015


By Kehinde Adegbite, Esq

The Nigerian criminal justice system is set in motion the moment a crime is committed. Once this happens, arrest is made, investigation commenced and prosecution of whoever is responsible for the violation of the criminal law may ensue. The Nigerian law presumes the offender to be innocent until the prosecution (i.e. the State) is able to prove the case against him beyond reasonable doubt. The State fails in its duty, if an ingredient of a crime is not proved to the satisfaction of the court. For example, in a case of fraudulent conversion of public funds, one of the ingredients of the offence which must be established is that the funds allegedly converted are public funds. It must be pointed out that this process of proving a criminal case beyond reasonable doubt, more often than not, paves way for many accused persons to escape being punished; even though, they might have committed the alleged offences in actual fact. Even if a criminal case is proved to the standard required by law i.e. beyond reasonable doubt, considerable time and expenses would have been invested. These are some of the reasons behind the invention of a concept known as plea bargaining, even from the place of its origin.

Plea bargaining is a negotiation which takes place between an accused person and the prosecution where the former pleads guilty to some of the offences which he is charged (usually lesser offences), while the latter agrees in turn to drop one or more of the other offences with which the accused person is charged; or the accused person may plead guilty to one or more offences in return for the prosecution conceding to a milder penalty. In a similar tone, the Black’s Law Dictionary, 9th Edition (2009), defines it thus,
“A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor usually, a more lenient sentence or a dismissal of the other charges.’’

One obvious inference from the meaning of the concept of plea bargaining in relation to the underlying philosophy of the Nigerian criminal jurisprudence is that once an accused person accedes to the use of plea bargaining, his right to presumption of innocence and the corresponding duty of the prosecution to prove its case beyond reasonable doubt abate. A guilty plea would be entered and a pre-negotiated penalty follows. Again, any person convicted in this circumstance cannot appeal, unless fraud can be proved or there is a fundamental breach of his rights, just like a consent judgment in a civil case.
Plea bargaining is a creation of the American criminal justice system which has in recent years gained some endorsement in Nigeria. It is said that an average criminal case in America is disposed off through the use of plea bargaining. In Santobello v. New York (1971) 404 U.S 257, 260 [92 S. Ct. 495, 498, the US Supreme Court held,
“The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining’, is an essential component of the administration of justice. Properly administered, it is to be encouraged.”

Even decades later, a Nigerian-born American lawyer, Kayode Oladele, in his online article titled, “Plea Bargaining and the Criminal Justice System in Nigeria”, states,
“While plea bargaining is a new trend in Nigeria, the practice is considered a common phenomenon in the U.S legal system and it can be argued that the American criminal justice system would simply cease to function without plea bargaining.”

The origin of plea bargaining in Nigeria could be traced to 2005 when it was first used by the Economic and Financial Crime Commission in the trial of the former Inspector-General of Police, Tafa Balogun and later in the case of Diepreye Alamieyeseigha, the ex-Governor of Bayelsa State. It has also been subsequently used in a number of other high profile official corruption and banking fraud cases. In Nigeria, plea bargaining is usually employed in the trial of financial crime cases by making it part of the negotiation for the accused person to surrender some portion of money which he has embezzled and for which he is being tried. This is why some have described it as “celebrity justice”.
The use of plea bargaining has been vehemently condemned by some legal practitioners and scholars, while some others have endorsed and seen it as a welcome development in the Nigerian criminal jurisprudence. For those who argue against the concept, it is their view that plea bargaining is unknown to the Nigerian jurisprudence especially the federal laws. Sometime in 2012, the Chief Justice of Nigeria, Dahiru Musdapher (as he then was), in his criticism of the concept, reportedly said at a public lecture that “…plea bargaining is a novel concept of dubious origin. It has no place in our law – substantive or procedural.”
It is also argued that it is being used to provide soft-landing for influential and elitist law-breakers, while ordinary persons who commit crimes of less economic implications languish in prisons. Akin Oyebode, a renowned Professor of International Law, speaking in like manner in his lecture titled “Plea Bargaining, Public Service Rules and Criminal Justice in Nigeria”, expressed his mind in these words,
“…the thinking of the majority seldom coincides with that of their rulers who would always be trusted to be desirous of wanting to protect their own. The expectations of some lawyers that plea bargaining would be cost-effective and help de-clog the judicial system are apt to receive a hard hearing in a society where a common goat or yam thief goes to jail while the white or blue collar criminal is given a mere symbolic sentence, most of which is either served in pleasurable surroundings or offered the opportunity of fines in lieu of incarceration.”

The only Nigerian legislation that specifically mentions plea bargaining is the Lagos State Administration of Criminal Justice Law, 2007. Section 75 of this law provides,
“Notwithstanding anything in this law or any other law, the Attorney-General of the State shall have power to consider and accept a plea bargain from a person charged with any offence where the Attorney-General is of the view that the acceptance of such plea bargain is in the public interest, the interest of justice and the need to prevent abuse of legal process.”

It would be of interest to also note that some other legislation provide for a process akin, though this is debatable, to the concept of plea bargaining. This is found in the Criminal Procedure Act and the Economic and Financial Crime Commission (EFCC) Act, 2004. 
Section 180(1) of the Criminal Procedure Act provides:
“When more charges than one are made against a person and a conviction has been had on one or more of them the prosecutor may, with the consent of the court, withdraw the remaining charge or charges or the court, of its own motion, may stay the trial of such charge or charges.”

Section 14(2) of the EFCC Act, 2004, on the other hand, states as follows:
“Subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence.”

In fact, EFCC introduced the concept into Nigeria by relying on section 14 (2) of their Act.
It is however the submission of this writer that plea bargaining could not be justified under the two provisions (i.e. sections 180 (1) of the Criminal Procedure Act & 14 (2) of the EFCC Act) quoted above. Section 180(1) of the Criminal Procedure Act deals with the withdrawal or stay of some counts against an accused person where he is already convicted of some other counts in the same charge and as such that cannot be likened to plea bargaining. Plea bargaining, on its own, presupposes an agreement made at the early stage of trial or later but certainly before conviction. Similarly, it is wrong to equate a practice whereby a criminal charge against an accused person is completely dropped in order to use him as a “star witness” for the purpose of securing the conviction of his co-accused persons to plea bargaining. Furthermore, this writer is of the view that section 14(2) of the EFCC Act, 2004, does not also, by literal interpretation of its wordings, imply a plea bargaining. This is because the section deals with the issue of truncating the trial of an offender by accepting some money from him as a fine which the court would have imposed on him, if he had been convicted, while plea bargaining advocates a negotiated agreement which is meant to shorten the course of trial whereby an accused person makes a guilty plea in order to receive a mitigated punishment. And in addition, as found in most cases, he would have agreed to forfeit some portions of his ill-gotten assets to the government. It would have been observed that, in plea bargaining, accused persons usually forfeit sums of money running to millions, even billions in some cases, whereas there is no law prescribing fines close to such amounts of money.
This view is corroborated by the decision of the Court of Appeal (Benin Division) in F.R.N v. Igbinedion [2014] All FWLR Pt. 734, 101 at 144, where the court, per Ogunwumiju (JCA), held, “… plea bargain is as at now generally unknown to our criminal justice administration and indeed our criminal jurisprudence.” It should be pointed out that this court did not come to this position without considering the provisions of the Criminal Procedure Act (which has the same wordings as the Criminal Procedure Law quoted above) and the EFCC Act.
It may be conceded that plea bargaining hastens the process of criminal prosecution as it also enables the federal government, most especially, to retrieve stolen public funds. It is nonetheless a concept that is alien to the Nigerian criminal jurisprudence, though with the exception of Lagos State law.

In conclusion, it is submitted that the use of plea bargaining cannot be entrusted to the whims and caprices of law-enforcement agencies and the courts. There is need for legislative intervention by providing for it in a statute and also by stipulating guidelines for its applicability. The effect of lack of such guidelines played out in the now infamous case of pension fraud where one John Yusuf, an Assistant Director with the Police Pension Board allegedly misappropriated about N32.8 billion and upon his making a guilty plea, he was given a sentence of two years’ imprisonment or an option of paying N750, 000 as fine. He gladly and instantly paid the meager fine. Also, in F.R.N v. Igbinedion (supra), the Court of Appeal declined to hold that a plea bargaining arrangement made in 2008 barred the Federal Government from filing a similar charge against Chief Igbinedion, former Governor of Edo State, in future. In coming to this decision, the court condemned the use of plea bargaining without any regulatory framework in place. Federal law-makers should take this into consideration in the passage of Criminal Justice Administration Bill currently pending before them. Even in the US where the concept is legally and popularly recognized, there are agitations, in some quarters, for its reforms. Timothy Lynch, in his paper titled “The Case Against Plea Bargaining”, concludes that its use usually threatens defendants’ constitutional right to full-fledged trials and in some other cases, it results in a disparity of punishments. The concept may also serve larger interest of justice if extended to other crimes, especially offences commonly committed by ordinary people and most particularly in the case of first-time offenders. This is necessary because in the US, the use of plea bargaining is not restricted to financial crimes. One can only look forward to see a day when an accused person who confesses or pleads guilty on the basis of a plea bargaining procedure, for example, to a charge of murder would be convicted instantly and given, say 10 years in prison, instead of being required to undergo a full-scale trial and where found guilty at the end, be sentenced to death or life imprisonment.

Written by: Kehinde Adegbite and he can be reached via  HYPERLINK ""

Friday, 11 December 2015



Rape is one of the oldest crimes in human history. Rape is a crime in all countries of the world but definition and punishment differ from place to place. It has also been noticed that rape cases are reported more in the Western world than many other parts of the globe. For example, in Africa and Asia, rape victims usually lack the courage to speak out or report their experiences to the law enforcement agencies due to negative societal attitude prevalent in such climes. Rape thrives in secrecy and in a culture where victims are even blamed for what happens to them, instead of the perpetrators.
However, in attending to this all-time important subject, I have decided to break it down, both in terms of the language and style of writing. The lecture is written in simple language, devoid of technical words and phrases as well as legal citations and where citations are given, they are minimal. My experience over the years has made me know that a topic of this nature will be better understood, if prepared and delivered in a question-and-answer manner. That is exactly what I am doing today. I have formulated 50 questions, covering all the crucial aspects of the subject of discussion and have also provided answers to them in accordance with the position of the Nigerian law, while references are made to foreign jurisdictions only when necessary.

1.     What is rape?

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Saturday, 5 December 2015

PRESIDENT Muhammadu Buhari has called for urgent reform of the judiciary in view of the delay tactics employed by judicial officers, lawyers and judges, to stall corruption trials and hinder the recovery of proceeds of crime in high profile corruption cases. The president, who was represented by Vice President Yemi Osinbajo, made the call at the opening session of this year’s All Nigeria Judges’ Conference held in Abuja.

He also regretted that the judiciary is fast losing the trust and esteem of most Nigerians due to alleged corrup­tion in the system.

Buhari also called for the eradica­tion of the practice of indiscriminate granting of perpetual injunctions as well as the reduction in the workload of Supreme Court in order to reduce the delay in the adjudication of jus­tice.

The reforms the president can­vassed for include the reviews of laws, institutions, processes and pro­cedures that inhibit speedy delivery of justice. He called for the re-orien­tation of the attitude of legal practi­tioners in general and stressed that judges must not be weak in sanction­ing lawyers and litigants who deliber­ately stall and frustrate the judicial process.

We commend the President for speaking out and at the right venue thereby giving vent to the innermost feelings of most Nigerians who feel frustrated by the slow pace of the ad­judication of justice in the country.

The damage is not just limited to the administration of justice alone. This malady explains Nigeria’s bot­tom ranking in the world index of the ease of doing business. The World Bank has recorded that whereas it takes a country like Singapore 150 days to enforce a contract at the level of a court of first instance, in Nigeria the same process takes 510 days.

Undoubtedly, the delay in our judi­cial system tends to provide an added encouragement for the corrupt ele­ments in our society, who are aware that all they need to hold up their trial for many years is a clever lawyer and a willing judge.

The Economic and Financial Crimes Commission (EFCC) has shouted it­self hoarse, enumerating scores of corruption cases that have been held up in the court system for between 10 and 12 years. Judges have often used the complexity of our laws as a con­venient excuse. But how does anyone account for the recent decision of the Supreme Court to grant an applica­tion for a stay of proceedings which has been abolished by Section 306 of the Administration of Criminal Jus­tice Act of 2015?

The law is clearly unambiguous: “an application for stay of proceed­ings in respect of a criminal matter shall not be entertained.” We urge Nigerian lawyers to be true agents of the law and not agents of the ob­struction of justice. They should en­deavor to assist the courts and not confound them. They should strive to win cases fairly and not by hook or crook.

We think the Nigerian Bar and the Nigerian Bench with the National Judicial Council should sit down and draw up a manual for trials with sen­tencing guidelines as many countries have done. For a country without jury trial, leaving every decision at the discretion of the judge seems im­prudent.

Seventy-two per cent of people in Nigerian prisons are awaiting trial. It is either that the judges are too few or that the judges are not doing quite enough. How many judgments are required of the Supreme Court in a year? In the United States, the number is 80; with nine justices.

How many judgments are expected from each court of appeal panel, a high court judge, a chief magistrate, in a month? It is no more persuasive to argue that the productivity of the Bench cannot be measured. Other countries do.

Nigeria cannot realistically fight corruption with the present pace of its judiciary. Society is gravely harmed by corruption. And corrup­tion tends to fight back when it is at­tacked. We must continue to see the law as a means to a better society and not a subterfuge to allow evil doers to escape just punishment.

We appreciate the right of accused persons to engage the best lawyers they can. It is a different matter when through ridiculous adjourn­ments, stay of proceedings, obstruc­tionist motions; the courts become a pawn and an accomplice in the ob­struction of justice by the corrupt. We support the reform of the judi­ciary because justice delayed is jus­tice denied.

The Sun

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