ATTAH IGALA STOOL: Why Governor Yahayah Bello Should waste no time approving the nomination of Prince Samuel Opaluwa as the Next Attah Igala.

Folllowing the demise of Attah Igala Ameh Oboni, on the month of August 2020,the Kingmakers of Igala comprising of  Etemahi Igalamela, Agbenyo, Onu biogbo, Onede, Aleji, Okweje, Achadu Kekele Ukwaja,  Ananya Attah, and Achanya Attah set out to nominate and appoint a new Attah Igala from the descendant of the male line of the Ayegba Oma'Idoko who are members of the four ruling houses of Igala,namely, Aju Ame Acho, Aju Akoju, Aju Akwu and Aju Ocholi ruling houses respectively in accordance with the IGALA AREA TRADITIONAL COUNCIL (Modification of Native Law & Custom)Order 2015, which regulates the selection and ascension to the stool of the Attah Igala.  The final Stage  reached a cresendo on Thursday, the 19th day of November, 2020 after weeks of delibration and nomination of the rightful heir to the exalted stool of the Attah Igala for the emergence of a new Attah Igala with the nomination of a former Manager of the Central Bank of Nigeria, Prince Samuel Opaluwa by the AjuAmeachor Ruling House as the preferred candidate to occupy the Attah's stool. 

 

The Stakeholders of AjuAmeachor, which is due to produce the next Attah Igala in accordance with the Kogi State Chieftaincy law and the Igala Native Customs, on Thursday met in Idah and announced that it had unanimously chosen Prince Samuel Opaluwa as the family’s candidate for the exalted throne.

The meeting, which was convened by the Head of the AjuAmeachor Ruling House, Prince Jacob Yahaya Etu, a retired Deputy Commissioner of Police, as required by the Kogi State Chieftaincy law,  screened, and considered three main candidates who had indicated interest in the Attah's stool.The other two candidates include Matthew Alhaji Opaluwa, a Director with the Independent National Electoral Commission (INEC) and Ocholi Opaluwa a high ranking Customs Officer.

Etu, while addressing the stakeholders of the clan on Thursday, said the family had unanimously agreed that Samuel Opaluwa being the eldest among the sons of Opaluwa Oguche, a one time Attah Igala designate who indicated interest be nominated and presented to the other ruling houses as the AjuAmeachor rightful choice for the exalted position.With the said nomination,  of Prince Samuel Opaluwa ,the Igala Area Traditional Council is now legally obliged to forward, the name of the nominee to the State Council of Chiefs who in turn is constitionally mandated to forward same to the Governor in Council, in this context, the Executive Governor of Kogistate for approval. 

The Governor is equally legally required to approve such nomination  , on grounds that the nominee so chosen is not:,

(a)  Suffering from serious Legal infirmity. 

(b ) Under anylaw I force in Nigeria found or declared to be a lunatic or of unsound mind:,

(c)  at the material time of his nomination be sentenced to death.

i. convicted for a capital offence. 

ii. convicted for  offence involving dishonesty and sentenced to imprisonment thereof and:,

iii in each as not been granted pardon. 

(d)  he is not of Good Character. 

The above as stated is  provided in Order 12 of the kogi State of Nigeria IGALA AREA TRADITIONAL COUNCIL (Modification of Native Law & Custom)Order 2015, respectively.  It must be pointed out importantly that, Order 14 of the said Law provides that a Nominee's Religion shall not be a deciding factor in the process of the nomination and appointment to the exalted throne of Attah of Igala. 

It is my humble and candid position that Prince Samuel Opaluwa whose excellent reputation and unflinching status have distinctly surpassed all the grounds stated in ORDER 12 of the  IGALA AREA TRADITIONAL COUNCIL (Modification of Native Law & Custom)Order 2015, as earlier stated in this Article and having maintained an enviable  reputation worth of emulation as an honourable son of Igala Land, the Governor-in Council as no discretion in the matter but approve is nomination as the next Attah Igala in  line with the IGALA AREA TRADITIONAL COUNCIL (Modification of Native Law & Custom)Order 2015 ,when finally the Igala Traditional Council submits such nomination to the State Council of Chiefs who then in turn forward same to the 

Governor for final approval.

Umoru Theophilus Iko-Ojo Esq ,hails from Igalamela Odolu Local Government in Kogistate,.

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Bail Conditions of Mr Deji Adeyanju; Daniel Abobama and Boma Williams - How The Courts Of Law Contribute To Impunity!

A Karshi Magistrate Court, Abuja, has remanded an activist and Convener, Concerned Nigerians, Deji Adeyanju;  Daniel Abobama and Boma Williams in Keffi prisons, Nasarawa State, for protesting against alleged partisanship by the police.

The three accused persons had led a protest to the Force headquarters, Abuja, on Wednesday, against the police for sealing the Akwa Ibom State House of Assembly on Tuesday, when they were picked up and hastily arraigned in court.

The men were charged with criminal conspiracy, public nuisance, disturbance of public peace, and threat to public security and safety, criminal defamatory and derogatory conduct against constituted authority and breach of law and order under Sections 96, 113, 114, 152, 183 and 391 of Penal Code.

The accused persons were, however, granted bail by the presiding Magistrate, Aliu Kagarko, but they could not immediately meets the conditions which included two sureties one of whom must be a level 14 civil servant with a cover letter from his superior, and also a businessman with a verified address.

They were subsequently taken to Keffi prisons by the police after they failed to provide the sureties .

I however find the actions of the Nigerian Police rather distasteful,and more worrisome is the bail conditions granted to the protesters  by the court of law .

The Right To Protest.

The right to protest remains a fundermental right as the 1999 ,Nigerian constitution(as amended) in Section 39 & 40 which provides for the right to Freedom of Expression and Peaceful Assembly & Association.This rights are also enshrined in Article 11 of the African Charter on Human and Peoples’ Rights.,which provides thus ; 

" Every individual shall have the right to assemble freely with others. The exercise of this right shall ONLY be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others."

The Court have also often times upheld this right and same was even settled in the case of Inspector-General of Police. V. All Nigeria Peoples Party (2008) 12 WRN 65 wherein the Court of Appeal had declared that the requirement of police permit for public protests was illegal and unconstitutional.

It should be noted that the Police have no powers to disrupt the peaceful protest of the Nigerian Citizenry EXCEPT they obtain an injunctive relief in a competent court of law against such protest,if there are fears that it may lead to break down of law and order.

It must also be noted that the ONLY exception to the fundermental right to protest is provided in  section 45 of the Constitution, in which case there must be a state of emergency properly declared before these rights can be violated.”

Protest against constituted authorities are  recognised by law and same are not treasonable acts/crimes.

The Magistrate  Court in Karshi Abuja is therefore mandated  to call for a review of its bail conditions as same is inimaical to the tenants of the rule of law and the tenets of the Nigerian Constitution.The Supreme Court have often enjoined that bail condituons should not be oneerous or excessive to one who the court as already granted bail,as same would be tantamount to a denial.

In conclusion ,Nigeria as a nation which prides itself on democratic tenets of the rule of law ,must continually work to uphold and observe the right to  freedom of expression, the right of Nigerians to hold protests, marches, rallies and demonstrations for or against the government  and same should no longer be enjoyed at the whims and caprices of the ruling class.

Umoru Theophilus Iko-Ojo Esq is the Principal Partner & Head of Chambers of the Emmanuel Attorneys & Solicitors Law Chambers.

*emmanuelattorneys&solicitors@gmail.com
*+234-810-2160-864

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Gov. Abdullahi Ganduje: Court Can Not Stop Investigation of A Sitting Governor By The House of Assembly: Umoru Theophilus Iko-Ojo Esq

My attention as been rudely drawn to recent events in the Nigerian state ,and most specifically the series of recent scandalous videos been published appearing to show Governor Umar Ganduje,the Executive Governor of Kano State, pocketing vast wads of American dollars in what was said to be bribe payments from public works contractors.

In the said clips provided by  online-based Daily Nigerian and authenticated by PREMIUM TIMES’ the State governor could be seen collecting wads of dollars which were said to be "kickbacks" from contractors  doing projects for the kano state government before rolling them into his white dress, “babanriga,” in one of a series of questionable deals allegedly struck over a span of several months. The following events prompted an Investigation by the Kano State House of Assembly who invited the Kano State Governor to come and testify.

I have however been gravely alarmed by the audacity of the Kano state government who have branded such obvious acts of corruption as "nothing more than the usual" and in fact gone further to threaten legal actions against the perceived "whistle-blower",more shameful is the recent position of respected silk Itse Sagay(SAN), who quipped that the Kano State House of Assembly is not " properly" equipped to investigate the affairs of the Governor but  carry out oversight functions and not    investigate state executives. According to him,  " Oversight functions don’t include that sort of thing. Oversight functions only involve monies that have been approved in their budget and then oversight is done on how such monies that were approved which have gone through the budget system are being expended.

“That is where their oversight functions are limited to. This allegation is about somebody from outside giving the governor some money. It is not part of the House of Assembly’s responsibilities.”

Respectfully,I totally disagree with the above position of the Most Respected Silk.

The House of Assembly of the various states in Nigeria is clothed with wide powers of investigation as provided in the  1999, Constitution of the Federal Republic of Nigeria and by virtue of Section 128 (1) Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the Office Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into -

(a) any matter or thing with respect to which it has power to make laws; and

(b) the conduct of affairs of any person, authority, ministry or government department charged, or intended to be charged, with the duty of or responsibility for -

(i) executing or administering laws enacted by that House of Assembly, and

(ii) disbursing or administering moneys appropriated or to be appropriated by such House.

(2) The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to -

(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and

(b) expose corruption, inefficiency of waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.

129. (1) For the purposes of any investigation under section 128 of this Constitution, and subject to the provisions thereof, a House of Assembly or a committee appointed in accordance with section 103 of this Constitution shall have power to -

(a) procure all such evidence, written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons as witnesses whose evidence may be material or relevant to the subject matter;

(b) require such evidence to be given on oath;

(c) summon any person in Nigeria to give evidence at any place or produce any document or other thing in his possession or under his control, and examine him as a witness and require him to produce any document or other thing in his possession or under his control, subject to all just exceptions; and

(d) issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails, refuses or neglects to do so and does not excuse such failure, refusal or neglect to the satisfaction of the House of Assembly or the committee, and order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his failure, refusal or neglect to obey the summons and also to impose such fine as may be prescribed for any such failure, refusal or neglect; and any fine so imposed shall be recoverable in the same manner as a fine imposed by a court of law.

(2) A summons or warrant issued under this section may be served or executed by any member of the Nigeria Police Force or by any person authorised in that behalf by the Speaker of the House of Assembly of the State.

       By virtue of this position, the House of Assembly of various states are clothed with ample powers to investigate the affairs of the executives, and without mincing words expose corruption! Though the golden tenants of separation of power preaches that there must be clear cut separation of powers  between arms of government and one must not interfere with the other yet arms of  government must not act as  "water tight compartments' ,    but rather serve as a check on the affairs of each other.                I am also aware of the recent suit by                Barr Mohammed Zubair, the National Coordinator of Lawyers for Sustainable Democracy in Nigeria seeking to stop the investigations of Governor.Abdullahi Ganduje, by the Kano State House of Assembly at the Kano State High Court,while I respect the recent order of His Lordship that parties should maintain status quo,i respectfully submit in disagreement that any attempt to defeat the ends of justice through the machinery of a court of law must be discouraged by the Courts of the land and on no occasion must our court stop investigations into an alleged corruption indictment  on any individual be he so powerful!

Despite being jealously clothed with immunity by virtue of  Section 308 of the Nigerian Constitution , the Kano State Governor is not so immuned from Investigations.Section 188(10) of the Constitution also oust the Jurisdiction of our Courts with regards to proceedings by state houses of Assembly in matters relating to affairs of an Executive Governor,I again submit with respect that the court is ONLY clothed with Jurisdiction if the end result of such  investigations doesn't follow the due process of law.

I submit! Therefore! Let Gov.Abdullahi Ganduje face his accusers or resign!

Umoru Theophilus Iko-Ojo Esq is a Lagos based Legal Practitioner.

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PART II: President Buhari Ineligible To Contest 2019 Elections In Nigeria.

My Legal Position:

Mr Buhari is seeking reelection under the flag of the All Progressives Congress (APC), but like in 2015 has failed to submit his credentials to INEC, claiming the documents are in the custody of the Nigerian Army,he also deposed to an Affidavit in that regard.

It was also reported that the Nigerian President joined the army in 1961 as a cadet officer and rose to the rank of major general but left service in 1985 as Nigerian Head of State after he was toppled in a palace coup.

Notable Legal Practitioners have hinged Buhari's eligibility on the fact that having served in the Nigerian Army as a cadet officer and rose to the rank of Major General ,he is qualified and as fulfilled the requirements in Sections 131(d) 1999,CFRN.Other Notable Practitoners like Taiwo Osipitan (SAN)  have also hinged their position on the premise that the requirments of Section 318(1) of the 1999 CFRN ,didn't require the President to submit any school leaving certificate and an affidavit stating that Mr President as reached or fulfilled Section 131(d) would suffice  and even so his eligibility is solely at the satisfaction or discretion of the Independent National Electoral Commission(INEC).This arguments to me with all due respect is gravely faulty.

Firstly.,the Requirements of Section 131(d) of the Constitution that persons seeking to vie for the position of the Presidency must have been educated up to at least School Certificate Level or is equivalent was further elucidated in the Interpretation Section of the Constitution viz-a-viz Section 318 of the Nigerian Constitution as outlined in the first part of this Article.

Part   A: Provides that School Certificate or its equivalent means  a Secondary School Certificate or it equivalent or Grade II Teacher's Certificate among others.

PART B: Provides that same means "education up to SecondarybSchool Certificate Level or;

PART C: (c) Primary Six School Leaving Certificate or its equivalent and-

(i)  service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and

(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and

(d) any other qualification acceptable by the Independent National Electoral Commission;”

It should be noted that the words AND used in part  C (1) ,(II) and (III)  implies an addition ,in other words before before INEC can exercise its discretion or satisfaction with respect to a candidate who seeks to vie for the Presidency such candidate must have fulfilled the requirements in PART C(I)-(III) of the School Certificate or its equivalent Section in Section 318 of the Constitution.

The Presumption that Mr Muhammadu Buhari having served to the level of Major General in the Nigerian Army is also presumed to have have fulfilled the requirements in Section 318 holds no water ,as Section 131(d) CFRN implies he must show proof of same.

Mr President has instead sworn to an affidavit merely stating were such relevant  credentials are and whose custody they have been.   An Affidavit with all due respect and as explained by Ruud in ,The Nigerian Law of Evidence ,p 222 is defined to be a statement of fact which the maker or deponent swears to be true to the best of his knowledge  , information or belief,same can not pass as being equivalent to the documents ,neither is it tantamout to the documents refered and enutiated in Section 318 of the Nigerian Constitution.

 Most Respected Silk,Taiwo Osiptian (SAN) also hinged his position on Estopel and that  INEC CANNOT reject Mr Buhari's candidacy with the All Progressive Congress having accept it on 4 occasions with the ANPP,CPC respectively.

However it should be recalled that sometime in January 2015 ,the Nigerian Army spoke on the issue of the controversial certificate.

The position of Service was made known by the then Director of Army Public Relations, Brigadier General Olajide Laleye, who was retired after the assumption of office by Buhari.

Laleye said the Army does not have the original or Certified True Copy of President Buhari’s West African Examination Council certificate.

He equally said there was no statement of result in his file.

Laleye’s statement to the press on January 20, 2015, reads in full: “I will begin with the Major General Muhammadu Buhari certificate controversy. Gentlemen, let me state clearly that the Nigerian Army holds the retired senior officer in very high esteem and respect and would not be a party to any controversy surrounding his eligibility for any political office. Suffice to state that Major General Buhari rose steadily to the enviable rank of Major General before becoming the Head of State of our dear country in December 1983.

“The media hype on retired Major General Muhammadu Buhari’s credentials as well as the numerous requests made by individuals and corporate bodies to the Nigerian Army on this issue have necessitated that we provide the facts as contained in the retired senior officer’s service record. Records available indicate that Major General M. Buhari applied to join the military as a Form Six student of the Provincial Secondary School, Katsina on October 18, 1961.

“His application was duly endorsed by the Principal of the school, who also wrote a report on him and recommended him to be suitable for military commission.

It is a practice in the Nigerian Army that before candidates are shortlisted for commissioning into the officers’ cadre of the Service, the Selection Board verifies the original copies of credentials that are presented. However, there is no available record to show that this process was followed in the 1960s.

“Nevertheless, the entry made on the NA Form 199A at the point of documentation after commission as an officer indicated that the former Head of State obtained the West African School Certificate in 1961 with credits in relevant subjects: English Language, Geography, History, Health Science, Hausa and a pass in English Literature. However, neither the original copy, Certified True Copy nor statement of result of Major General Muhammadu Buhari’s WASC result is in his personal file.

“I hope this explanation will put to rest the raging controversy surrounding the secondary school credentials of Major General Mohammed Buhari as it affects the Nigerian Army.”

The claim by Mr Buhari having been debunked by the Nigerian Army , creates a presumption that his often bandied claim of his credentials are seemingly false.Therefore his candidacy for the postion of the presidency having been accepted by INEC on 4 occasions on false grounds /claims can not be a bar if the Independent National Electotal Commission  chooses to disqualify him having failed time and again to present relevant credentials.That is to say,the issue of Estopel can not be used to aid an individual who has benefitted wrongly on false grounds/claim,as it is a settled principal of law that  a party can not benefit from his wrong.Mr Buhari has failed to fulfill entirely the Provision of 318(1) of the Nigerian Constitution and so his candidacy be rejected by INEC.

While Our Team of Lawyers prepare to challenge the eligibility of Buhari's candidacy in court ,we urge the All Progressive Congress and Mr Buhari's teaming supporters to make further attempts to urge the army authorities to provide the supposed credentials of Mr President.

Umoru Theophilus Iko-Ojo is a Lagos based Legal Practitioner.

Emmanuellawattorneys@gmail.com

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President Muhammadu Buhari is Ineligible To Contest The 2019 Elections In Nigeria:Umoru Theophilus Iko-Ojo Esq

As the General Elections approach , I have been perturbed by incessant calls over the past few days by Nigerians on the recent discus on the failure of the Nigerian President ,Mr Muhammadu Buhari to sufficiently show proof of relevant school leaving certificates to the Independent National  Electoral Commission (INEC) ,as required by law.I have also seen various views of distinguished  learned counsel most respectably ,Ebun Adegboruwa Esq and Okutepa (SAN) who have both espoused reasons why Mr President is legally qualified to contest as the Presidential candidate in the 2019 Elections under the All Progressive Congress .Of Note however  ,is the view of Mr Taiwo Osipitan (SAN). Having read through their various Articles ,I'm afraid I gravely go contrary to the similar views exposed by this learned gentlemen.I infact maintain that President Muhammadu Buhari having failed to present or show sufficient proof of  relevant school leaving  certificates to INEC is not eligible to contest the 2019 elections.

The Constitution as the grundnorm provides for the law with respect to eligibility into the position of the President and other elective positions such as the position of the Governor, Senators and members of the National and State Assemblies. Section 130 of the 1999 Constitution provides thus that “there shall be for the Federation, a President” and such “President shall be the Head of State, the Chief Executive of the Federation and Commander- In –Chief of the Armed Forces of the Federation”.

Qualification to the position of the President is provided for in Section 131(a-d), states that – A person shall be qualified for election to the office of President if –
a.he is a citizen of Nigeria by birth;
b.he has attained the age of forty – years.
c.he is a member of a political party and is sponsored by that political party;
and
d.he has been educated up to at least School Certificate level or its
equivalent.

The emphasis of this piece is centered on whether a Presidential candidate can vie for the position of the exalted office of the  President of the Federal Republic of Nigeria without showing proof of being educated up to at least School Certificate level or its equivalent and or as provided in Sections 131(d) of the Constitution . When the above provision is construed in its literal grammatical meaning, persons seeking to vie  for the position of the Presidency who do not possess the Secondary School Leaving Certificate or its equivalent are not qualified to contest election to the office of President. In other words, upon a cursory reading of the provision of Section 131(d), it is evident that unless a person possesses the Secondary School Leaving Certificate or its equivalent (Grade II Teacher’s Certificate, the City and Guilds Certificate), he or she is ordinarily not eligible to contest election to the office of the President of Nigeria.Well ,before stating my candid position of the law in this regards ,I would briefly give a rundown on the contrary but brilliant position of Taiwo Osipitan (SAN).

TAIWO OSIPITAN(SAN).

Notable Constitutional Lawyer, Taiwo Osipitan (SAN) position on the above issues is to the effect that the above Section 131(d) CFRN must be read along with Section 318(1) of the Nigerian constitution, which is the Interpretation Section of the Nigerian Constitution. According to him , upon a careful reading of the said Interpretation Section, that even persons whose educational qualifications are below the Secondary School Leaving Certificate/level and its equivalent are still qualified to contest election, if they possess the Primary Six School Leaving Certificate or its equivalent along with the other requirements listed under the said definition Section (Section 318(1))."

For the avoidance of doubt, Section 318(1) provides:
“School Certificate or its equivalent” means -
(a)      a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b)      education up to Secondary School Certificate level; or
(c)      Primary Six School Leaving Certificate or its equivalent and-
(i)       service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and
(ii)      attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and
(iii)     the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission;”

The learned Silk stressed the point that there  is the need to acknowledge the trite rule of interpretation of Statutes which is to the effect that a Section of a Statute should not be construed in isolation. According to him all sections in a Statute must be interpreted conjunctively, especially where the Statute has a definition Section, as it is the case with the 1999 Constitution (as amended).Section 131(d) according to him,must therefore be construed in conjunction with Section 318(1) of the constitution which defines the words “School Certificate or its equivalent.”

He firmly pointed out that, it  is evident from the above definition Section of the Constitution (Section 318(1)), that the meaning of “School Certificate or its equivalent”, for the purpose of Section 131(d) of the Constitution, is very liberal and accommodating. He stressed that the above provision accommodates persons with the Primary School Leaving Certificate coupled with private or public sector experience and who have attended courses and training for periods totalling up to a minimum of one year and that such primary school certificate holders must also demonstrate ability to read, write, understand and communicate in the English language to the satisfaction of INEC. He further explained that the  definition of “School Certificate or its equivalent” also includes candidates who are educated up to the Secondary School Certificate level and that candidates need not produce certificates evidencing that they passed secondary school examination and instead what they must produce is evidence of being educated up to the secondary school level. He further stated that this is unlike the other requirement of Secondary School Certificate or its equivalent or Grade II Teachers Certificate, or City and Guilds Certificateunder Paragraphs(a) of the definition. The difference between (a) and (b)above is that under (a), production of a Certificate is mandatory. In (b), what is required is evidence of “education up to Secondary School Certificate level”. While it may well be that production of a Certificate is evidence which proves(b), it is not the only mode of proving(b). Testimonials, Reference Letters and Affidavits are legitimate vehicles of proof that a candidate has been “educated up to Secondary School Certificate level.“As a matter of fact, the (d)part of the above definition is much more elastic and accommodating. It recognizes “any other qualification acceptable to the Independent National Electoral Commission as a qualification to contest election to the office of President and other elective posts. It suffices to state that a candidate who relies on (c) must also produce his/her primary school leaving certificate.

He further stated that the provision of Section 318(1) was construed by the Court of Appeal in the case of BAYO v. NJIDDA (2004) 8 NWLR (Pt. 876) page 544 at 629H-630D, where Ogbuagu, J.C.A (as he then was) held: “The above provisions, are conjunctive and they qualify or mean “school certificate or its equivalent.” So, if any one of them is not present/ available, then, the candidate is out. Therefore, even if (i), (ii), (iii) and (d) are acceptable by or satisfactory to INEC and therefore, cannot be questioned in a tribunal as being final, the absence of (c), also disqualifies the candidate.
In the case of (c), he must in the first instance possess, primary six school leaving certificate or its equivalent, (in some states there used to be primary 7 as the final class in Primary school), and in addition evidence of (i), (ii) and (iii) above all together AND that it follows that a person who is not educated up to school certificate or its equivalent, may still qualify for election to the House of Assembly of a state if he has primary six school leaving certificate plus evidence or fulfilling every one of the conditions in (i), (ii) and (iii). If the person possesses primary six certificate but fails to provide evidence of any of the above (i), (ii) or (iii), he does not qualify.

The Learned Silk futher quipped that the definition Section (Section 318(1)) also vests INEC with powers to determine a candidate’s literacy level. Under Paragraph (b), the capacity in which a candidate served in the private or public sector must be acceptable to INEC.  The courses and training attended by a candidate must also be in Institutions acceptable to INEC. Finally, a candidate’s ability to read, write, understand and communicate in the English language must also be to the satisfaction of INEC.

He also submitted that the key words in the definition Section are “acceptable”to and “satisfaction” of INEC. These words are subjective in the sense that where INEC is satisfied with a candidates training and qualifications or where the qualifications of a candidate are acceptable to INEC, it is doubtful if the decision of INEC can be challenged successfully by a candidate’s opponent. The words “to the satisfaction of” and“acceptable to”, in their ordinary grammatical meanings, acknowledge subjectivity on the part of INEC. The word acceptable is synonymous with being in agreement with, approval, not very good  but good enough, welcoming,  pleasing, satisfactory, adequate or worth accepting. Satisfaction means a state of being satisfied, that which satisfies, content or pleasing.

From the Angle of Law of Estoppel,the Learned silk further submitted that where INEC has previously been satisfied with or accepted a candidate’s educational qualifications in previous Elections, and allows such a candidate to contest election(s) the same INEC would be estopped from disqualifying the same candidate in future Elections on the ground of lack of educational qualification.

He further submitted that Estoppel prevents a person from blowing hot and cold, approbating and reprobating on an issue. Therefore, where a person makes a representation expecting it to be acted upon, and another person acts on that representation, the former is estopped from resiling from his/her representation.   He cited the positions of the law in :

1.Ude v Nwara (1993) 2 NWLR (Pt. 278) Pg. 638 at 662, Para.G -PerNnaemeka-Agu J.S.C:where the court held. that “By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him.”

2. Jadesimi v Okotie-Eboh; In Re Lessey (1989) 4 NWLR Pt 113 Pg 113 at 125, Para. B – Per Akpata J.C.A.: “A party cannot be heard to approbate or reprobate. He will not be allowed to base his action or defence, whether by pleadings or affidavit evidence, on a set of facts then depart from the set of facts on which issues had been joined to meet the case of the other side.”

He further concluded that It is evident from Section 131 (d), read along with Section 318 (1) of the Constitution, that a candidate need not produce a Secondary School Certificate or its equivalent Certificate in order to be qualified to contest election into the office of the President of the Federal Republic of Nigeria or any other elective post. Candidates who are educated up to Secondary School Certificate level are qualified to contest Elections under the 1999 Constitution. Persons with Primary Six School Leaving Certificate or its equivalent, provided they satisfy the other requirements listed under Paragraph (c)(i), (ii), and (iii) of the definition of “School Certificate or its equivalent” in Section 318 (1), are also qualified to contest election into elective offices, including that of the President and that persons with “any other qualification acceptable to the Independent National Electoral Commission” are also qualified to contest election under Paragraph (d) of the definition Sectionset out above.

In Conclusion on his position ,he submitted that the elasticity of the definition of “School Certificate or its equivalent” in Section 318 (1) of the Constitution may be questioned against the backdrop of providing a Platform for candidates who lack sound educational background to aspire to elective offices, in a Nation which prides itself with aspirants with sound educational qualifications.The said provision can also be questioned on the ground of the enormous power vested in INEC with regard to being satisfied with a candidate’s educational qualification or the educational institutions/qualifications being acceptable to INEC.

(to be continued shortly....)

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POLICE, EFCC LACKS POWERS TO DECLARE A NIGERIAN CITIZEN WANTED WITHOUT AN ORDER OF A COMPETENT COURT

Over the years ,the country's topmost security agency ,the Nigerian Police Force and in fact other security agencies have seemingly been in the habit of declaring persons/citizens wanted on reasons bothering on various allegations. More recently  are the recent cases of persons like Mr Kassim Afegbua, spokesperson for the former military president,Ibrahim Babangida who was declared wanted by the Nigerian Police Force and Department of State Security Service (DSS) over a purported statement by him unbehalf of his Boss, asking President Buhari not to run for the 2019 elections.

Another instance is the case the of Chief Executive Officer of AITEO Group, Benedict Peters,who was declared wanted by the Economic and Financial Crimes Commission in relation to charges bothering on  his alleged involvement in $115m allegedly used by agents of the past administration to bribe officials of the Independent National Electoral Commission during the 2015 election.Though both parties have gone on to challenge the legality of such declarations by these law enforcement agencies,but the topmost question is not whether  these agencies can  declare a person wanted under our laws in exercise of their constitutional duties ?

-The Legal Perspective-

The law is settled that the Police can not arrogate unto itself powers to prosecute and pass a sentence by way of declaring a citizen wanted.Article 9 of the United Nations Declaration of Human Right to which Nigeria is signatory to provides that no one shall be subjected to arbitrary arrest, detention or exile. This provision is also domesticated in Section 35  of the 1999 Constitution of Nigeria, and guarantees that the dignity of all Nigerians must enjoy safeguards against arbitariness whether official or non official.In other words, the Police CANNOT on its  own declare a nigerian citizen WANTED as it can not be the complainant, the investigator and also the one to declare such citizens wanted thereby overriding judicial powers.

The law demands that before making a wanted declaration of a Nigerian Citizen on a Public Platform or any other platform , the police ought to obtain a warrant arrest duly signed and endorsed by a competent court. The said warrant must also be presented at the point of arrest and it in the particulars of arrest ought to be spelt out. Where a person sought to be arrested makes a run or evades same ,then a declaration informing the public of the accused person's status may be made but same must follow the due process of law by getting a competent order of court.

In the said case of Benedict Peters, in the suit marked, FCT/HC/CV/23/2017, the Applicant accused EFCC of declaring him wanted on its website without following due process.The EFCC and the Attorney-General  of  the Federation were the respondents to the above suit.

The plaintiff, through his lawyer, Mike Ozekhome (SAN), contended that his client was declared wanted by the  EFCC without a pending charge against him or a valid court order to that effect but merely on the basis of a purported bench warrant and same was a violation of his fundamental rights ,But Justice Musa, in his judgment, noted that there were discrepancies in the dates in a copy of the bench warrant tendered by the EFCC.

He said it was wrong for the EFCC to declare Peters wanted on the basis of the bench warrant, which he noted, did not contain any instruction to that effect.The judge held that EFCC’s decision to declare Peters wanted, without first obtaining a court order to that effect or filing a charge against him in court, was a violation of his fundamental rights, particularly the right to freedom of movement.

Lastly, the implication of declaring a person wanted is to the effect that such persons declared wanted is seen by the public or  is assumed by the public that such a person is not just a wanted criminal, but also a potentially dangerous one.  Note that, the serious implication of such above presumptions makes any deviation from the above process by law agencies in question an abrogation of lawful processes, a clear indicator that the said agency in question seeks to appropriate to itself powers vested singularly in the courts and also a gross disrespect of the accused person’s dignity of self, especially where he or she is neither on the run, in hiding nor knowing of the summon, invitation or intended arrest.”

Security agencies in the exercise of their lawful duties are therefore mandated to follow the due process of law.

Umoru Theophilus Iko-Ojo is a Legal Practitioner based in Lagos.

Contact@emmanuellawattorneys@gmail.com

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Anti-Social Media Bill:The Nigerian Senate Lack Powers to Criminalize The Freedom of Expression.:By Umoru Theophilus Iko-Ojo Esq.

I was awashed with several calls in the past few days by various learned gentle men of the honourable bar in respect of a purported bill by the 8th Nigerian Senate at sanctioning or regulating the criticisms against Public officers by Nigerians.The proposed law as I was informed sets out heavy sanctions for people who “falsely” criticise public officials or institutions.

The bill, which is also reported to have been sponsored by Bala Ibn Na’allah, a member of the ruling All Progressives Congress fromKebbi State,has been widely criticised,and is seen as not only a significant clampdown on freedom of speech, but a deliberate targeting of critics of federal lawmakers and the National Assembly.The bill states that, “Notwithstanding anything contained in any law, it shall be unlawful to submit any petition, statement intended to report the conduct of any person for the purpose of an investigation, inquiry and or inquest without a duly sworn affidavit in the High Court of a state or the Federal High Court confirming the content to be true and correct and in accordance with the Oaths Act.

“Any petition and or complains not accompanied by a sworn affidavit shall be incompetent and shall not be used by any government institution, agency or bodies established by any law for the time being enforced in Nigeria.

Any person who unlawfully uses, publishes or cause to be published, any petition, complaint not supported by a duly sworn affidavit, shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for six months without an option of fine.”

It continues: “Any person who acts, uses, or cause to be used any petition or complaints not accompanied by duly sworn affidavit shall be deemed to have committed an offence and upon conviction, shall be liable to an imprisonment for a term of two years or a fine of N200,000.00 or both.”

It also states that, “Where any person in order to circumvent this law makes any allegation and or publish any statement, petition in any paper, radio, or any medium of whatever description, with malicious intent to discredit or set the public against any person or group of persons, institutions of government, he shall be guilty of an offence and upon conviction, shall be liable to an imprisonment term of two years or a fine of N4,000,000.00.”

The social media  bill further provides, “Where any person through text message, tweets, WhatsApp or through any social media posts any abusive statement knowing same to be false with intent to set the public against any person and group of persons, an institution of government or such other bodies established by law shall be guilty of an offence and upon conviction, shall be liable to an imprisonment for two years or a fine of N2,000,000.00 or both fine and imprisonment.”

However Nigerians have clamped against the supposed bill which have suspiciously received a rather speedy or unusually rapid attention at the senate, with two readings made within two weeks of its introduction.

The Illegality of the Purported Bill:An Attempt to Criminalize The Right to Freedom of Expression.  

Well, having watched the actions of the Nigerian Senate ,I was rather amused at the desperate attempts by the nation's topmost lawmaking arm to grossly contravene the Nigerian Constitution by criminalising the divinely ordained right of the Nigerian citizenry.Without the task of repetition ,Section 39 of the constitution of the Federal Republic of Nigeria provides for the Right to freedom of expression ,which include the right of a citizen to hold his or her own personal opinions,which is ordinarily availed to every citizen of Nigeria in a democratic system, not just in Nigeria but in various countries of the world.Nigeria can therefore not be an exception .Need I mention that similar provisions are provided in Article 9 of the African Banjul Charter to which Nigeria is signatory to and Article 19 of the UN Charter respectively.

It is also pertinent to remind the 8th Nigerian Senate  that, as far back as 1983, the right of the Nigerian people to criticise public officers without any sanctions whatever was upheld by the Court of Appeal which annulled the offence of sedition in the case of Arthur Nwankwo v. The State (1985) 6 NCLR 228. In that case, Olatawura JCA (as he then was) of blessed memory had this to say:

“Those who occupy sensitive posts must be prepared to face public criticisms in respect of their office so as to ensure that they are accountable to the electorate. They should not be made to feel they live in an Ivory Tower and therefore belong to a different class. They must develop thick skin and where possible plug their ears with cotton wool if they feel too sensitive or irascible. They are within their constitutional rights to sue for defamation but they should not use the machinery of government to invoke criminal proceedings to gag their opponents as the freedom of speech guaranteed by our constitution will be meaningless.”,

The actions of the Nigerian Senate is thus grossly irresponsible and a desperate attempt to curb and criminalize the voices of the poor Nigerian masses and yes, the purported bill if passed into law will be challenged by myself and other members of my legal team in the Federal High Court Abuja, as same grossly contravenes Section 1(3) of the Nigerian Constitution as it is inconsistent and void abinito.

Futher more the offence of criminal libel and sedition (Criminal libel means the offence of making a malicious defamatory statement in a permanent form,Sedition means conduct or speech inciting people to rebel against the authority of a state or monarch)  provided in the Criminal Code as been long held to be inconsistent with the constitution of Federal Republic of Nigeria. It is pertinent to also note that the land mark decision in Auther Nwankwo v The State supra as delivered by Olatawura JCA is binding on all authorities and persons in Nigeria,speaking for the Court of Appeal,

 Olatawura JCA held inter alia:

“We are no longer the illiterates or the mob society our colonial masters had mind when the law was promulgated…To retain S. 51 of the Criminal Code, in its present form, that is even if not inconsistent with the freedom of expression guaranteed by our Constitution will be a deadly weapon to be used at will by a corrupt government or a tyrant…Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.” 

It is therefore submitted that the resort to criminal libel and sedition by public officers to settle scores with critics and or political opponents is illegal in every sense. Public officers who feel offended by any defamatory publication have been rightly advised by the Court of Appeal to defend their reputation and bruised ego by suing for libel in a civil court.

Nigerians like other citizens of the world have a fundermental ,divine right to hold their leaders accountable ,such rights are first endorsed by God and can not be surreptiously curtained by the scandal ridden bandwagon of the 8th Nigerian Senate.

Umoru Theophilus Iko-Ojo is a legal Practitioner based in Lagos State Nigeria.

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MARITAL RAPE UNDER NIGERIAN LAW & SALIENT ISSUES BY UMORU THEOPHILUS IKO-OJO ESQ

It is no secret  that under Nigerian Law a Husband CANNOT be accused of RAPING his wife , the criminal code and penal code excludes and excuses married couples from the crime of rape.

The Nigerian Criminal Code in Section 357 states that, “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.

Section 6 of the Criminal Code defines unlawful carnal knowledge as that which takes place otherwise than between husband and wife; and the offence is complete upon penetration. In other words, marital rape is not an offence in Nigeria. A husband cannot rape his wife. It is assumed that the wife gives implied general consent to sexual intercourse with her husband upon entering the marriage contract.” In his book, History of the Pleas of the Crown (1736), Sir Matthew Hale wrote, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”

In the Penal Code, Section 281(1) provides that: “A man is said to commit rape who… has sexual intercourse with a woman in any of the following circumstances – (a) against her will; (b) without her consent; (c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt; (d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (e) with or without her consent, when she is under fourteen years of age or of unsound mind.

Similarly, under the Penal Code, there is no offence of marital rape, provided the wife has attained the age of puberty.

There have been various criticisms of the Criminal and Penal Code majorly on three (3) grounds;

(a) the offence of rape is gender specific,only men can commit the offence of rape.
(b) the act amounting to rape is limited to penile penetration of the vagina – anal or oral sex or penetration using objects or other parts of the body such as the tongue or finger, do not constitute sexual intercourse for the offence of rape; and
(c) marital rape – both codes provide (with certain exceptions) that sexual intercourse between a husband and wife cannot constitute the offence of rape.

In other words ,it is settled that by virtue of a woman consenting to lawful marriage ,she has consented to sexual intercourse by her lawful wedded Husband(I said lawful wedded please),however the country's legal system fail woefully to see the danger in this lacuna(loopholes).

Married women do get raped every day and it is pitiable that Nigerian lawmakers have turned blind eye to this Truth! Little wonder an attempt to criminalize Marital Rape in Nigeria in 2013 via the SEXUAL OFFENCE ACT was never assented to by the then President and the National Assembly never thought of pushing same after Mr President withheld his consent. The bill expanded the definition of rape to cover both genders; in other words, under the bill a woman is capable of committing the offence of rape. It also provided for a sexual assault offence for non-genital penetration, i.e., penetration with mechanical objects or other parts of the body like the finger or tongue. There was some controversy surrounding the bill particularly over the age of sexual consent.     The provisions in section 7 of the bill were misinterpreted as reducing the age of sexual consent to age 11 and the entire bill was resisted. This may have informed the President’s reluctance to give his assent and sign it into law.

The VIOLENCE AGAINST PERSONS(PROHIBITION) ACT 2015,which is only applicable in Abuja only recognises the fact that RAPE can be committed by both genders but didn't address the issue of MARITAL RAPE.  In other words a woman can commit the offence of rape .

Neither the Sexual Offences Bill nor VAPPA addresses concerns about marital rape. However, Lagos State has a domestic violence law that takes sexual offences beyond unlawful “carnal knowledge” and, in my thinking, prepares the ground for future prosecution of marital rape in Lagos State. This Lagos State law [The Protection Against Domestic Violence Law (2007)] was enacted to “provide protection against domestic violence and for connected purposes.

It is obvious that the so called loopholes in our SEXUAL OFFENCE LAWS are  obviously very intentional and not just an oversight.

It should be noted that under our laws a husband can be liable of raping his wife IF both of them are not in amity.When however they are in amity ,a husband depending on the circumstances can be charged for assault on his wife despite penetration and funny enough not the offence of rape against his wife !

However though,

Married women do get raped in their matrimonial homes  and the rape laws in Nigeria must take cognisance of that fact !

to be continued.......

Umoru Theophilus Iko-Ojo Esq is a Lagos based legal practitioner .
phylumoru@yahoo.com

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NO CASE SUBMISSIONS IN CRIMINAL PROCEEDINGS & AN APPRAISAL OF THE SUPREME COURT DECISION IN OKAFOR V. STATE.BY UMORU THEOPHILUS IKO-OJO ESQ.

Under the Nigerian legal system,at the close of the case for the Prosecution i.e examination-in-chief,cross-examination, and re-examination  of all witnesses for the prosecution ,the prosecution announces the conclusion of its case .It is now the turn of the defence to go into is case.

The options available to the accused person at this stage are many,and they are as follows:-

*First ,the accused person may rest his case on that of the prosecution's case.

*Secondly ,he may decide to enter his own defence by calling witnesses to rebut the prosecution's case.

*Thirdly,Invite the court to dismiss the charges and discharge the accused if in their opinion ,the evidence produced by the prosecution has not presented a "prima-facie" case against the defence.

Even in other jurisdictions like the United kingdom,same applies as during a criminal trial a defendant may submit to a Judge or Magistrate that there is no case for the defendant to answer .A No - case submission in the united kingdom is usually heard in the absence of  a jury.SEE the case of R V. Galbraith(1981) WLR 1039

NO - CASE SUBMISSION

In Nigeria the concept of a "No - Case Submission" as enjoyed much notoriety especially in landmark decisions like in the cases of State V.Audu(1972)6 Sc 28.,Daboh V. State(1979) Sc 197.,and Onagoruwa V.State(1993)7 NWLR (Pt 303). Section 286 of the Criminal Procedure Act ;Section 191(3) and (5) of the Criminal Procedure Code also provides thus that:-

          "If at the close of evidence in support of the charge,
           it appears to the court that a case is not made out
            against the defendant sufficiently to require him to
          make a defence ,the court shall,as to that particular
           charge ,discharge him".

Thus ,when No - Case is made out unbehalf  of an accused at the close of evidence for the prosecution ,the court may by itself discharge the accused.SEE the case of Ekuwnugo V. FRN(2008)Vol 1 10 MJSC79 (Pg 84-85)Para 6-5.

-WHO CAN MAKE A NO-CASE SUBMISSION ?

(1) The Court can suo-moto make a No - Case submission,when it appears that a case is not made out against the the defendant/accused sufficiently to require him make a defence. SEE Sections 286CPA and 191 (3) CPC respectively.

(2) The defence can also make same without entering into a No-Case Submission.

It is apt to note the Circumstances in which a court can make a No-Case Submission;
a. When there has been no evidence to prove an essential element in an alleged offence i.e whether a prima-facie case as even been made against the accused.

b. When the evidence adduced by the Prosecution has been discredited as a result of cross-examination.

c. Where it is proved to the satisfaction of the court that the evidence adduced by the prosecution is so manifestly unreliable that no court can safely convict on same.

The above Conditions are not cumulative .Any of the conditions can warrant the court to raise a no- case submission suo-moto or by the accused himself.SEE the case of DABOR V.STATE(Supra)

The Onus of prove is therefore on the prosecution to show a prima facie case against the accused as the law presumes the latter INNOCENT until proven otherwise.SEE Sections 36(5) of the 1999 Constitution of the Federal Republic of Nigeria.

The case of Ajisogun V. The State(1988)13 NWLR (Pt 581)pg236 particularly at pg262,is also relevant as it explains clearly the stages in the prosecution process and the implication of each of the stages and the hurdles the prosecution needs to surmount in each of the stages. Summed up,the position is as follows;-

                " A submission of "no -case to answer" in a criminal trial

                   Is a submission on point of law.Pure and Simple.Nothing 

                   more and nothing less.It is a legal submission.It is analogous

                   to a demurer in a civil court or trial.All the accused is

                   saying at the stage of trial is to the effect : Accept all that the

                Prosecution as said through it witnesses  yet it(Prosecution)cannot 

               secure  a conviction either of the offence charged or

               of any other alternative offence of which may possibly be convicted   

               upon the evidence,".

It now becomes apparent that from the above ,in criminal trials there are two(2) stages the prosecution may attain and seek to get through or over.                    The first stage is the stage of making out a "prima facie" case requiring the accuse to enter a defence.

The second stage may never be reached provided the prosecution fell and failed in the first stage or hurdle .The stage is the stage of establishing the guilt of the accused.The accused is entitled to an acquital  if the prosecution fails at either of the two stages. 

In the case of Okoro V. The State(1988)5 NWLR 225,the Court posited that;-

          "  A submission of no case to answer is wrongly overruled

            If and when,the ruling was made calling an accused to make

           his defence to a charge ,the evidence presented by the prose-

           cution was not sufficient to require the accused make his defence"      

The court further posited that;-

               "Where a no Case to answer has been wrongly overruled ,

             and the accused gives evidence in his defence and supplies 

              the hither to missing ingredients required for his conviction,

             such conviction would be regarded as invalid"

It must also importantly be noted ,that a ruling on a No-case submission discharging the accused  is tantamount to a judgment of the the Court and same is on merit which can only be set aside on appeal.SEE Clement Nwali V IGP(1956)LRREN 1,SEE also Section 301 of the CPA.

In the case of Mumuni V. The State(1975)6 Sc 79,it was held that were,therefore ,the court erroneously ruled that an accused has a case to answer when infact the reverse is the case ,an accused person who withdraws from further participation in the case would have a very bright prospect on appeal.But if the accused stupidly continues to participate in the proceedings ,even though no case has been made against him ,his conviction on evidence would be final unless and until appealed.

-AN APPRAISAL OF THE CASE OF  OKAFOR V.THE STATE ,being a Judgment given by the Supreme Court on the 29th day of January 2016 and Reported inhe (2016) SCM pg 170---189

-FACTS-
The Appellate (Daniel Okafor) and one Sunday Okolie were arraigned before the trial Court on a three count charge of conspiracy to kidnap ,attempted kidnap and attempted Murder with others now at large ,of one Chief John Uchechu punishable under Section 516 ,509 and 320 respectively of the Criminal Code Cap 21 Vol Laws of Delta State 2006.
Having pleaded NOT GUILTY to each count charge ,the prosecution at trial called 4 witnesses ,tendered some exhibits and closed its case.The appellant there after made a no-case submission .In the trial court Ruling on the no case submission ,the trial court upheld the no case submission made on behalf of the appellant and discharged him on all counts.

*The Court also upheld the appellant's No-Case submission on the third count of attempted Murder but overruled the submission in respect of Count 1 and 2 for conspiracy to kidnap and attempted kidnapping.

*The Court further held that a prima facie case had been made out against him in respect of the two counts and called upon him to enter his defence.

Dissatisfied with the trial Court's decision ,the appellant appealed to the appeal court which dismissed the appeal and affirmed the decision of the trial Court.The Supreme Court in dismissing the appeal enunciated on the  concept of No - Case submission that;

*A No-Case submission would be upheld where there has been no evidence to prove the essential element of an offence charged ,citing Sections 286 of the CPA,the Apex Court averred that at the stage of a No case submission , what the trial court is suppose to consider is not whether the evidence so far adduced by the Prosecution against the accused person is sufficient to justify conviction ,but simply whether the Prosecution had made out prima-facie case requiring due explanations on the part of the accuse person.The case of Duru V. Nwosu (1989)4 WLR (Pt 113)24 and Ikonu V. State (1986) 3 NWLR (Pt 28) 340 at 365 was cited.

*The Apex Court further posited that a ruling in a case of No case submission should be brief and no remarks or observations should be made on the fact in order for a trial court not to feather its discretion.SEE the case of Ubantu V. C.O.P(2000)1 SC 31 @38-39;
Omisore V. the State.(2005) Vol 1,Q.C.C.R.148@143.

*It was further posited by the Supreme Court ,that a stage of No case submission ,the question and as to whether or not the evidence is believed is immaterial and does not arise.The credibility of the witness is also not in issue.SEE the case of Adeyemi V. The State(1991)6 NWLR (Pt.195).1

In conclusion ,when a No - case submission is overruled, the accused still as the chance of giving evidence in the substantive trial.This ofcourse should be contrasted with a situation were an accused person "rest his case"on the prosecution.In this instance(resting accused case on the prosecution) ,a ruling given against the accused is final and the accused is estopped from entering into any form of defence.It is also settled law that when a no-case submission is in favour of  the accused,he can raise the defence of "autrefois acquit" if the prosecution re-arraigns him on similar charges.

Umoru Theophilus Iko-ojo is a Lagos based Legal Practitioner.

07065702465,phylumoru@yahoo.com

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REGISTRATION OF CHURCHES IN NIGERIA : WHAT NIGERIAN PASTORS MUST KNOW-BY UMORU THEOPHILUS IKO-OJO ESQ

The Law demands that every organisation ,including churches be registered as even the Bible enjoins us to obey civil authorities. It is  important that churches must comply with government regulations  concerning registration.

Secondly ,registration and trusteeship are necessary for a church to be a legal entity in order to own immovable property(ies) and bank account(s).

Well,this work is majorely aimed at enlightening educating church Pastors/members/spiritual leaders on the dictates of the Nigerian Constitution and the requirement of the Corporate Affairs Commission(CAC) ,the statutory body responsible for company registration & allied matters.

Now on Registration shortly,Chapter 4 ,Section 38 & 40 of the Nigerian Constitution (1999) states:
38(1) Every Person shall be entitled to freedom of thought ,conscience and religion ,including freedom to change his religion or belief ,& freedom (either alone or in community with others ,and in public or in private ) to manifest and propagate his religion or belief in worship ,teaching, practice and observance.

(2) No Person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ,ceremony or observance relates to religion other than his own ,or religion not approved by his parent or guardian.

(3) No religious community or denomination shall be prevented from providing religious instructions for pupils of community or denomination in any place of education maintained wholly by the community or denomination.

(4) Every Person shall be entitled to assemble freely and associate with other persons ,and in particular he may form or belong to any political party ,trade unions or any other association for the protection of his interest ; provided that the provisions of the of the section shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission with respect to political parties in which the  Commissioner does not accord recognition .

The quoted section guarantees the right to FREEDOM OF RELIGION & FREEDOM OF ASSOCIATION without any hindrance ,consequently ,registration is not a requisite to the formation of a political or religious group( e.g churches , mosques ,shrines).People sharing  political ideology do not have to REGISTER and seek permission to assemble ,same goes for people sharing RELIGIOUS beliefs. Of course it is not compulsory to belong to a registered political party unless one wants to contest election. 

Religious bodies like churches need not register to propagate their religion,however churches planning to build new denominations must compulsorily register with the Corporate Affairs Commission(CAC) .

The law also requires that such religious groups or churches name board of trustees ,place a notice of the groups intent to organise in three national newspaper and send trustee information to the  Corporate Affairs commission. If no objections are received ,the group can proceed with its meeting.

The main aim of this law was put into effect to stem the proliferation of new buildings in the absence of zoning laws,to resolve legal questions arising from disputes over church ownership and control ,to provide a single registry for government reference in the event that compensation is demanded following civil disturbances,and to allow for legal solemnization of marriage. 

It is worthy of note to state that an unregistered body in Nigeria can not sue or be sued in its name and such bodies are not clothed with legal personalities.

I would advise churches or religious organisations to contact a Corporate Affairs Commission certified legal practitioner for the purpose of any registration of their religious body.

Umoru Theophilus Iko-ojo is Lagos based Legal Practitioner. 

 

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Adegboruwa’s Argument That IPOB Cannot Be proscribed Because It Is Not Registered Is Not Tenable - Okoi Obono Obla Esq

On Wednesday, September 20, 2017 the Federal High Court of Nigeria, Abuja division presided over by the Acting Chief Judge, The Honourable Justice Abdul Kafarati granted the application of the Honourable Attorney General of the Federation on behalf of the Federal Government of Nigeria on an order declaring the Indigenous People of Biafra illegal and proscribing it as a terrorist organization. Following the order, there have been reactions from a section of the public and civil society that the order proscribing IPOB is unconstitutional because IPOB is not a registered body in Nigeria. Okoi Obono-Obla, and Chairman Special Presidential Panel for the Recovery of Public Property, supports the order of the court on its declaration that IPOB is a terrorist organization and says the purpose of this treatise is to correct the impression that the order is unconstitutional.

According to him “The Terrorism (Prevention) Act did not stipulate that a body must be registered in Nigeria or elsewhere before it can be proscribed, within the contemplation of the provisions of Section 2 subsection 1 of the Act. Indeed Section 1 subsection (a-h) of the Terrorism (Prevention) Amendment Act, 2013 provide as follows thus:

A person or body corporate who knowingly in or outside Nigeria directly or indirectly willingly:
does, attempts or threatens any act of terrorism,
commits an act preparatory to or in furtherance of an act of terrorism,
omits to do anything that is reasonably necessary to prevent an act of terrorism,
assists or facilitates the activities of persons engaged in an act of terrorism or is an accessory to any offence under this Act,
participates as an accomplice in or contributes to the commission of any act of terrorism or offences under this Act,
assists, facilitates, organizes or directs the activities of persons or organizations engaged in any act of terrorism,
is an accessory to any act of terrorism, or
incites, promises or induces any other person by any means whatsoever to commit any act of terrorism or any of the offences referred to in this Act, commits an offence under this Act and is liable on conviction to maximum of death sentence.

Section 2 of the Terrorism (Prevention) Act provides that where two or more persons associate for the purpose of or where an organization engages in-

Participating or collaborating in an act of terrorism,
Promoting, encouraging or exhorting others to commit an act of terrorism, or
Setting up or pursing acts of terrorism, the judge in chambers may on an application made by the Attorney General of the Federation, National Security Adviser or Inspector General of Police on the approval of the President, declare any entity to be a proscribed organization and the notice shall be published in official gazette.”

He went further to say that “From the foregoing, by virtue of the provisions of Section 2 (1) (a) (b) & (c) of the Terrorism (Prevention) Act (supra), the argument that the so-called Indigenous People of Biafra (IPOB) cannot be proscribed because it is not registered in the Federal Republic of Nigeria is not tenable.”

Obono Obla also stated that Similarly, the argument that the proscription of IPOB is tantamount to an infringement of the right of freedom of association as enshrined by Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest does not hold in this instance.

The Constitution in Section 45 (1) (a) & (b) thereof provides thus:(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom or other persons.

“It follows that it is perfectly in order for the Federal Government of Nigeria in view of the terrorism unleashed by IPOB on those who do not subscribe to its separatist and violent ideology which threatens the fundamental rights of Nigerians and threatens national security, corporate and territorial integrity of the country to proscribed it in view of the provisions of Section 45 (1) (a) & (b) of the Constitution.Despite the right of freedom of association secured by Section 40 of the Constitution, Section 62 (2) of the Criminal Code prohibits unlawful society such as IPOB,” he said.

Section 62 (2) of the Criminal Code defines a society as unlawful:

(i) if formed for any of the following purposes‐

(a) levying war or encouraging or assisting any person to levy war on the Government or the inhabitants of any part of Nigeria; or

(b) killing or injuring or encouraging the killing or injuring of any person; or

(c) destroying or injuring or encouraging the destruction or injuring of any property; or

(d) subverting or promoting the subversion of the Government or of its officials; or

(e) committing or inciting to acts of violence or intimidation; or

(f) interfering with, or resisting, or encouraging interference with or resistance to the administration of the law; or

(g) disturbing or encouraging the disturbance of peace and order in any part of Nigeria; or

(ii) if declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof.

Undoubtedly, IPOB is an unlawful society within the contemplation of Section 62 (2) of the Criminal Code. Also, the President is vested with power by Section 62A of Criminal Code.

Section 62A of the Criminal Code provide that without prejudice to the provisions of section 62 of this Code, a society is an unlawful society if it is declared by an order of the President to be a society dangerous to the good government of Nigeria or of any part thereof, and for such purpose the consent of the Attorney-General of the Federation referred to in section 65 of this Code shall be construed as a reference to the consent of the Attorney‐General of the State.

It follows that the proscription order granted by Justice Kafarati is lawful, constitutional and proper.

speaking further, the Senior Special Assistant to The President on Prosecution said “It beats me as to how the argument put forward by Ebun-Olu Adegboruwa, an experienced and tested Legal Practitioner of many years standing, could use the principles of law designed and applicable to Civil Proceedings to argue that the order of proscription of IPOB is faulty because the body is not registered in Nigeria and therefore cannot sue or be sued.”

“It is beyond argument that the application for an order proscribing IPOB was brought pursuant to the Terrorism (Prevention) Act which to all intents and purposes a criminal legislation. It is well settled that the rules of procedure that regulates criminal proceedings in the Federal High Courts and the High Court of the Federal Capital Territory, Abuja, is the Administration of Criminal Justice Act,2015 (not the Federal High Court (Civil Procedure) Rules or the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004,” he said.
Obono-Obla said “It is clear the entire submission of Ebun-Olu Adegboruwa is premised on principles of law based on the construction and interpretation of the Rules of Practice and Procedure relating to civil proceedings. It is therefore non-sequitor.”

“It goes without saying that the order of proscription of IPOB is not in any way faulty in law as submitted by Ebun-Olu Adegboruwa,” says Obono-Obla.

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