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Too many political parties in Nigeria, a distraction – UN

The Special Representatives of the Secretary General and Head of the United Nations Office for West Africa, Mohammed Ibn Chambas, on Thursday expressed concern over the number of political parties in Nigeria and some countries in the West African sub-region.

The UN representative described it as a serious challenge which “distracts from the quality of the process.”

He also promised to partake in the review of the 2019 general elections by the Independent National Electoral Commission.

Chambas said this during a courtesy call on the INEC Chairman, Prof. Mahmood Yakubu, in Abuja.

During the visit, the INEC chairman blamed the leadership of the 8th National Assembly for the controversy which characterised President Muhammadu Buhari’s refusal to sign the 2018 Electoral Act (Amendment) Bill into law.

The UN representative told his host that the number of political parties in Nigeria and the West African sub-region was “a serious challenge as it hinders the electorate from taking informed decisions.”

Recall that about 73 political parties fielded presidential candidates during the 2019 general elections in Nigeria.

Chambas said, “So, we came here seeking to be part of that conversation going forward and we will particularly be interested in a number of issues, such as the number of political parties, mode of registration, internal democracy and accreditation of party agents which the chairman of INEC himself has already identified.

“The number of political parties in certain elections in our West Africa and Sahel sub-region has posed a challenge recently and it is not only here in Nigeria that we need to look at the issue of number of political parties and their mode of registration.

“Recently in Senegal, this same challenge was faced; they have found their manner of dealing with it. Next door in the Republic of Benin, when they were confronted with as many as 249 registered political parties, they have also tried to find their way to handle this issue.

“In the last elections in Nigeria, many of you will recall that there were 73 presidential candidates. I am not talking about registered political parties but presidential candidates. With the usual Nigerian people, some people even referred to the ballot paper as tablecloth on account of its length and breadth.

“Of course, that also has its own challenges and for countries in our sub-region, presenting them with such long list of candidates sometimes distracts them from the quality of the process and informed decisions by the electorate.

“So, these are legitimate issues that we want to be part of this conversation that has been initiated by the INEC chairman.

“The UN wants to be part of that preparation. We want to always see in what way we can be useful. How can we support, how can we facilitate, how can we be part of the process which strengthen capacity of INEC to better deliver in future elections?”

While blaming the 8th National Assembly, Yakubu said having taken cognisance of the need for electoral reforms ahead of the last general elections, INEC submitted detailed proposals for the amendment to the nation’s electoral laws to the National Assembly.

The PUNCH reported that Buhari had declined his assent to the bill because it was too close to the 2019 general elections.

According to Yakubu, the process for the amendment to the Electoral Act was delayed by the lawmakers in both chambers of the National Assembly.

Yakubu said, “We look forward to any suggestions that you may have for improving the electoral process in Nigeria as we prepare for future elections. In particular, we need to focus attention on the electoral legal framework among several areas of reform.” The INEC chairman also informed the delegation that the commission had started its review of the 2019 general elections, adding that all stakeholders in the political process would be involved.

Originating Process In Federal High Court Needs Not Comply With Sections 96, 97, And 97 Of Sheriffs And Civil Process Act

The Appellant is a member of SDP, a political party. He contested the primary election of SDP held on 1/10/2018 (the defendant said 3/10/2018 instead) for the selection of its candidate to contest for the position of Governor of Benue State in the general election scheduled to hold in February, 2019.

According to him, he contested against two other candidates and emerged the winner having won the highest number of votes casted. He, later on, heard that his name was substituted with that of the 3rd respondent who did not take part in the primary election. Aggrieved by the turn of events, the Appellant as plaintiff took out an originating summons at the Federal High Court. After hearing counsel on all sides, the trial Court found in favour of the Plaintiff and granted the reliefs sought by him. Aggrieved by the decision, the SDP appealed to the Court of Appeal. Court of Appeal upturned the decision of the trial court. Aggrieved by the decision of the Court of Appeal, the Appellant appealed while the 1st Respondent cross-appealed to the Supreme Court.

THE CROSS APEAL

The grouse of the Cross-Appellant, SDP, among others was that the action was statute barred having been commenced outside 14 days required by section 285(9) of the constitution. The party (Cross-Appellant) argued that the lower court was wrong with it held that cause of action arose on the 6th of November, 2018. That the cause of action arose on the 8th of November, 2018 instead

The court of appeal disagreed with the Cross-Appellant and held that the bar envisaged by section 285(9) of the constitution is not the date of the occurrence of the event, decision or action complained of but the date of discovery and in the instant case the substitution of the Appellant’s candidature was not communicated to him prior to 6/11/2018 even though he got wind that his substitution was done on 3/11/2018 and he took out the originating summons on 8/11/2018. The date of cause of action was therefore the date when the name of the appellant was substituted, not the date when the result of the primaries.

THE MAIN APPEAL

The main issue for the determination of the appeal was whether failure to mark the originating summons as “concurrent” by the registrar of the court was capable of voiding the originating process. The lower court relied on the case of Odu’a Investment Co. Ltd. V. talabi (19970 10 NWLR (pt. 523) 1 and set aside the originating summons because it was not marked as a concurrent writ.

The 1st respondent argued that sections 96, 97, and 98 of the Sheriffs and Civil Process Act was made by the National Assembly by virtue of Item 57 of the Exclusive Legislative List, Part 1 of the Second Schedule to the Constitution which provides that:

“Service and execution in a State of the Civil and Criminal processes, judgments, decrees, orders and other decisions of any Court of law outside Nigeria or any Court of law in Nigeria other than Court of law established by the House of Assembly of that State.”

The respondent counsel referred to the preamble of the Sheriff and Civil Process Act where it would appear that the Act is applicable to all the courts in Nigeria but argued that preamble is not part of the operative part of the statute and will only be resorted to in cases of ambiguity in the substantive provision of the statute. That in this case there was no ambiguity in the provisions of the Sheriffs and Civil Process Act to warrant resort to the preamble.

He argued further the Federal High Court Rules is not subject to the provisions of the Sheriffs and Civil Process Act because the Federal High Court Rules are made pursuant to section 254 of the Constitution which provides that;

“Subject to the provisions of any Act of the National Assembly, the Chief Judge of the Federal High Court may make rules for regulating the practice and procedure of the Federal High Court”

The Supreme Court held that Odu’a Investment Co. Ltd. V. talabi (1997) 10 NWLR (pt. 523) 1 upon which the court of appeal based its decision to nullify the writ is distinguishable from this case. In that case the respondent instituted an action against the appellant and one other person in the High Court of Lagos and the defendant was served in Ibadan, outside the territory of Lagos. There was no endorsement on the writ as required by section 19 Sheriffs and Civil Process Act and the period within which the defendant may enter appearance was stated to be 8 days and no leave of court was sought for service outside jurisdiction.

The submission by counsel for the 1st respondent/cross-appellant that the principal legislation that deals with service of court processes of any court in Nigeria is the Sheriffs and Civil Process Act is therefore not correct as it relates to the Federal High Court. It is only true of the State High Courts and the FCT High Courts because their jurisdiction is circumscribed by the territory each state occupies and the Federal Capital Territory. The service of any process issued by the Federal High Court can be issued under the Sheriffs and Civil Process Act, if such is to be executed outside the territory of Nigeria. Order 6 rule 31 of the Federal High Court Rules interprets outside jurisdiction to mean outside the federal republic of Nigeria. Thus to hold that an Originating Summons which was issued out of the registry of the Federal High Court, Warri which was addressed for service at Abuja outside Delta state where the originating summons was issued from should be nullified because it did not comply with section 97 of the Sheriff And Civil Process Act as this court did in Izeze V INEC (2018) (pt. 1629)110 at 132 did not take cognizance of section 19 of the Act and Order 6 Rule 31. I am of the considered view that the originating summons issued by the Federal Court , Makurdi which is to be served in Abuja cannot be considered to be service outside jurisdiction and therefore does not require to be endorsed as a concurrent writ

The Court set aside the decision of the Court of Appeal and restored the decision of the trial court.

Appearances
T.D. Pepe, Esq. with T. Azoom, Esq. for the Appellant/Cross-Respondent
S. Aruwa, Esq. with him Messrs P. T. Soje, E. E. Mmeni, M. I. Balogun and A. I. Idris for 1st Respondent/Cross-Appeallant
AyoolaAjayi, Esq for 2nd Respondent
O. Ogundiran, Esqfor 3rd Respondent For Respondent(s)

The symbolism of June 12

Those who argue that marking June 12 as Nigeria’s Democracy Day is inappropriate, and should be left to the Yoruba of the South-West Nigeria alone, quite forget that the presidential mandate given to Bashorun MKO Abiola was pan-Nigerian.

An Op-ed article in The Guardian newspaper, written by the late businessman, Onwuka Kalu, during the heat of the agitation, was the first attempt to identify the actualisation of the June 12 mandate as a Yoruba cause, despite Abiola winning even in the ward of Bashir Tofa, his opponent, in Kano. That was disgraceful.

Yet, the unifying effect of celebrating June 12 as Nigeria’s Democracy Day cannot be overemphasised. This is the day that Nigerians, from all socio-economic strata, regional, religious or ethnic background, chose to stand like one man, politically.

It didn’t matter to the majority of the electorate that the presidential candidate, Abiola, and his running mate, Baba Gana Kingibe, were both Muslims. Nigerian Christians only saw their politics, and never thought too much of their religion.

And, if you took a roll of the stalwarts who fought for the mandate, you will discover that a majority of them were Christians. Their Muslim compatriots also saw no need to brandish a religious totem.

Now, those who put forward the argument that the Yoruba were in the vanguard of the crusade must be reminded of certain political history of Nigeria: The South-West has been the traditional hub of Nigeria’s progressives, the civil society and the media.

And when you consider Navy Commodore Ebitu Ukiwe, Navy Captain Ndubuisi Kanu, Campaign for Democracy’s Chidi Ubani, who are of the South-East extraction; Air Commodore Dan Suleiman, and former Kaduna State Governor Balarabe Musa, of Northern extraction, and Prof Julius Ihonvbere, of the South-South, nothing suggests Yoruba in their names.

Maybe, one should add the social curve by recalling that the prestigious Island Club of Lagos, numbered Sir Louis Odumegwu Ojukwu, an Igbo, and Ernest Seesi Ikoli, an Ijaw, in its foundation members in 1943.

And they never felt at any disadvantage by joining a social club whose membership is predominantly of the Yoruba stock, and whose base was in a predominantly Yoruba environment.

So, to all intents and purposes, the gesture of President Muhammadu Buhari to declare June 12 every year a Democracy Day is apt, and justified. It is time for Nigeria to adopt such a day to celebrate the values of democracy.

On that day, Nigerians are expected to salute their own courage and insistence to operate a democratic society. They should fly buntings, join parades, make music, dance and celebrate on the streets throughout Nigerian cities, towns and villages.

When you remember the fervour with which the military mark the Armed Forces Remembrance Day every January 15, you will understand the need to celebrate Democracy Day in Nigeria. The Armed Forces Remembrance Day reminds Nigerians of military men and women who died so that Nigeria will remain a united nation. The solemnity defines the dignity of the occasion.

Marking June 12 as Democracy Day every year is a good way to remind those who contributed to scuttling the mandate that democracy is the preferred political option that Nigerians have chosen.

It should also affirm to the like of National Electoral Commission’s Prof Humphrey Nwosu, and other patriots, who chose to be truthful and faithful to the democratic process, that their sacrifices were not in vain.

By marking this day as Democracy Day, the people of Nigeria will also be encouraging their compatriots, who are so inclined, to always tread the noble path of patriotism in any matter that concerns Nigeria.

The essential symbolism of June 12 as Democracy Day is that Nigerians now have a ritual that ties together all the democratic institutions, like the constitution, the three arms of government, political parties, the Independent National Electoral Commission, voting, and the electorate.

It further explains, and entrenches, democratic values in Nigeria’s politics. President Buhari should therefore be applauded; it will be bad manners indeed for anyone to chastise him for doing right by recognising a notable milestone on Nigeria’s journey into democracy.

This should significantly help to persuade Nigerians who argue that Nigeria is probably still a pseudo-democratic system that is still being run by the military. You may actually agree with their argument that the 1999 Constitution is a military decree signed by a serving military Head of State, Gen Abdusalami Abubakar, when you remember that the military rule by decrees.

This indeed puts a lie to the Preamble to the Constitution, which claims that, “We the people of the Federal Republic of Nigeria: having firmly and solemnly resolved… Do hereby make and give to ourselves the following Constitution:”

While it is true that Nigerians agitated and insisted on a return to civil rule, and a termination of the military regime, and a Constituent Assembly was set up by Gen Sani Abacha, who was the immediate predecessor of Abubakar as military Head of State, the 1999 Constitution is the handiwork of a few, huddled in some dark recesses, known only to the military who appointed them.

Sceptical Nigerians point to some realities that will be too significant to ignore: There is no doubt that the retreating military deliberately looked for one of their own, Olusegun Obasanjo, to take over the reins of government, and give them a soft landing.

Some translate this to mean that the espirit de corps between military men, in and out of uniform, is probably the grundnorm of the Fourth Republic. In other words, the current democratic dispensation can only survive if the Nigerian military agree.

It was widely rumoured that when former President Goodluck Jonathan was seeking re-election, he went to solicit the support of former military President Ibrahim Babangida, who was reported to have boasted, “Most of the soldiers you see today are boys to our own boys.”

You will observe that apart from President Obasanjo’s retirement of military officers who had held political offices, no finger was lifted to prosecute any military officer. The only interrogation anyone of them had was the velvet glove tease by the Truth and Reconciliation body headed by former Supreme Court Justice, Chukwudifu Oputa.

The persecution or prosecution of former Chief of Army Staff, Gen Ishaya Bamaiyi, and Major Hamza al-Mustapha, who was the Chief Security Officer to Abacha, was initiated by the military before they handed over to Obasanjo.

The other significant issue is that whereas former President Obasanjo, who took over from the military, was a former military officer, his deputy, and Vice President Atiku Abubakar, also retired from the paramilitary Nigeria Customs Service.

At one time, Col Ahmadu Ali emerged as Chairman of the then ruling Peoples Democratic Party, while a major fixture of post-Obasanjo government was Brig Gen David Mark, who was Senate President.

President Buhari’s emergence may also be a part of the plan of the military to hold a major stake in Nigeria’s democracy. And if you look well, you will notice that a significant number of politicians in the federal and state tiers of government in Nigeria were military men.

Though sceptics wonder how much democracy is in Nigeria nowadays, the ritual of marking Democracy Day should entrench democratic values in Nigerians, and tell the military that Nigeria is sold to democracy.By Lekan Sote

Otiosity Of Proceedings And Decrees For Restitution Of Conjugal Rights In Nigeria: The Need For The Abolition Of This Matrimonial Remedy

INTRODUCTION

The institution of marriage under matrimonial laws the world over is a union which imposes upon each of the parties a number of marital obligations or duties which may collectively be referred to as consortium. Some of these imposed duties or corollaries of marriage includes the right to live together as husband and wife, the right to have the marriage consummated, sexual fidelity, mutual defence amongst others. The law provides remedies in certain cases where either of the spouse fails or refuses to fulfil one or more of these marital obligations. For Instance, if a party to a marriage refuses to consummate the marriage or commits adultery, the other party may present a petition under Section 15 the Matrimonial Causes Act Cap M7 Laws of the Federation of Nigeria 2004 for dissolution of the marriage.  It follows therefore that after a marriage has been validly contracted, if any of the parties to the marriage without reasonable excuse refuses to cohabit with, and render conjugal rights to the other, then the aggrieved party has the legal right to file a petition for a decree of restitution of conjugal rights. This matrimonial remedy is provided for in Section 47 of the Matrimonial Causes Act.

The object of this paper is to appraise the concept of restitution of conjugal rights in Nigeria, the abolition of the proceedings in relation to restitution of conjugal rights in England and proffer reasons why the practice in Nigeria is futile, anachronistic and should be Jettisoned.

THE CONCEPT OF RESTITUTION OF CONJUGAL RIGHTS IN NIGERIA

Section 47 of the Matrimonial Causes Act 2004 provides as follows:

A petition under this Act by a party to a marriage for a decree of restitution of conjugal rights may be based on the ground that the parties to the marriage, whether or not they have at any time cohabited, are not cohabiting and that, without just cause or excuse the party against whom the decree is sought refuses to cohabit with, and render conjugal rights to the petitioner.

The relief is one which is common and appropriate in cases where matrimonial cohabitation has ceased for one reason or the other and one of the parties is desirous of resuming cohabitation. However, this is not to say that the remedy is not available where both parties never cohabited at any time after the marriage.  Section 47 makes the remedy available whether or not the parties have ever cohabited.

The Court after hearing the petition of the aggrieved party may on being satisfied that the party against whom the decree is sought has without just cause or excuse refused to render conjugal rights to the petitioner, make a decree of restitution of conjugal rights.

However, the Court will not make a decree for restitution of conjugal rights unless it is satisfied that the petitioner genuinely desires cohabitation. Sincerity is therefore a crucial element. By and large to succeed in an action for decree of restitution of conjugal rights the petitioner must establish the following as provided under Section 49 of the Act:

  1. That he or she sincerely desires conjugal rights to be rendered by the respondent and is willing to render conjugal rights to the respondent.
  2. That a written request for cohabitation, expressed in conciliatory language, was made to the respondent before the institution of the proceedings, or that there are special circumstances which justify the making of the decree notwithstanding that such a request was not made

It is important to state that the above pre-conditions are very critical to the grant of a petition for a decree of restitution of conjugal rights and where a petitioner fails to establish compliance with the above preconditions, the court will not make the decree, and where it does, such a decree will be set aside on appeal.

Upon hearing a petition for restitution of conjugal rights, the Court can only order cohabitation but cannot enforce sexual intercourse. Thus, the decree cannot be granted where the respondent already lives with the Petitioner but refuses to have sexual intercourse with the petitioner.

Notably, a decree for restitution of conjugal rights cannot be enforced by attachment. See Section 52 of the Act. Also as rightly noted by Professor Itse Sagay in his book (Nigerian Family law, Principles, Cases, Statutes and Commentaries, Malthouse Press Ltd, 1999 Page 122) refusal to comply with the decree will not constitute contempt of court, although such a refusal to comply with the decree for one year will constitute a ground for dissolution of the marriage under Section 15 (2)(g) as the respondent will be deemed to have deserted the Petitioner. Further the Petitioner cannot forcibly adduct and compel the respondent to cohabit with him or her in order to enforce the Court’s decree for restitution of conjugal rights. Such forcible compulsion may render the petitioner liable to damages in an action in tort or for the breach of the Respondent’s fundamental rights.

One may ask out of curiousity, of what utilitarian value is a decree for restitution of conjugal rights if same cannot be enforced either by attachment or compulsion and where refusal to comply with the decree will not constitute contempt of court?. The Petitioner is simply left with a decree which enforcement is dependent solely on voluntary compliance which invariably will be hardly obtained since it is very unlikely that a respondent who ignored the petitioner’s written request in conciliatory language to resume cohabitation would voluntarily comply with a toothless decree of Court for restitution of conjugal rights. The Petitioner would therefore have secured a pyrrhic victory having further strained the marital relationship by instituting an action against the respondent to obtain a decree that cannot be enforced. However, this will be discussed in details anon.

THE PRACTICE IN ENGLAND AND ITS ABOLITION IN 1970

Restitution of conjugal rights was a relief available under common law to a deserted spouse in the ecclesiastical courts. In the ecclesiastical Courts desertion was not a matrimonial offence thus, the only remedy available to a deserted spouse was to obtain a decree of restitution of conjugal rights compelling the other spouse to resume cohabitation with the deserted spouse. Failure to comply with the decree was punishable by excommunication.

In 1813, the punishment of excommunication for failure to comply with a decree of restitution of conjugal rights was abolished and substituted with sentence of imprisonment for a period not exceeding six months by the Ecclesiastical Courts Act 1813.

Later in 1884, with the enactment of the Matrimonial Causes Act 1884, failure to comply with a decree of restitution of conjugal rights ceased to be punishable by imprisonment. Rather, such failure to comply was deemed to be desertion (Statutory Desertion) which entitled the deserted spouse the right to an immediate decree of judicial separation and if coupled with the husband’s adultery allowed the wife to obtain an immediate divorce.

The Matrimonial Causes Act 1923 abolished the double standard in English divorce laws and equalised the rights of divorce of husband and wife, giving the wife the right to divorce her husband on the ground of adultery alone so that it thereafter became unnecessary for her to rely on the husband’s failure to comply with a decree for restitution of conjugal rights in order to obtain a divorce.[1] In other words, it was no longer necessary for a wife to approach the courts for a decree of restitution of conjugal rights as a step to establish desertion in other to obtain sufficient grounds to succeed in an action for divorce.

The Supreme Court of Judicature (Consolidation) Act 1925 repealed the Matrimonial Causes Act 1884. Failure to comply with an order of restitution of conjugal rights continued to be a ground for judicial separation but was no longer deemed to constitute desertion.

In 1969, The Law Commission laid before the parliament a proposal for the abolition of any proceedings or action for a decree of restitution of conjugal rights, pursuant to which the Matrimonial Proceedings and Property Act 1970 was enacted abolishing the matrimonial remedy of restitution of conjugal rights as the action was seen as outdated and rarely used. See The Law Commission (Law Com. No. 23) Proposal for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights, 1969.

It is noteworthy that shortly after the abolition of this remedy in England, other territories in the United Kingdom, Australia and Africa followed suit and abolished the practice. It was abolished in Australia in 1975, South Africa in 1979, Scotland in 1984, and Ireland in 1988.

THE OTIOSITY OF THIS REMEDY AND THE NEED FOR ITS ABOLITION IN NIGERIA

The practice of restitution of conjugal rights is a complete waste of time, and the decree which the Courts are empowered to make by virtue of the extant provision of Section 47 of the Matrimonial Causes Act is otiose. The decree by its very nature is unenforceable being a decree intended to compel parties to maintain personal relationship. The futility of such a decree is further amplified by fact that it cannot be enforced by attachment. See Section 51 of the Act. It is submitted that a party cannot be compelled by a decree of Court to render conjugal rights to their spouse whether or not such a party has just cause for refusal to do so. Being a matter involving personal relationship, a party cannot be compelled to continue personal relationship with another against his/her wish especially where such relationship carries with it a significant decree of intimacy such as cohabitation and other concomitant incidents of consortium.

It is noteworthy that the decree of restitution of conjugal rights is aimed at reconciling estranged spouses and saving the marriage from total collapse. This can be gleaned from the provision of Section 49 which requires as a condition for grant of the decree that the petitioner sincerely desires conjugal rights to be rendered by the respondent and is willing to do same and further that the petitioner has made a written request in conciliatory language to the respondent before instituting the suit. However, it is ironical that this is sought to be achieved through litigation which by its adversarial nature increases acrimony between the parties to the proceeding. Where a respondent has been served with a written request as required by Section 49(b) and he or she refuses to resume cohabitation with the petitioner, it serves no ‘reconciliatory purpose’ to compel such a party by a decree of court to resume cohabitation.

It may be argued that there may be the need to retain the practice since a party can petition for dissolution of the marriage under Section 15(2)(g) where the other party fails to comply with a decree for restitution of conjugal rights made under the Act for a period of not less than one year. However, this argument is untenable as that ground for dissolution is supernumerary and needless. Firstly, the aim of proceedings for restitution of conjugal rights is to salvage the marriage and not to destroy it. Thus, a party cannot be said to ‘sincerely desire’ cohabitation if the aim is to obtain a ground to dissolve the marriage. Importantly, it is submitted that the refusal to render conjugal rights to the requesting party upon a written request by that party in conciliatory language is enough communication of the other party’s unwillingness to resume cohabitation with the requesting spouse and such a blatant refusal for a continuous period of one year is enough to establish desertion which is a ground for dissolution of the marriage under Section 15(2)(d). It is therefore totally otiose to petition for a decree of restitution of conjugal rights where the other party has clearly exhibited an unwillingness to resume cohabitation.

Notably, it cannot be reasonably argued that a petition for restitution of conjugal rights can ever be filed with a sincere intention at reconciliation considering the adversarial nature of litigation and the concomitant acrimonies and resentments that it breeds. These petitions are anachronistic devices sanctioned by law and wilily adopted to achieve concealed motives other than reconciliation. Sometimes the petitions are filed to enforce demands for maintenance or to secure a ground for divorce.

Penultimately, a decree for restitution of conjugal rights in Nigeria being an unenforceable order of Court, its usefulness solely depends on voluntary compliance which may be hardly obtained. This regrettable situation is further exacerbated by that fact that no sanctions can be imposed in the event of breach. This simply places the Courts in a situation of utter impuissance as it stands by helplessly like a toothless bull dog and watches its orders being brazenly violated having been clothed with the power to make the order but deprived of the concomitant power to enforce same.

Unfortunately, the unenforceability of a decree for restitution of conjugal rights detracts from the inveterate principle and practice of law that orders and judgments of court must be obeyed and are enforceable as the Courts do not act in vain. See Muhammed Ibrahim v. Olatunji Ogunleye  & Ors (2012) 1 NWLR (Part 1282) 489.

In J.O Anakwenze v. Louis Aneke & Ors (1985) 1 NWLR (Part 4) 771 at Page 779, the Supreme Court Per Obaseki JSC pronouncing on the inherent and unimpugnable power of a Court to enforce its judgment held as follows:

One of the attributes of a court of law is its competence to enforce its judgment…It should be remembered that the term “judicial powers of the Federation” include powers to enforce a decision or judgment or order given and when section 6(1) of the Constitution of the Federal Republic of Nigeria, 1979 vested judicial powers of the federation in the Court of Appeal  being one of the Courts established for the federation, it vested in it that inherent power to execute its own judgments and orders

Also in Government of Gongola State v. Tukur(1989) 4 NWLR (Part 117) 592 at Page 602 the Supreme Court as follows:

Judgments and orders are usually determinations of rights in the actual circumstances of which the court has cognizance, and give some particular relief capable of being enforced.

The Supreme Court further held at page 608 Para. H that a judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person. Unfortunately, by Section 52 of the Matrimonial Causes Act, the decree for restitution of conjugal rights shall not be enforced by attachment. Further, the point has been made that a respondent who violates the decree cannot be cited for contempt neither can he or she be compelled to resume cohabitation with the petitioner.

The dignity and honour of the Courts cannot be maintained if its orders and judgments are treated contemptuously and without respect. A toothless order of court which actualization depends solely on voluntary compliance will only lead to diminution of the vast powers of the Court, the image of the Court and exposure of its authority to ridicule and grave disrepute.

Finally, a serious issue to be considered is the constitutionality of a decree for restitution of conjugal rights. Under the Constitution of the Federal Republic of Nigeria 1999 (As amended) every person is entitled to his personal liberty. See Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999 (As amended). Further, the privacy of citizens is guaranteed and protected under Section 37 of the Constitution. A person who has left the society of another (whether or not for just cause) and has clearly exhibited an unwillingness to resume cohabitation with such a person cannot be ordered or compelled to do so. Such an order will amount to a violation of the person’s right to personal liberty and privacy. The fact the parties are married is of the moment and cannot be a justification for making such an order. A party cannot by the application of marriage be said to have lost his or her constitutionally guaranteed right to personal liberty or privacy to any extent. Once a person has exhibited a firm resolve not to live with their spouse even before the marriage is dissolved, such a person is not obligated to give a just cause or excuse for doing so, and the Courts cannot interfere in such a person’s private life and/or personal liberty by ordering them to render conjugal rights to the deserted spouse.

What is more, it is the Courts that determines what amounts to just cause or excuse, and in so doing the Courts will usually apply the objective test. It is simply anachronistic and grossly unconstitutional to compel a person to resume cohabitation with another simply because the reason they have given for deserting their spouse is not just or objective. Being a matter relating to cohabitation and/or consortium which severely affects a person’s privacy due to the nature of intimacy involved, the reason given for the withdrawal cannot be subject to any other person’s assessment of what is reasonable or just cause. This is why the Courts cannot interfere.

CONCLUSION

Marriage ordinarily carries with it a high degree of intimacy and emotional connection. When this has been lost and a spouse withdraws from the society of the other, compelling the withdrawing spouse to resume cohabitation with the aggrieved spouse cannot restore this connection or the connubial felicity that once existed. The lost connubial bliss cannot be revived by a decree which compels parties to cohabit. This only serves to heighten the acrimony between the parties and annihilate whatever hope there is to salvage the dying marriage. Litigation and court orders do not breed peace, intimacy, affection or happiness and it is certainly not an effective way of reconciling parties.

What is more, a court should not be clothed with jurisdiction to entertain and decide a cause if it is deprived of the concomitant jurisdiction to enforce whatever judgment it delivers. There is need to maintain the sanctity and inviolability of the Courts and their orders and as stated earlier a toothless order of court which actualization depends solely on voluntary compliance will only lead to diminution of the vast powers of the Court, the image of the Court and exposure of its authority to ridicule and grave disrepute.

Further, the practice can hardly survive the test of constitutionality as it amounts to a violation of a party’s right to personal liberty and privacy to compel them to resume cohabitation with another against their wish.

The concept is a vestige of ancient times. It originated from ancient England and was imported into our laws as a result of colonization. Presently the practice may be considered as anachronistic and retrogressive and even though it is intended to reconcile spouses, it has lost its utility and significance in modern society. This is why in 1969, The Law Commission laid before the parliament a proposal for its abolition, pursuant to which the Matrimonial Proceedings and Property Act 1970 was enacted abolishing it in England as the action was seen as outdated. Shortly after the abolition of this remedy in England, other territories such as Australia, Scotland, Ireland and South Africa who like Nigeria borrowed the practiced from England all abolished the practice. Unfortunately, close to 50 years after its abolition in England, this practice is still extant in Nigeria.

It is finally submitted that the practice should be abolished as same is unconstitutional, retrogressive and totally otiose as a decree for restitution of conjugal rights is of no utilitarian value to the petitioner. However, in order to maintain the laudable intention of the practice which is to salvage marriages from total collapse, a provision may be made empowering the Court to appoint one or two persons to act as mediators with the aim of seeking to reconcile the parties and securing the freewill return of the deserting spouse.

Legal Technology And Human Lawyers – What Does The Future Hold?

At the recent Legal Innovation and Tech Fest, held in Johannesburg in June, delegates were treated to a wide array of technology and innovation aimed at improving the delivery of law in the fourth industrial revolution.

Speaker upon speaker highlighted the important role that technology is going to play in the future delivery of legal services and how the landscape is changing at a rapid pace. The words “disruption” and “change” were on everybody’s lips and the air was abuzz with excitement.

There is no doubt that technology will change law. I could not help but wonder, however, whether technology will enhance the effectiveness of human lawyers or whether it will gradually and ultimately replace human lawyers altogether.

Modern day technological advancements have one common denominator, which is to enable tasks to be performed more effectively and efficiently. It’s all about doing things quicker and better. At a basic level, the clever minds that write programs and develop the systems, applications, and tools that we rely on daily to manage our professional and personal lives start off by analysing current systems before identifying problems within them. They then conceptualise improved systems which directly address the problems, and in so doing, they develop and are able to offer viable solutions that are capable of being commercialised.

Because such businesses are often start-ups, they are agile and they are able to change course as and when required. They think outside the box and they try out different things until they find solutions that actually work and are practical and implementable.

Having technology that can assist human lawyers to perform various tasks quicker obviously gives rise to great benefits, which can often be quantified in financial terms for the lawyers themselves and for their clients. But human lawyers will not become obsolete because of technology. In fact lawyers, supported by the right technologies, are going to become even more relevant in the future. What is likely to change over time is their function or role as technology will take away certain tasks, requiring them to redefine their value to clients.

We are likely to see lawyers becoming more specialist and business centric in that they will evolve to become business advisors as opposed to lawyers in the traditional sense. Technology will enable lawyers to become true business partners to their clients as it will unlock time that can be used for lawyers to give more strategic advice to clients. In-house lawyers will play a more strategic role and law practices will be required to become more agile and to align closely with their client’s strategies if they are to add tangible value.

While clients will benefit from increased efficiencies and a reduction in legal costs, they will still rely on advice from human lawyers. How that advice will be delivered is where technology will play a pivotal role. Lawyers are going to be able to research quicker using technology. They will be able to communicate quicker and the efficiencies that technology will create for them will be passed on to their clients. Clients will in turn be able to process advice quicker and, where required, implement such advice in a manner and at a time when the greatest impact will be realised for the benefit of stakeholders.

In her keynote address at the Legal Innovation and Tech Fest, Jorden Lam, General Counsel at Hesta in Australia, highlighted the importance of effective teams for the work we do as external or in-house lawyers. While the technology and innovation bubble is exciting and full of potential, we must not forget that at the heart of any organisation are its people. Even with the best technologies in place, people will still be central in ensuring that organisational goals and objectives are met.

Munya Gwanzura is an in-house lawyer, commercial mediator and thought leader.

Internet Security: A Case For A Unified And Specialized Institutional Framework In Nigeria

Internet crimes are arguably the most trending crimes in the world today. This owes greatly to the global paradigm shift from old-school style of transactions to digital/paperless transactions traceable to the fast-growing and apparently unstoppable technological advancement all over the world. Contrary to the innocuous brain behind its innovation, the internet has become the largest forum for the perpetration of various criminal activities, thereby demanding urgent legal and institutional security attention.

It is apposite to underscore that unlike the developed countries, most developing countries of the world today still battle with the technical know-how to address the growth and escalation of these trending crimes. Nigeria which happens to be amongst the countries reportedly topping the list of cybercrime-infested countries, had only formally criminalized these acts in 2015 vide the Cybercrime Act. Despite the criticisms of the Act, its enactment has been widely celebrated by various stakeholders including academic writers and law enforcement agencies as a milestone achievement in the war against internet criminals in Nigeria. This research work however weighs the sufficiency of the Act to curb cybercrimes in Nigeria vis-à-vis the present cyber-security institutional framework and finally makes a case for a robust institutional framework for fighting cybercrimes in Nigeria as the winter is here already and the impending world war appears to be a cyber-war[1]

Keywords: Crime, internet, cybercrime, cyber-security, institutional framework

Introduction                              

Internet crime has been defined as any breach of criminal law that involves the knowledge of computer technology for their perpetration, investigation or prosecution[2]. It is an offence which involves the computer as a tool and/or the object of the crime[3].  Cyber security or prevention is the act of restricting, suppressing, destructing, destroying, controlling, removing, preventing the occurrence of cyber-attacks, in either computer systems (both hardware and software systems), networks and data, or any other electronic devices capable of being a computer[4]. In as much as traditional crimes like robbery and armed robbery are slowly fading away, it is doubtful whether such reduction can be safely traced to the vigilance and gallantry of local security agents. It is not hazarding to guess that the gradual reduction in those traditional crime cases traces chiefly to the discovery by these criminals of the relative advantages and opportunities availed by the internet, hence the need for an upgrade in tactics. The war against cybercrimes therefore is not a war of bullets, rifles, bombs and other diabolic weapons. Cyber security requires the availability of both legal and formidable institutional frameworks. A system devoid of a strong cyber-security institutional framework renders its cyber laws toothless before the menace of internet crimes. This research work comprises of four segments:

  1. A Cursory Look at the Nigerian Cyber Crime Act and its Cyber-Security Institutional Framework
  2. Other Cyber-Security Institutional Framework in Nigeria
  3. International Comparative Analysis
  4. Comments/Recommendations
  5. A Cursory Look at the Nigerian Cybercrime Act and its Cyber-Security Institutional Framework

The Cybercrimes (Prohibition, Prevention) Act, 2015 is the current law specifically criminalizing internet crimes in Nigeria. The Act is divided into eight parts and contains 59 sections. One of the positive achievements of the Act is the comprehensive codification and punishment of all such acts and omissions that amount to internet crimes. These include offences such as unlawful access to a computer, system interference, cyberstalking, cyber terrorism, cybersquatting, child pornography, phishing, cyber forgery, spamming, etc.[5] With the designation of these offences, possible contentions that may arise from the fundamental right of a person to be tried only of an offence known to law have been put to rest.[6] Section 3 of the Act empowers the president to designate certain computer systems or networks as critical national information infrastructure. These are computer systems or networks whose incapacity or destruction of, or interference with, would have a debilitating impact on the security, national or economic security, national public health and safety of the nation. Section 5 of the Act goes ahead to prescribe a ten years imprisonment (without the option of fine) for any form of cyber offence committed in respect of the designated critical national information infrastructure. Another landmark provision of the Act is section 39 (a) which empowers the court to make an order for the interception of any electronic communication, where there are reasonable grounds to suspect that the content of such communication is reasonably required for the purposes of a criminal investigation or proceedings[7]. This will surely be of great assistance to cybercrime investigators and prosecutors as it relates to the provision of relevant evidence requisite for the successful prosecution of cyber criminals. There are quite a number of other innovations introduced by the Act but attention shall now be diverted to a discussion on the cyber security institutions contained in the Act for its proper implementation:

  1. Office of the National Security Adviser

The National Security Advisor is a senior aid in the cabinet of the president of Nigeria who serves as the chief advisor to the president on national security issues. The office of the NSA is responsible for the overall coordination and enforcement of the Act. The office is charged with the following responsibilities:[8]

  1. To provide support to all relevant security, intelligence, law enforcement agencies and military services to prevent and combat cybercrimes in Nigeria.
  2. To ensure formulation and effective implementation of a comprehensive cyber security strategy and a national security policy for Nigeria.
  3. To establish and maintain a National Computer Emergency Response Team responsible for managing cyber incidences in Nigeria.
  4. To establish and maintain a National Computer Forensic Laboratory and coordinate utilization of the facility by all law enforcement, security and intelligence agencies.
  5. To build capacity for the effective discharge of the functions of the relevant agencies under the Act or any other law on cybercrime in Nigeria.
  6. To establish appropriate platforms for public private partnership.
  7. To coordinate Nigeria’s involvement in international cyber security cooperation.

As comprehensive as the list above appears, it is unfortunately doubtful whether the provision has been given adequate implementation by the NSA despite the fact that the Act came into force since 2015.

  1. Cybercrime Advisory Council

This is a body set up under section 42 (1) of the Cybercrimes Act and comprises of one representative each from the ministries, departments, agencies and associations contained in the First Schedule to the Act. The representatives appointed must be officers not below the Directorate cadre in the public service or its equivalent. The council is to meet four times in a year and the meetings are to be convened and presided over by the national security adviser[9]. The duties of the council inter alia includes the creation of an enabling environment for members to share knowledge, experience, intelligence and information on a regular basis, the provision of recommendations on issues relating to the prevention  and combating of cybercrimes and the promotion of cyber security in Nigeria[10]. Apart from the fact that the impact of this council is yet to be felt in the war against cybercrimes in Nigeria, the researcher extrapolates that the criterion for qualification of its membership is unfair as it appears to shut the door against knowledgeable persons who are below the directorate cadre in the public service or its equivalent. The role of the council is highly advisory and as such, profound knowledge of cyber security matters should be the basic criterion for the qualification of its membership.

  1. The Federal High Court

Section 50 of the Act vests the Federal High Court with the jurisdiction to try the offences contained in the Act. All offenders arrested pursuant to the Act are to be prosecuted at the federal high court where the matters shall be given an accelerated hearing[11]. It is however not clear whether the jurisdiction of the federal high court in this connection is exclusive. There is no place in the Act where it was the stated that the federal high court has exclusive jurisdiction over the offences contained in the Act. It is a canon of statutory interpretation that clear and unambiguous words are to be given their ordinary meaning[12]. The absence of the word “exclusive” implies the intention of the draftsman that the jurisdiction is not limited to the federal high court alone[13]. It follows that the state high court may also have jurisdiction to entertain such offences since it is a court of unlimited jurisdiction.[14] This line of thought seems to have been favoured by the former chief judge of Lagos state during the inauguration of the Special and Sexual Offences Court in 2018, when the learned judge reportedly remarked with respect to offences prosecuted at the Lagos State High Court, that the Special Offenses Court will “exclusively handle corruption and financial crime cases including cybercrime and other related offences.”[15] Therefore, although in practice, the prosecution of cyber offences is taken to the federal high court there is nothing in the Act that specifically shows that the jurisdiction is exclusive.

  1. Financial Institutions

Financial institutions are also amongst the institutions envisaged under the Act in the fight against cybercrimes. What is basically required of the financial institutions is to obtain a proper identity of their customers before executing or carrying out electronic financial transactions with them[16]. It is worthy of note here that the scope of term financial institutions as used under the Act is wide and goes beyond banks to include legal practitioners, hotels, supermarkets, casinos, bureau de change, insurance institutions, to mention but a few[17]. Failure of a financial institution to comply with the above requirement is an offence which attracts the fine of five million naira[18].

  1. Service Providers

The Act apparently provides a twofold duty for service providers in relation to the fight against cybercrimes. First, service providers are required to preserve, hold and retain all traffic data and information of its subscribers. Second, the service providers are to disclose such data or information where requested for by any law enforcement agency or on its own initiative, for the purposes of the identification, apprehension and prosecution of offenders under the Act[19]. It is perhaps pursuant to this provision that the Economic and Financial Crime Commission (EFCC) wrote to Mastercard Inc. and Visa Inc. requesting that it be furnished with the transaction history or details on the credit cards used by a popular Nigerian musician, Azeez Fashola (Naira Marley) in respect of an investigation for the offences of identity theft and credit card fraud[20]. It is apposite to equally underscore that failure on the part of a service provider to comply with its duties under the Act is an offence attracting a fine of not more than ten million naira[21].

  1. Office of the Attorney-General of the Federation

The Attorney-General of the federation is the chief law officer of the federation and is required under the Act to strengthen and enhance the existing legal framework so as to ensure[22]:

  1. the conformity of Nigeria’s cybercrime and cyber security laws and policies with regional and international standards.
  2. the maintenance of international cooperation required for preventing and combating cybercrimes and promoting cyber security; and
  3. the effective prosecution of cybercrimes and cyber security matters.

The powers of relevant law enforcement agencies to prosecute offences under the Act are limited to the power of the Att. General to take over or discontinue any such criminal proceedings[23]. It appears that the power to take over and discontinue criminal proceedings under the Act is not limited to the Att. General of the Federation alone. Section 47 of the Act provides that subject to the powers of the Attorney General, relevant law enforcement agencies shall have the power to prosecute offences under the Act. In as much as section 41 of the Act specifies the functions of the Att. Gen of Federation in relation to the Act, it is not the appropriate section to look at when considering the powers of the Att. General so as to be read together with section 47 of the Act and to limit the application of the latter section to the Att. General of the Federation alone[24]. If it was the intention of the draftsman to limit that section to the AG federation alone, the provision would have clearly stated same[25]. It is no longer plausible to argue that the Att. Gen of a state cannot exercise his powers in relation to offences contained in an Act of the National Assembly where, by the tenor of the Act, it is intended to operate as a state law[26]. In any case, this argument will however partially stand on the outcome of the controversy surrounding the jurisdiction of the state high courts to try the offences contained in the Act and whether by the tenor of the Act, it is intended to also operate as a state law.

  1. Law Enforcement Agencies

Section 58 of the Act defines “law enforcement agencies” to include any agency for the time being responsible for the implementation and enforcement of the provisions of the Act. They are responsible for the investigation of cybercrime complaints and prosecution of the suspects. They have several powers under the Act including the powers to make an arrest, search any person or place, request from a service provider the data or information of any of its subscribers required for the purposes of a criminal investigation, etc. One problem to underscore here is that there are several law enforcement agencies in Nigeria but the Act does not specify which particular agency is to implement the Act. In this connection, it seems that the Act intends that all the several law enforcement agencies in the country shall have similar powers to enforce or implement the Act as regards investigation and prosecution of cybercrimes. Section 41 (3) of the Act provides that “All law enforcement, security and intelligence agencies shall develop requisite institutional capacity for the effective implementation of the Act”. However, section 50 (3) of the Act talks of “the Commission” as regards bringing proceedings under the Act before the federal high court for expedited hearing. The Act does not define who “the Commission” is and therefore creates room for one to think whether the Economic and Financial Crimes Commission is the appropriate body envisaged by the Act to implement its provisions. Although in practice, it is usually the EFCC that pursues the implementation of the Act, there is still some confusion as to the appropriate body responsible for its implementation, and this informs part of the reasons why this research work calls for a unified and specialized institutional framework.  Research has revealed that one of the basic problems hampering the creation of a special cybercrime agency in Nigeria is the confusion as to whether the agency should be independent of other agencies or under a particular agency. While other institutions like the National Information Technology Development Agency (NITDA) claims that the agency should be instituted under it, the EFCC also wants the agency to be incorporated into its commission[27]. It is perhaps owing to this confusion that the Act seems not to focus on any particular agency but instead requires each of the agencies to develop its own institutional capacity for the implementation of the Act.

  1. Other Cyber Security Institutional Framework in Nigeria

Apart from the institutions discussed above it is interesting to note that there are other institutions established in Nigeria for the specific purpose of tackling cybercrimes. In 2004, the Nigerian Federal Government established a cybercrime working group known as the Nigerian Cybercrime Working Group (NCWG) with the purpose of embattling the hydra-headed monster incidence of cybercrime. The NCWG is an inter-agency made up of all key law enforcement, security, intelligent and ICT agencies of the government plus the private organization in ICT sector. The duty of the working group includes: engaging in public enlightenment programs amongst existing agencies, providing technical assistance to the National Assembly in cybercrime, and in the drafting of the cybercrime act, laying the groundwork for cybercrime agency that will eventually emerge to take charge of fighting cybercrime in Nigeria[28]. However, it appears that the basic goal of the group was to produce a cybercrime bill[29]. Nothing has been heard of the group since the passage of the cybercrime bill into an Act in 2015 and the Act also does not recognize the existence of the group. Another institution to consider is the Nigerian Cyber Security Incident Centre (NCSIC). This is a virtual facility for online control of incidences of cybercrimes. The centre is established under the NCWG pursuant to the National Cyber Security Initiative. It is designed as the first ever national repository for all computer related incidents in the country. Victims of cybercrimes could log on and report their cases[30]. The problem however is the doubt cast upon the existence of this centre and the NCWG after the passage of the Cybercrimes Act in 2015[31]. It is not hazarding to guess that their silence all this while could trace to governmental neglect and lack of maintenance.

  1. International Comparative Analysis

In the previous unit, this research work attempted to discuss the cybercrime institutional framework in Nigeria. Under this unit, we shall be looking at the position as it relates to the cybercrime institutional framework in other countries like the USA, UK, and China:

  1. i) The United States of America Cybercrime Institutional framework

Unarguably one of the most technologically advanced and sophisticated countries of the world, the United States of America is a prime target of cyber criminals. The U.S government is clearly aware of this and therefore has taken strategic institutional steps towards thoroughly combating the menace of cybercrime out of the nation’s cyber space.

The Federal Bureau of Investigation (Cyber Division) is the lead agency for investigating cyber-attacks by criminals, overseas, adversaries, and terrorists[32]. There are specially trained cyber squads at the FBI headquarters and in each of the FBI’s 56 field offices, staffed with over 1000 agents and analysts who protect against and investigate computer intrusions, theft and intellectual property, etc.[33] The FBI’s Cyber Division has an Internet Crime Complaint Centre that accepts online internet crime complaints from either the victims or third parties. Under the FBI there is also the Cyber Action Team which was established in 2006 to provide rapid response against major computer intrusions and cyber related emergencies[34].

There is also a National Cyber Forensics and Training Alliance (NCFTA) which was created in 1997 to deal with threats from transnational groups including spam, botnets, IP thefts and other financial fraud schemes that result in the loss of billions of dollars. The NCFTA works with FBI’s Cyber Initiative and Resource Fusion Unit to ensure the maintenance of a synergy amongst relevant cyber security bodies.

Under the U.S Department of Homeland Security, there is a National Cyber Security Division which was created in 2004. It partners with government, industry, and academia as well as the international community to make cyber security a national priority and to reinforce that it is a shared responsibility. Some of its programs include the National Cyber Response Coordination Group and the U.S Computer Emergency Readiness Team, etc.[35] Similarly, under the U.S Department of Defense, there is a Cyber Command (CYBERCOM) which defends and protects the information networks of the U.S Department of Defence from cyber threats.

Apart from the Office of the Deputy Assistant Secretary of Defence for Cyber Policy which basically develops and oversees the implementation of cyber-related policies and strategies, there is also the National Office of Cyber Security and Communications (CS & C) that is saddled with the responsibility of enhancing the security, resilience, and reliability of the nation’s cyber and communications critical information infrastructure[36].

Finally, there is also a National Cyber Investigative Joint Task Force which was established in 2008 and comprises of over 20 partnering agencies from across the law enforcement, the intelligence community and the Department of defence. Its primary responsibility is to coordinate, integrate, and share information to support cyber threat investigations and to pro value to other ongoing efforts in the fight against cyber threat in U.S.A.[37]

  1. ii) The U.K Cybercrime Institutional Framework

The principal guidance for U.K cyber security is provided by the National Cyber Security Strategy (NCSS) published in 2016. Pursuant to the strategy, the government aims at ensuring that by 2021, the U.K is secure and resilient to cyber threats and confident in the digital world.[38]

The National Crime Agency is the U.K’s national law enforcement body which works closely with various law enforcement bodies such as the U.K police, regional organized crime units, and partners in international law enforcement such as Europol, the FBI and the U.S law enforcement agencies to share intelligence and coordinate actions. It also has a cybercrime unit which acts as a centre of expertise and tackling cybercrime[39].

There is also the National Cyber Security Centre (NCSC) which began operating in 2016 but was formally opened in February, 2017. The NCSC is part of Government Communications Headquarters (GCHQ), the U.K’s Sovereign Signals Intelligence (SIGINT) and Information Assurance Agency. Its responsibilities include countering and investigating online digital crimes, and to ensure the security of U.K’s Critical National Infrastructure. It is apposite to note that the NCSC brought under one roof pre-existing anti-cybercrime bodies such as the Centre for Cyber Assessment, Computer Emergency Response Team U.K, and the national technological authority for information assurance (I.A). This institutional reorganization provides government agencies and departments, firms and citizens with a single point of contact for cyber security expertise and guidance[40].

The U.K Get Safe Online is another important institution in reckon with here. It is a public/private organization with the backing of both the U.K government and leading organizations in banking, retail, internet security and other sectors. It maintains a rich a website which forms a unique resource of advice on how to protect computers and mobile phones from fraud, identity theft, viruses and other online hazards. It also partners with law enforcement agencies and other bodies in support of their outreach activity, internal awareness and customer online safety[41].

Apparently, the U.K appreciates the importance of publicity and sensitization as it relates to cyber security measures. Apart from the Get Safe Online, there is also the Cyber Aware (Formerly Cyber Streetwise) organization which basically aims at driving behavior change among small businesses and individuals so that they adopt simple secure online behaviors to help protect themselves from cyber criminals.[42] Finally, report has shown that U.K is also planning to establish a new cyber force of over 2000 operatives which will cost hundreds of millions of pounds.[43]

iii) China Cybercrime Institutional Framework

The Chinese Cyber Police Force is basically the institution responsible for ensuring cyber security in the nation’s cyber space through the investigation, arrest and prosecution of cyber criminals. It is the internet crime division of the Ministry of Industry and Infrastructure Technology. It has focused a good deal of its attention on pornographic websites, internet fraud, and internet businesses.[44] Other Chinese public and private security agencies also have institutional capacities for tackling cybercrimes but the Cyber Police is comparatively the most specific and strongest among all the agencies with the task of tackling malicious online conducts.[45] Worthy of emphasis here is the numerical strength of china cyber police. The Chinese cyber police force is over a million and as at 2013, it was reported that the country recruited 2 million people into its internet police.[46] The reason behind this numerical strength ranges beyond the fact that there are many internet users in China to the fact that the Chinese government has a full grasp of the intricacies of cyber security in this digital world. There is also the Cyberspace Administration of China (CAC) established in 2014 which is the central internet regulator, censor, oversight and control agency for the Republic of China.[47] Its range of work includes launching the annual propaganda week of national security to improve security awareness, launching special campaigns aimed at regular detection of internet crime; releasing plans pertinent to education and talent cultivation; providing funding support and promoting security law, etc. Worthy of note finally is the Internet Society of China (ISC) which was formed in May 2001 and is apparently a normative institutional framework backed by and often used by the Chinese government to mount pressure on organizational constituents to comply with certain internet standards set by the government.

  1. Comments/Recommendation

A look at the institutional frameworks of the three countries considered above shows clearly that Nigeria has a lot of work to do in relation to cyber security institutional measures. In as much as the three selected countries are not the best in cyber security in the world, there are quite some tips that can be borrowed from them. According to a recent cyber security report which analyzed the cyber security status of 60 selected countries and ranked them starting from the least cyber-safe to the most cyber-safe, Nigeria was ranked 11th while U.S.A, U.K and China were ranked 53rd, 57th and 13th respectively, with Japan rated 60th as the most cyber-secure country amongst the list.[48] The most striking aspect of the report in relation to this research work is how the countries were assessed on their current readiness for cyber-attacks – Nigeria scored 0.569 while U.S.A, U.K and China scored 0.919, 0.783 and 0.624 respectively. This clearly shows that these countries have better cyber security institutional framework than Nigeria. Although China was ranked 13th in the list, the report shows that they are even more ready to deal with cyber-attacks than Denmark which ranked 57th but scored 0.617 on cyber-attack readiness.

The existence of several cyber-specialized bodies coupled with their organization and numerical strength are factors present in the criminal justice response of the three countries considered above which this research finds lacking to some extent in Nigeria. Institutional/Regulative permissiveness is a driving force behind the growth of the cybercrime industry. Little wonder, weak law enforcement machinery has been cited as a contributory factor why cyber criminals in developing countries (like Nigeria) feel more confident than their like-minds in developed countries.[49]

A careful perusal of the Nigerian Cybercrimes Act as it relates to specific cyber security institutions shows that the Act adopts an approach whereby all relevant law enforcement agencies are each envisaged to have a cybercrime unit attached to them, while the office of the National security adviser shall be the coordinating body. The Act also envisaged the creation of cyber-security institutions such as the National Computer Emergency Response Team (CERT) Coordination Centre to manage cyber incidences, a Computer Forensic Laboratory to assist the law enforcement agencies and a Cyber Security Research Centre. Unfortunately, the physical presence of these bodies is yet to be felt.

Of all the relevant law enforcement agencies in Nigeria, it appears that only the EFCC is making efforts towards fighting cybercrimes though it is not certain whether the agency has a formidable cybercrime unit. However, allocating the function of investigating and prosecuting cybercrimes to the EFCC alone will be misleading because not all cyber offences are economic or financial in nature, e.g. child pornography, cyber stalking, xenophobic offences, etc. The Nigerian police force which has more general and wide powers than the EFCC also does not have a specialized unit for handling cyber security. These institutional lapses constitute a huge setback in Nigeria’s fight against cybercrimes. In this connection, this research work recommends as follows:

  • There is need for the creation of a specialized cybercrime agency which will bring under one roof all those cyber security units and teams envisaged under the Cybercrimes Act. The agency should be independent of other law enforcement agencies but will cooperate with the various cybercrime units of those law enforcement agencies to track down, investigate and prosecute cybercrime suspects. Creating a specialized cybercrime agency will promote effectiveness, efficiency and accountability. Specialization in this sense will be different from monopolization of the cyber security task as the agency will partner with other existing law enforcement agencies at all times.
  • All other relevant law enforcement agencies should as well comply with the Cybercrimes Act by establishing institutional capacities to handle cybercrime matters. This can be achieved by either recruiting graduates who are knowledgeable in computer science and acquainting them with the practical rules and procedures of law enforcement or by training existing members who already know the workings of the law to become cyber security experts. The former method is better because it will promote employment and it appears that existing members of various agencies find it difficult to adapt novel responsibilities different from what they are used to – carrying guns, tracking down suspects, physical arrest, interrogation, prosecution, detention, etc.
  • There should be an internet crime complaint centre.[50] Cybercrimes are committed online and the victims who learn of the violations may wish to lodge a complaint to the relevant authority for investigation. This problem can be solved by creating an internet crime complaint centre which shall be under the suggested Cybercrime agency with an online presence for the receipt and investigation of cybercrime complaints.
  • There is need for a cybercrime research centre which shall be an educational institution on its own with physical presence in various universities in the federation. It will be a centre for research and training of interested candidates including those working in the cyber security units of various law enforcement agencies. Government should show a massive support to the centre by awarding scholarship to the interested candidates and offering them employment in the cyber units of key parastatals and agencies.
  • There should be special judges in various courts with the specific mandate of hearing internet crime matters. In other words, both the federal high court and the state high court should establish special courts in each of their divisions for this purpose. In this connection, this research argues that the jurisdiction to try cyber offences should not be limited to the federal high court alone.
  • Finally, in as much as Nigeria boasts of numerous land army, navy and air force, etc. for its national security, it is pertinent for the country to build a cyber-army of experts to defend the nation’s cyber sovereignty against intruding cyber terrorists as the winter is here already and the impending world war appears to be a cyber-war.

[1] Victor Obinna Chukwuma Esq. LLB ( Unizik), BL (Nigerian Law School, V.I Lagos) Counsel at Adekunle Ojo & Associates, Ikeja, Lagos. The writer can be contacted through his email: obinnaonwa132@gmail.com or his phone number: 07069182735)

[2] Gottschalk, P “Policing Cybercrime” Published by Book boon, 2010 pg. 9 (1-137)

[3] Sheala, S “Cybercrime – Definition, Challenges and the Cost” International Journal of Computer & Mechanical Science (2014) Vol. 3 No. 2 pg. 34 (pp. 34-38)

[4] Madhu, T “Security Against Cybercrime: Prevention and Detect” Published by Horizon Books (A Division of Ignited Minds Edutech P Ltd) 2017 pg. 40 (pp. 1- 216)

[5] See Part III of the Act

[6] See Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended in 2011)

[7] See also Section 29 (1) of the Nigerian Terrorism Prevention Act, Official Gazette No. 25 Vol. 100 (2013) A27 and Section 148 of the Nigerian Communications Commission Act, 2003 Cap N97 LFN 2004

[8] See Section 41 (1) of the Cybercrimes (Prohibition, Prevention) Act, 2015

[9] Section 42 (3) (4) and (5) of the Act

[10] See Section 43 of the Act

[11] Section 50 (3) of the Act

[12] See Garba v Federal Civil Service Commission (1998) 1 NWLR PT. 107 at 68

[13] This is more of legislative inelegance – While a comparison with section 26 (1) of the Nigerian Drug Law Enforcement Agency Act, Cap E30, LFN 2004 lends support to this argument as the jurisdiction of the federal high court to try offences under that Act was expressly stated to be exclusive, another comparison with the section 18 of the EFCC Act shows the contrary as that section more comprehensively stated that the federal high court and the state high shall both have jurisdiction to try offences under the Act.

[14] See Eze v FRN (1987) 2 SC 320

[15] Yetunde A, O “All Eyes on Special, Sexual Offences Court” Published by the Guardian News, 06 Feb, 2018 available at https://www.google.com.ng/amp/s/guardian.ng/features/all-eyes-on-special-sexual-offences-court/amp accessed on 2nd June, 2019

[16] Section 37 of the Act

[17] See section 58 of the Act

[18] Section 37 (3) of the Act

[19] Sections 38 to 40 of the Act

[20] Alagbe J “Give us Naira Marley’s transaction history, EFCC tells Mastercard, Visa”  PUNCH, June 1, 2019 available at https://punchng.com/give-us-naira-marleys-transaction-history-efcc-tells-mastercard-visa/ accessed on 3rd June 2019

[21] Section 40 (3) of the Act

[22] Section 41 (2) of the Act

[23] Section 47 of the Act

[24] See sections 174 and 211 of the CFRN, 1999 (as amended)

[25] See for instance sections 52, 55 (3), 57 of the Act where the draftsman apparently intended that those provisions are to apply to the AG Federation alone.

[26] Emelogu v State (1988) NWLR (PT 78) 524

[27] See Berlastsky, N “Cybercrime” Published by Greenhaven Publishing LLC, 2003 Pg. 83 (pp. 1-216)

[28] See Adomi, E, E “Security and Software for Cybercafés” Published by IGI Global, 2008 Pg. 209 (pp. 1-360)

[29] Berlastsky, N Opcit pg. 82

[30] Adomi E, E Opcit pg. 209

[31] Please note that Act never outlawed them but they seem to have gone into hiding after the Act came into force.

[32] Morgan S “Directory of U.S State and Local Cyber Crime Law Enforcement: How to report a cyber-attack, data breach, or hack to the authorities” (published by Cyber Security Ventures) available at https://www.cybersecurityventures.com/directory-of-u-s-state-and-local-cybercrime-law-enforcement/ accessed on June 5th 2019.

[33] Michael K and Edward M “U.S Government Counterterrorism: A Guide to Who Does What” Published by CRC Press, 2016 pg. 122 (pp. 1-407)

[34] Morgan S Opcit

[35] Michael K and Edward M Opcit pg. 118

[36] Ibid pg. 118

[37] FBI, National Cyber Investigative Joint Task Force available at https://www.fbi.gov/investigate/cyber/national-cyber-investigative-joint-task-force accessed on June 5th 2019.

[38] Stevens, T etal “U.K Active Cyber Defence: A Public Good For the Private Sector” Published by King’s College London, January 2019 pg. 7 (pp.1-40)

[39] House of Commons – Home Affairs Committee: E-Crime – HC-70: Fifth Report of Session 2013-2014 Published by The Stationery Office, 2013 pg. 69

[40] Stevens, T etal Opcit pg. 8

[41] Adopted from https://www.getsafeonline.org/about-us/ last accessed on 6th June 2019

[42] Adopted from https://www.cyberaware.gov.uk/about-us last accessed on 6th June 2019

[43] See Ana Bera “Cyber Warfare Statistics” Published by Safeatlast on March 14, 2019  available at https://safeatlast.co/blog/cyber-warfare-statistics last accessed on 6th June 2019

[44] Richard J, T “World Criminal Justice System: A Comparative Survey” 9th Edn Published by Routledge, 711 Third Avenue, New York, 2015 pg. 492 (pp. 1-752)

[45] Xingai, L “Regulation of Cyber Space: An Analysis of Chinese Law on the Cyber Crime” International Journal of Cyber Criminology Vol.9 Issue 2 July-December 2015 pg. 198 (pp. 185-204)

[46] See Katie, H & Xu, C “China Employs 2 Million to Police Internet” CNN News, Oct 7, 2013 available at https://www.cnn.com/2013/10/07/world/asia/china-internet-monitors/index.html accessed on 7th June, 2019.

[47] Bixing F “Cyberspace Sovereignty: Reflections on Building on a Community of Common Future in Cyberspace” Published by Springer, Singapore, 2018 pg. 178 (pp. 1-482)

[48] See Rebecca M “Which Countries Have the Worst (and best) Cyber Security?” published by Comparitech, Feb 6, 2019 available at https://www.comparitech.com/bog/vpn-privacy/cybersecurity-by-country/ accessed on June 8, 2019

[49] Kshetri N “The Global Cybercrime Industry: Economic, Institution and Strategic Perspectives” Published by Springer Science & Business Media, 2010 pg. 172 (pp. 1-252)

[50] This was envisaged under section 21 of the Nigerian Cybercrimes Act

The Fundamental Right To Wear Hijab Of Female Muslim Students Of St. Anthony And C & S Secondary School, Ilorin

In recent time, specifically on 13th May 2019, the Principal of St. Anthony Secondary School Ilorin, Mrs. E.F Afolayan rebuked some female Muslim students for wearing hijab on their school uniforms after the school hour. On the following day, she made it the subject of her discourse on the assembly ground, warning all female Muslim students of the school to stop wearing Hijab on their school uniforms within and outside the school premises. She even warned against the use of same in all MSSN programs of the school. This has caused a lot of brouhaha from the Muslims, particularly the female Muslim students of the school. They contend that the order of the Vice-Principal impedes on a sacrosanct tenet of their religion and that such order is a breach on their fundamental right to religion.

Hijab is a head covering worn by Muslim women especially in front of non-related adult males. Although, there is no universal definition as to the exact ambit of the hijab but there is a consensus among Islamic scholars that a woman must cover her head in a manner that her hair, her neck and the shape of her bosom do not expose. Hence, wearing of hijab is a religious injunction, the basis of which is substantiated in Chapter 24 Verse 30-31 of the Glorious Qur’an. Accordingly, a prolific professor of law, A.A Oba remarks in one of his papers (The Hijab in Educational Institutions and Human Rights: Perspectives from Nigeria and Beyond) thus:

“The juristic basis of the hijab is found in the Qur’an and the Hadith. The status of hijab, khimar and niqob as part of Islam is undisputable”

Fundamental rights on the other hand, are the inherent and innate rights of a person which cannot be taken away from him except in accordance with the constitution. These rights are fundamental because they have been guaranteed by the fundamental law of the country, which is the constitution – Uzoukwu v. Ezeonu (1991)6NWLR (pt 200)708.

The question that naturally flows from the above postulations is, whether wearing of Hijab is a fundamental right in the context of the Constitution of the Federal Republic of Nigeria 1999 and if yes, then is this right exercisable in St. Anthony and C&S Secondary School, Ilorin.

By virtue of section 38 and 42 of the Constitution, right to freedom of thought, conscience and religion and freedom from discrimination are guaranteed respectively. The echo of these rights is further amplified and pontificated by Article 2, 5, 8, 10, 17`and 19 of African Charter on Human and Peoples Right.

Section 38(1) CFRN 1999 (as amended) provides that:

”Every person shall be entitled to freedom of thought, conscience and religion…to manifest and propagate his religion or belief in worship, teaching, PRACTICE and OBSERVANCE” (emphasis on the bold upper case words).

It therefore, appears from this provision that a person shall be entitled to practice and observe the injunctions of his religion without any infraction whatsoever from another person(s). Hijab, the practice and observance of which amounts to the practice and observance of Islamic religious injunction is thereby guaranteed as a fundamental right by the fundamental law of Nigeria.

This position is settled beyond recondite and has gained judicial blessing from a full panel of the Court of Appeal in the case Abdukareem v Lagos State Government (2016)15NWLR (pt 1535)177. In this case, the court expounded and gave effect to the provision of section 38 CFRN 1999 when it held thus: “…the respondents’ refusal to allow the 1st and 2nd appellants wear Hijab on their school uniforms during or after school hours breached their rights to freedom of religion because, the wearing of hijab by female Muslims constitutes an act of Islamic worship.”

The fact that led to this decision is not in any disparity with the occurrence in St. Anthony Secondary School, Ilorin. In Abdulkareem’s case, the Vice-Principal of a public school in Lagos openly reprimanded two female Muslim students for wearing Hijab on their school uniforms. The court concluded that the refusal to allow these girls to wear hijab on their school uniform is a clear infraction of their constitutional guaranteed rights. A. A Oba  also has this to say:

“The requirement of Hijab for Muslim women is a recognized tenet of Islam. To deny Muslim women the right to any aspect of the Hijab would be tantamount to denying them the right to be Muslims. The longing of female students to comply fully with the Islamic mode of dressing is a legitimate human right, a fundamental right, and a constitutional right in Nigeria”

It therefore goes without saying that the female Muslim students of both St. Anthony and Cherubim and Seraphim have a very trite constitutionally guaranteed right to wear hiajb on their school uniforms which no one can wittingly or unwittingly violate. It also follows that any female student who subscribes to the sacrosanctity of hijab must not be deprived of her fundamental right to practice and observe same.

It may whisper into one’s mind that these female students might have waived their right by signing some forms on admission into the schools. This does not hold water because, the constitution is the grundnorm and it is the law that provides for the right. Therefore, any regulation in any form which is inconsistence with the constitution must give way and abate – PDP v CPC (2011)17NWLR (Pt 1277)485. Also, in an unreported case of Saliu Bashirat v The Provost, Kwara State College of Education, the High court sitting in Kwara State held that the female Muslim students of Kwara State College of Education, Ilorin could not individually waive their fundamental rights under section 38 of the constitution. On this light, it will be notoriously wrong to posit that the female Muslim students of St. Anthony Secondary school or Cherubim & Seraphim Secondary School Ilorin have, by any way, waived their fundamental right to wear hijab.

Clearly,  the principal and the school have strayed into plain unconstitutionality and this is not only bad but incurably bad. This aberration and open challenge to the provision of the Constitution that binds all of us,  ethnicity, religion and sex notwithstanding, should not be allowed to go on without end. Religious tolerance is central to the jurisprudence of the law cited in the above constitutional provisions and it must be observed if Nigeria is to realize her unity. As such all hands must be on deck to correct this anomaly, as it is.

Let’s accommodate divergent view and abandon archaic dogmas which are not supported by the law of God and the fundamental law of man. Obviously, this affects in substance, the freedom of religion of these girls as well as their fundamental right and should not be given a pride of place. These students have an unfettered right, the breach of which gives them a reasonable cause of action before the court. We thereby honourably call on the government and the relevant authorities to see to this unconstitutionality because unconstitutionality should not be given a place to stay in a decent society.

Abdullahi Soliu Dagbo is a Student of Law in his second year, Faculty of Law, University of Ilorin. He can be reached via +234 903 566 3513 or Abdullahisoliudagbo24434@gmail.com.

Should Public Interest Litigations Be Discouraged?

Two seemly public interest litigation cases somersaulted in courts recently when they were respectively dismissed. One of the two cases was instituted by Mr. Adeshina Ogunlana against the Chief Judge of Lagos State challenging the newly introduced Lagos State High Court Civil Procedure Rules 2019 while the other one was filed by one Mr. Tochi Micheal at a Federal High Court in Abuja against the Acting Chief Justice of Nigeria alleging age falsification. Apart from the dismissal of the two cases one on the ground of being FRIVOLOUS and the other one on the ground of LOCUS STANDI, heavy costs in Millions of Nairas were respectively awarded against the Claimants/Applicants in the cases. The beauty of the judicial system we operate is that the two Claimants/Applicants are at liberty to appeal against the decisions. The appellate courts will surely have the final saying on this issue.

With the heavy costs awarded against the Claimants or Applicants in the above cases, the questions that are being asked by people now is that: Are these heavy costs being awarded meant to scare away or discourage litigants from instituting public interest litigations? Are these heavy costs justified? Mr. Femi Falana, SAN and a prominent human rights activist and public interest litigator has come out to voice out his mind on this development when he said:

“As far as the law stands, no judge has power to order a litigant to pay costs outside the ambit of the rules of the respective High Courts”… “Even in the award of costs, litigants and their counsel are given fair hearing by judges .Why then are fines imposed on litigants or lawyers without allowing them to make representation?”… “I wish to state that no judge is empowered by the constitution, High Court Law or Rules of court to impose fines of N5 million or N10 million on a litigant who has not been tried and convicted for committing a criminal offence in Nigeria”… “We are, therefore, compelled to draw the attention of our judges to the case of Fawehinmi V Akilu (1997) NWLR (Pt. 65) 979 wherein the Supreme Court overruled the case of Abraham Adesanya V. The President (1981) ANLR 1.”… “Since the anachronist’s doctrine has been set aside to pave way for public interest litigation, our judges should desist from striking out or dismissing cases which are filed to challenge impunity of public officers in Nigeria…”

Another lawyer (Kay Enitan) in a Lawyers’ Whatapps Group (LAW AND SOCIETY FORUM ) in response to this particularly on the issue of “Fines Imposed” , had this to say :

“I beg to disagree with learned Silk on his assertion that there is no law or Rules that permit the award of fines. (I believe he meant costs and reads it as such) if N5 or N10 million against a litigant …in Nigeria. Whilst I would not want to delve into the Rules of other State High Courts I will refer to Order 53 (1) and the rest of that order makes provision for award of cost and the principles to be countenanced in awarding costs.Furthermore ,when the costs are to be awarded the party against whom it is sought is given an opportunity to respond after which the judge will exercise his/her discretion as to whether to award cost or not and how much to award.I am aware that in a recent matter after a full contest and award of judgment against the claimant,where cost of N10 million was sought the Defendants’ counsel sought to justify the request for N10 million by stating he charged N5m as professional fee and also stated that items that entitled him to the amount asked and the Claimant’s Counsel in response rather than taking the issue with seriousness responded that that the Defendant’s counsel is an elder to the Claimant and as such should not be asking for costs and matter was filed to arrest a supposed impunity. The court awarded N5m. While I agree that public interest litigation should be encouraged and not be fettered in any manner,each such litigant should be sure of its standing ,the facts to be urged ,the ill to the society which he seeks to prevent must be real and potent not based on rumors or the like .You can not ‘force’ someone to defend a spurious action,incur expenses and fees and not want to pay the due cost when you eventually lose the case.I’ve not read of SERAP being ‘fined’ for bringing public interest litigation so they must be doing something right that all others need to go and understudy.”

I absolutely agree with the learned counsel, Kay Enitan without having much to add as done by some other lawyers on that platform. Public Interest Litigation is a very good thing and we must advise ourselves that when such legal battle is being prepared for those things highlighted by Kay Enitan Esq must be taken very serious. Such litigation is like a Battalion of Army going to the War. If the preparation is ill, the Battalion is bound to suffer a great defeat. Public Interest Litigation is not about playing to the gallery. This is where we have missed greatly the late Chief Gani Fawehinmi (SAN), a rare Public Interest litigator in our midst. In the book LEGAL LUMINARIES, I wrote about the late people’s lawyer that:

“One can say boldly without fear of any contradiction that till date, the shoes left behind by Chief Gani Fawehinmi is yet to have the right candidate to fit into it not only in terms of his significant contributions to the development of law but also in terms of selfless services he rendered to humanity, particularly the oppressed and the less privileged. Gani as he used to be fondly referred to during his life time derived pleasure in championing the cause of the masses.”

Gani was a good example of public interest litigator who once said about himself that: “ I have always kicked against programmes which are inimical to the aspiration of Nigerians.I have instituted more suits than any Nigerians dead or alive. As long as governments continue with their policies and programmes, so long I shall continue to challenge them through the courts because I don’t believe in waging war against one’s fatherland”. Gani did public interest litigations in abundance as I have showed in the LEGAL LUMINARIES:
“Gani took up governments and various authorities in several legal battles in the courts of law to challenge bad policies or whatever he perceived not to be in the interest of masses. When the students and authorities of the University of Maiduguri were at logger head on expulsion of some students, Gani was in court to fight legal battle on behalf of the students and at the end of the day it was resolved by the Supreme Court in Garba Vs. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 that the relationship between students and the university authorities being statutory and not contractual, any offence that bother on crime is beyond the jurisdiction of the university authorities to try . Also at one time or the other when students of various universities such as Universities of Ibadan , Lagos, Nsukka and Benin as well as Obafemi Awolowo University, Ile-Ife had problems with the authorities they found in Gani a befitting friend who was always in court to challenge the expulsion or rustication of the students.”

Late Gani was in court in the case of INEC Vs. Musa (2003) 3 NWLR (Pt.806) 72 where in succeeded in arguing the case for the creation of more political parties. He fought Inspector General of Police up to the Supreme Court on the immunity clause regarding the offices of the President, Vice President, Governor and the Deputy Governor as contained in Section 308 of the Constitution. The court eventually held in Fawehinmi Vs. Inspector General of Police (2002) 7 NWLR (Pt.767) 606 that as far as the investigation of those public officers are concerned they could be investigated but not prosecuted by the police while in office. In Fawehinmi Vs. President, Federal Republic of Nigeria (2007) 14 NWLR (Pt. 1054) 275,Court of Appeal ruled that Gani had the locus standi to challenge Chief Obasanjo for paying Mrs Okonjo Iweala and Ambassador Adeniji in foreign currency while serving as Ministers under him.

The public interest litigation is a thing lawyers must develop interest in with a view to challenge government excesses whenever the situation arises but when doing that we must do our home work properly and thoroughly. It is very unfortunate that most time you see people filling cases that will add no value to our jurisprudence but merely to waste the time and resource of the court or engage in what one of our great late Supreme Court Jurists, Pats Acholonu described as “…some matters … as frivolous or would not advance the growth of jurisprudence. Such banal, dreary and utterly vapid cases ….which counsel took up because they want to use it to advance or increase the number of cases they handle in Supreme court for the purpose of application for SAN…, not for ordinary drab, dull and strictly non-contentious issues where counsels merely wish to make themselves heard”. . Some people institute cases to embarrass other people out of hatred and malice. There was case said to have been recently filed against a particular politician who having shown interest in running for a particular position in the National Assembly on allegation of previous conviction in another country only for the Claimant or Applicant in the suit to turn round to withdraw the suit when it was discovered that Respondent being sued had been cleared in an earlier suit before the same court.

There is no doubt that by the Fundamental Rights (Enforcement Procedure Rules) 2009, the scope of the LOCUS STANDI has been expanded while at the same time the Limitation Statute is no longer applicable to issues bothering on the enforcement of fundamental rights cases. The same thing may not be said of other area of laws where Public Interest Litigation may become necessary but could be checkmated by the issue of Locus Standi and Statute of Limitation being raised for the determination of the court. The issue on award of cost most time in practice is usually raised by the successful party who wants to be compensated for the expenses he has incurred in the cause of litigation. Whenever the court is asked for a cost by a party against the other party ,court will ask for the reaction of the other party before the court goes ahead to exercise its discretion in awarding cost. The practice in those days as reflected in some some old judgments which seems not to be in vogue this time around was that after a ruling or judgment had been delivered, the presiding judge would say “I will now hear the counsel to the parties as to the cost”. If you have read the trial court judgment delivered by the late Honourable Justice J.I.C. Taylor on 12th November 1971 in the celebrated case of ADEBAJO Vs ADEBAJO argued before him by Chief F.R.A Williams and Mr. Kehinde Sofola, the learned Chief Justice of Lagos State after delivering the judgement said:

“I shall hear the parties on costs”

It will not be in the interest of anyone to discourage the filing of Public Interest Litigations in our court of law as the law is already settled that no matter how frivolous a case is, it must be determined by the court in one way or the other.But we must against sound a note of warning that what worth doing worth doing well. If you file a suit that you cannot sustain or lack merit, it will be at your own peril. One of the ways to develop our law is through Public interest litigation to challenge the lawlessness and excesses of government and its officers as done by the like of late Chief Gani Fawehinmi, the Senior Advocate of the Masses in many instances.

We must here make a passionate appeal to our judges to display high level of tolerant and decent comportment require of good judges when public interest litigations come before them rather than being hostile.The attitude of some judicial officers to counsel appearing before them does not portrait a good fraternity between the Bar and the Bench. I once asked on this platform whether the fraternity between the Bar and Bench had gone on flight. In recent time there are things pointing to the fact that the relationship between the Bar and the Bench is not cordial enough. There is this attitude of “THEY and US” particularly from the Bench to the Bar. For instance in the course of amending the Lagos State High Court Civil Procedure Rules 2019 , I don’t think the members of bar were sufficiently carried along talk less of being co-opted into the Committee that amended the Rules. Even when Lagos State Judiciary eventually called for suggestions and recommendations from the bar, am still not sure whether the one submitted by the NBA Lagos was given consideration to reflect in the new Rules. There was even complaint by the branch that the draft of the new Rules was not made available to the NBA Lagos despite the request . In Anambra State , lawyers have threatened to go on court boycott on the introduction of the new Rules which they said they had no input in it particularly on the new regime of the filing fees introduced. Since the Chief Judge of Anambra State has agreed to meet with the lawyers, one prays for a successful deliberation between the Bar and the Bench

In a ceremony organized on 6th June 2019 by the Lagos State Judiciary in honour the retiring Chief Judge at the Foyer of the Lagos State High Court, Igbosere, am not yet sure whether the members of bar in Lagos State were actually invited to the ceremony or not. All these are pointers to the fact that there is the urgent need to positively improve on the relationship between the Bar and the Bench which I believe rests squarely on the leadership of the two arms of the legal profession.

REMARKABLE PRONOUNCEMENT ON ACCESS TO COURT

I take significant cognizance of the fact that Nigeria is a developing country with a multi-ethnic society and a written federal constitution, where rumour-mongering is the pastime of the market places and the construction sites. To deny any member of such a society who is aware or believes, or is led to believe, that there has been an infraction of any of the provisions of our constitution, or that any law passed by our legislature, whether federal or state is unconstitutional, access to a court of law to air his grievance on the flimsy excuse of lack of sufficient interest is to provide a ready recipe for organized disenchantment with the judicial process. In the Nigerian context, it is better to allow a party to go to court and to be heard than to refuse him access to our courts. Non-access, to my mind, will stimulate the free-for-all in the media as to which law is constitutional and which is not. In any case, our courts have inherent power to deal with vexatious litigants or frivolous claims. To re-echo the words of learned Hand, ‘If we are to keep our democracy’, there must be one commandment, thou shall not ration justice.

Per FATAYI-WILLIAMS, CJN in Adesanya Vs. President of Nigeria (1979-81) NSCC 146 at Pg. 157

THE SETTLED PRINCIPLE OF LAW

On nature of claim that can be brought under the fundamental rights procedure rules

It is the law, as held by the Supreme court in a long line of cases dealing with actions for enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules that when an application is brought under that rules a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of the enforcement thereof should be the main claim and not an accessory claim. That where the main or principal claim is not the enforcement or securing the enforcement of a fundamental rights, the jurisdiction of the court cannot be properly exercised as it will be incompetent….Thus where court found that the main complaint of an applicant under the Fundamental Rights (Enforcement Procedure) Rules was his disposition as the emir or termination of his appointments, the alleged breaches of his fundamental rights to fair hearing, liberty and freedom of movement were merely ancillary to his primary complaint and therefore the adopted procedure declared inappropriate.

See Tukur Vs. Gov. of Taraba State (1997) 6 NWLR (Pt. 510) 549; Egbuono Vs. BRTC (1997) 12 NWLR (Pt. 531) 29; AKINOLA Vs. V.C. UNILORIN (2004) 11 NWLR (Pt. 885) Pgs. 638-639 Paras H, A-D