Category: News

Overview Of The Lagos State Electric Power Sector Reform Law

The Lagos State House of Assembly recently passed the Lagos State Electric Power Sector Reform Law (the “Law”) and same has since been assented to by the Lagos State Governor. The Law essentially aims to boost electricity supply in Lagos State (the State) through the establishment of an embedded power scheme and the creation of offences for energy theft. In addition, in line with the calls amongst industry stakeholders for stiffer penalties or offences to be created to curb the rampant level of energy theft which is significantly affecting the attempts to reduce commercial losses, the Law creates a variety of energy theft related offences with commensurate penalties.

Some of the Key Highlights include:

(a) The Embedded Power Scheme: One of the major features of the Law is the establishment of a scheme for the improvement of electricity supply within Lagos State through embedded power generating plants/projects. Under the Embedded Power Scheme, the Lagos State Government (“LASG ) will work with embedded power generation companies licensed by the Nigerian Electricity Regulatory Commission (“NERC”) and the Lagos State Electricity Board (the Board ) (Embedded Power Providers), feedstock1 merchants and suppliers, and the distribution licensees (Discos) operating within Lagos State (the Lagos Discos”) to improve power supply through the development of embedded power projects. Power generated under the Embedded Power Scheme will be deployed to certain areas of the State to be identified and designated by the Board.2

To guarantee supply of feedstock to embedded power plants under the Embedded Power Scheme, the Law provides that the LASG will appoint feedstock merchants (Feedstock Merchants) to aggregate feedstock from feed stock suppliers and sell aggregated feedstock to Embedded Power Providers under a Feedstock Supply Agreement.

The Law also empowers the Board to liaise with NERC to develop special cost reflective tariffs for all projects under the Embedded Power Scheme. The tariff will however still be subject to NERC’s approval and the current regulatory framework under the Electric Power Sector Reform Act. In addition, section 23 of the Law provides that the Ministry may provide financial indemnities issued through the Lagos State Ministry of Finance and Debt Management Office to Embedded Power Providers and Feedstock Merchants. The objective of this is to guarantee liquidity and bankability of the projects under the Embedded Power Scheme. Similar to the role played by the Federal Ministry of Finance and DFls under the PRG schemes.

(b) Establishment of the Lagos State Electricity Board: The Board is established under the Law as the implementing authority of the Embedded Power Scheme. The functions and powers of the Board under the Law includes, providing support to Embedded Power Providers to obtain necessary licenses, permits and approvals, generating, transmitting and distributing electricity to areas not covered by the national grid, liaising with NERC and other relevant agencies in relation to projects under the Embedded Power Scheme, providing approval to entities intending to operate power plants in Lagos with capacity greater than 1 megawatt, and registering of all power plants in Lagos.

(c) Establishment of the Lagos State Embedded Power Council (the “Council”): The Council will be constituted by representatives of sector stakeholders such as, the Lagos Discos, Manufacturing Agency of Nigeria, Lagos State Electricity Consumers Association, Lagos, Embedded Power Providers, the Board, the Lagos State Ministry of Energy and Mineral Resources. Other entities that will have representation on the Council include, trade unions in Lagos State, the Lagos State Ministry of Finance, the lbile Oil and Gas Corporation, the Lagos State Ministry of Justice and all Local Government Council Development Areas. We note that upon due constitution the Council could potentially have a membership in excess of 50 people, which could become unwieldy, cumbersome and cumbersome.

The Council is mandated under the Law to primarily liaise with all stakeholders in the State and advice the LASG on all issues relating to power supply in the State and electricity tariffs, address consumer complaints in the State subject to NERC Forum Regulations and liaise with all stakeholders in the State on issues relating to electric power. The Council is to sit at least four times every year. The quorum for meetings is 15 members and decisions are made on a majority of votes of members.

(d) Ministry of Energy and Mineral Resources: Under the Law, the Ministry of Energy and Mineral Resources is given the remit to be responsible for the overall coordination of the energy policies and programs within the State. The Ministry is mandated to appoint and issue licenses to Feedstock Merchants to procure aggregate feedstock for utilization under the Embedded Power Scheme. The Ministry is also to initiate incorporation of special purpose vehicles for implementing the Embedded Power Scheme, potentially meaning that the state government could establish a private company to carry on business of electricity generation.

(e) Licensing Regime: Pursuant to section 51 of the Law, no person or company is to operate a power plant within Lagos State without the approval of the Board. In addition, section 17(w) of the Law, requires the Board to maintain a register of all power plants with a capacity of 1 megawatt and above in Lagos State. It is important to note that these provisions create a potential dual registration / licensing regime for power generating companies that are licensed by NERC but wish to locate their operations plants within Lagos State. This would potentially increase the administrative and regulatory burden imposed on such companies and make operating in Lagos State less attractive for them.

We note that the Electric Power Sector Reform Act empowers NERC to provide licenses to entities or persons seeking to own or operate an undertaking for electricity generation exceeding 1 megawatt, while allowing ownership of power generation equipment with capacity of 1 megawatt or less to do so without the need for obtaining a license from NERC4. Therefore if a power generation company has obtained a power generation from NERC, we are of the opinion that it will be in good standing if it does not seek approval from the Board to own or operate a power plant in Lagos State.5

(f) Establishment of the Embedded Power Stabilisation Fund: Section 27 of the Law provides that subject to NERC’s approval, a sum of 2% of the tariff payable by consumers under the Embedded Power Scheme is to be added to end user tariffs and is to be paid into an account designated by the Board. The funds in the account (the “Embedded Power Stabilisation Fund”) will be managed by a fund manager appointed by the Board. The accumulated funds will be used to, meet administrative expenses of the Embedded Power Scheme, and to mitigate losses arising from variables in the tariff model. A power fund management company is established under the Law to oversee management of the Embedded Power Stabilisation Fund. We note that in a situation where the consumers are objecting to increase in tariffs, this is an additional burden and the possibility of this being accepted by consumers is doubtful.

(g) Introduction of Energy Theft Offences: The Law has extensive provIsIons introducing various offences. These include offences for, unlawful connection of electricity lines or cables, meter tampering, diversion of electricity, destruction of electric meters equipment, lines, supplying of electric power without a license, dealing with unauthorized network/infrastructure, obstruction of officials of electricity companies who are carrying out their lawful duties, amongst others. The Law provides stringent punishments which include fines and prison sentences.

A Power Task Force is established under the Law for the enforcement of the provisions of the Law. Section 48 of the Law grants the Power Task Force with the power to search and inspect premises to ascertain if any energy theft offence is being committed, remove unlawful connections and devices, disconnect supply of electricity to any building for failure to pay for electricity consumed, and arrest persons in connection with the enforcement of the Law. The Law does not vest the Power Task Force or any other agency with the power to institute actions for the prosecution of the offences created under the Law. Therefore the duty of prosecution of offences under the Law may fall on the Police and the Director of Public Prosecutions.

(h) Developing Off-Grid Power Projects: Section 17(s) of the Law gives the Board the remit to establish power stations in areas not covered by the Embedded Power Scheme. In addition, section 17(0) of the Law empowers the Board to generate, transmit and distribute electricity to areas not covered by the national grid within the State. Such projects will likely be in rural areas or newly developed communities that are yet to be connected to the national grid or where there is very limited grid presence.

In conclusion, with the introduction of the Embedded Power Scheme under the Law, Lagos State appears to be wooing investors to invest in providing new generation capacity to improve electricity generation and distribution within the State. This is evident with the provision of financial indemnities and the assurance of special cost reflective tariffs (which stakeholders have long been calling for) for projects under the Embedded Power Scheme. This will likely attract existing generation companies to invest in the providing electricity in the State as well as provide opportunities for new players to invest in providing embedded generation or supply feedstock to embedded generation providers.

Footnotes

1. Feedstock is defined under the Law as natural gas, LNG, LPG, CNG, coal, biomass, waste and other feedstock which can be utilized by an Embedded Power Provider.

2. Section 17(n) of the Lagos State Electric Power Sector Reform Law

3. Section 17(g) of the Lagos State Electric Power Sector Reform Law

4. Sections 6 and 98(2) of the EPSRA

5. This is in line with the doctrine of covering the field. See Minister For Justice And Attorney-General Of Federation v. Hon. Attorney-General Of Lagos State 2013) LPELR-20974 (SC); National Lottery Regulatory Commission & Anor v Attorney General of Lagos State Suit No: FHC/ABC/CS/07

First published in Aluko & Oyebode Insights, March 2018

Sexual Abuse And The Child’s Rights Act

Public angst raised by the sexual abuse, illness and eventual death of 13-year-old Ochanya Elizabeth Ogbanje is still raging unabated. Elizabeth was allegedly raped by her uncle and his son for almost five years. She was reported to have been turned into a sex slave by both men from the age of eight.

This matter yet again brings to the fore the growing rate of paedophile cases in the country and demands a determined enforcement of the Child Rights Act.

A Chief Magistrate’s Court in Makurdi, Benue State, had since remanded 51-year-old Andrew Ogbuja, a lecturer in the Department of Catering and Hotel Management, Benue State Polytechnic, in custody.

Ochanya was just one of the pathetic cases of various heinous crimes committed against the Nigerian child in flagrant disregard for their rights as enshrined in the constitution and the Child’s Rights Act as domesticated in Nigeria and other states save Adamawa, Bauchi, Borno, Enugu, Gombe, Kaduna, Kano, Katsina, Kebbi , Sokoto, Yobe and Zamfara.

Despite this, the rights of the Nigerian child has continued to be flouted not only through sexual harassment, abuse, violation and rape but also through child labour, conscription as child soldiers, prostitution, denial of basic education, shelter, torture, starvation and outright murder.

In July 1990, the African Union Assembly of Heads of State and Government adopted the African Union Charter on the Rights and Welfare of the Child (CRWC). Nigeria signed both international instruments and ratified them in 1991 and 2000, respectively. Both instruments contain a universal set of standards and principles for survival, development, protection and participation of children. These instruments recognise children as human beings.

Children’s rights, it must be clearly understood, are the human rights of children with particular attention to the rights of special protection and care accorded to minors. The 1989 Convention on the Rights of the Child defines a child as “any human being below the age of 18”.

This definition is made in the realisation that children are rightly perceived as future leaders who ought to be protected against all forms of abuse and societal ills. In Nigeria, there is a Child Rights Act (CRA) of 2003, which is a domestication of the Convention on the Rights of the Child.

Although CRA was passed at the federal level, it can only be effective if state assemblies also follow the federal government’s example. The CRA was created to serve as a legal documentation and protection of children’s rights and responsibilities in the country.

The law has three primary purposes: to incorporate the rights of the Convention on the Rights of the Child (CRC) and the African Charter on Human and Peoples’ Rights into the national law, to provide the responsibilities of government agencies associated with the law and to integrate children-focused legislation into one comprehensive law. It also acts as a legislation against human trafficking since it forbids children from being “separated from parents against their will, except where it is in the best interest of the child.”

Prior to the 2003 Child Rights Act, Nigerian child protection was as defined by the Children and Young People’s Act (CYPA), a law relating primarily to juvenile justice. Nigeria also signed on to the International Human Rights convention agreement on the rights of child.

We hold that the failure to domesticate this law in some states in the country has continued to expose children to untold hardships, abuses, trafficking, poor or lack of education, child labour, banditry, hooliganism and a whole lot of other issues which cannot be ignored. This has further exposed children to all forms of abuses by predators/paedophiles, human trafficking agents, as well as accidents and deaths. The Act unequivocally states that a child may bring an action for damages against a person for harm or injury caused to the child willfully, recklessly, negligently or through neglect before, during or after the birth of that child.

We are, therefore, of the opinion that Nigeria will be failing in her duty to lead Africa by example if she continues to play down on the rights of the child as exemplified by the plight of children sexually abused especially by close relations like in the case of Ochanya and others.

We, therefore, call on the states that have not ratified the CRA to see the urgent need to do so and ensure that the right of the Nigerian child is protected against abuses and abusers.

This can, however, come to pass if governments do the needful with the deserved urgency.

Read original article here

The Wasteful Practice Of Affixing Two NBA Seals To A Motion By Olumide Olugbenga Ajayi Esq

There is the need to curb the wasteful requirement of affixing more than one seal on a Motion before it is accepted for filing in our Court Registries.

When a Motion is being filed at the Registry, the Court Officials usually insist that the person filing should affix a seal to the Motion and another seal to the Written Address attached to the same Motion.

I have complained several times to the Court Officials about this superfluity at the Registry of the Ikeja division of the Lagos High Court that the use of two seals on a motion is irrational. The unanimous response from the Court officials was that they are acting on the directive of the ACR (Assistant Chief Registrar) as mandated by the Nigeria Bar Association.

It is obvious that the use of two seals on a Motion is a wasteful practice. The essence of a seal among others is to check the incursions of touts and fake lawyers into the profession and to compel practicing lawyers to pay their annual Practising Fees. Therefore, affixing one seal on a Motion paper fulfils the above purposes. The mischief has been cured by affixing a seal on the Motion and that same seal should cover other processes accompanying the Motion such as Written Address since it is the same counsel that signs the Motion that equally signs the Written Address. The Rules of Court makes it clear that a Motion is a single document along with the Written Address. The exception to the above is when another counsel deposes to the Affidavit In Support of such Motion, in that case the separate Counsel needs to affix his seal to the Affidavit.

The Court Official’s further justification for this obvious wrong is that the directive is to the effect that lawyers affix their seal on every page where their signature appears on the Motion; that means they will soon require that another seal be affixed to the List of Authorities. This is way off the mark. That invariably implies that if one is filing a fresh matter one will need about five seals to cover every document accompanying the Writ wherein one’s signature appears.

Contrary to this practice, Rule 10(1) of the Rules of Professional Conduct 2007 provides for the use of “A SEAL” per document/process

“A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or Ministry of any corporation shall not sign or file A LEGAL DOCUMENT unless there is affixed on any such document A SEAL AND STAMP approved by the Nigerian Bar Association.

Rule 10(2) of the same guideline vividly captures Motions as “application” which requires just a seal.

If indeed the assertion by the High Court of Lagos State Registry Official that the insistence on two seals on a Motion paper as being peddled by the Nigerian Bar Association is anything to go by, it means her manifest intention is to allow members exhaust their 96 seals before March 31 of every year or to make it necessary for lawyers to purchase more than one pack of seals every year. All these are to the undue advantage of the Nigerian Bar Association by generating funds at the detriment of her members. This official endorsement of wastefulness must stop.

Olumide Olugbenga Ajayi Esq, can be reached via oluyimide@gmail.com

Nigerian Justices move with the Times

Nigerian Justices move with the times in the case of Mrs Betty Darego v. A.G. Leventis (Nigeria) Ltd & 3 Ors, LER[2015] CA/L/481/2011, the Court of Appeal PER Y.B. NIMPAR, J.C.A held on the meaning of the word “PREPONDERATE” thus:

“Preponderate according to www.dictionary.com is a verb and its, original meaning is “to weigh more than” and its source is the Latin word ‘praeponderare’ meaning “out weight”, “to exceed in force or power”. Preponderance would therefore, mean greater weight, a sense of greater importance.”

Comments

In the above quote, it can be seen that the court used a dictionary available on the web: dictionary.com, to define the word “preponderate.” It is good to note that our Lordships are utilizing the Internet to research and cite same as sources of information in their judgments. This is a welcome development and it’s hereby suggested that such practice should be emulated and maintained.

Before now many a lawyer thought that judges, especially justices of  the Court of Appeal and Supreme Court were old men and women who were Luddites (one who is opposed to especially technological change) or technophobes (a person who fears, dislikes, or avoids new technology) but it appears the justices are now taking steps to change that perception and that is commendable.

This is hoping that lawyers too will take up the cue by His Lordship Nimpar J.C.A by carrying out research using the web and also citing web references or hyperlinks in their written briefs. I read some briefs filed by lawyers in the US and judgments from there as well and I see hyperlinks cited in support of arguments and submissions.

Difficulties

Citing web references in legal documents has its downside because of link rot. Link rot is created when a Web page is moved, taken down or reorganized. Clicking on a rotten link usually results in a 404 error, which includes a message that the page cannot be found. According to Tom Venetis:

“Link rot commonly refers to a situation in which a hyperlink that links to a document or an online site no longer leads to the site or content. Another related problem is reference rot where the hyperlink continues to work, but the content of the site the link refers to has changed but does not tell a person where that site or document is now located. The problem is the same in both cases. Information that one is looking for is now not easily found, or cannot be found at all.”

Read next  Recognition and Enforcement of Foreign Judgment in Nigeria. Part 2

A study titled “Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010)”, published in the Yale Journal of Law and Technology in 2013, found that nearly one-third of the websites cited by the U.S. Supreme Court were non-functioning, many of which linked to government or education domains.

Solutions

In the US, Michigan’s Supreme Court archives all its cited links through Perma.cc, a crowdsourced link preservation site launched by the Harvard Library Innovation Lab. While anyone can put links on the Perma.cc server, they have to be renewed every two years in order to not expire. But links posted by universities, courts and journal editors stay permanently in the database.

Read next  The Impact Of Autonomous Cars on the Insurance Industry

There is also Webcite (http://www.webcitation.org/) which according to Wikipedia is:

“an on-demand archiving service, designed to digitally preserve scientific and educationally important material on the web by making snapshots of Internet contents as they existed at the time when a blogger, or a scholar or a Wikipedia editor cited or quoted from it. The preservation service enables verifiability of claims supported by the cited sources even when the original web pages are being revised, removed, or disappear for other reasons, an effect known as link rot.”

WebCite is a non-profit consortium supported by publishers and editors, and it can be used by individuals without charge.

 

Article by: Timothy Tion (Lawyer and Writer)

Can the Constitutional Right to Life of a Dead Man Be Enforced By His Dependants?

NPF & ORS v. OMOTOSHO & ORS CITATION: (2018) LPELR-45778(CA)

In the Court of Appeal

In the Lagos Judicial Division

Holden at Lagos

ON TUESDAY, 30TH OCTOBER, 2018

Suit No: CA/L/1078/2016

Before Their Lordships:

TOM SHAIBU YAKUBU, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

GABRIEL OMONIYI KOLAWOLE, JCA

Between

1. THE NIGERIA POLICE FORCE

2. THE COMMISSIONER OF POLICE, LAGOS STATE

3. THE DIVISIONAL POLICE OFFICER, SHOGUNLE POLICE STATION, IKEJA

4. CORPORAL EMEJO GABRIEL

Appellants

And

1. MRS. SHERIFAT AZEEZ OMOTOSHO

(FOR HERSELF AS NEXT OF KIN OF AZEEZ OMOTOSHO, DECEASED)

2. LITTLE MISS ALIYA OMOTOSHO

3. LITTLE MISS QUOWIYAT OMOTOSHO

4. LITTLE MISS NOSIRAT OMOTOSHO

Respondents

LEAD JUDGMENT DELIVERED BY UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FACTS OF THE CASE

BY an Originating Summons filed on 31st December 2013, the Respondents as Applicants before the Federal High Court, Lagos Division, commenced proceedings for the enforcement of their fundamental rights as widow and orphan, children of Azeez Omotosho (Deceased) who was said to have been shot dead by the Police.

The Respondents presented the following questions for determination in their Originating Summons:

1.Whether the killing/murder in cold blood of Azeez Omotosho by the respondents through the 4th respondent is not unlawful and an infringement of the fundamental human right to life of Azeez Omotosho, which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?

2.Whether the killing/murder of Azeez Omotosho by the respondents in the full view and in the presence of the 1st to the 4th applicants being his wife and little children does not amount to torture, degrading and inhuman treatment of the 1st to the 4th applicants and thus, the infringement of their fundamental human right of freedom from torture, degrading and inhuman treatment which right is guaranteed by the 1999 Constitution and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?

3. Whether the murder of Azeez Omotosho (who was the bread winner of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to disrespect to the dignity of the person of the applicants and a threat to the right to life of the applicants which rights are guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?

4. Whether the murder of Azeez Omotosho (who was the bread winner, family head of the applicants, husband of the 1st applicant and father of the 2nd to the 4th applicants) by the respondents does not amount to an infringement of the right to a family of the applicants which right is guaranteed under the 1999 Constitution and under the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 1990?

The Respondents claimed principal and consequential reliefs. The action was heard on the affidavit evidence and written addresses filed by the parties, and in a considered judgment delivered on 24th June, 2014, the Federal High Court entered judgment in part for the Respondents.

The Appellants were dissatisfied with the judgment and appealed against the same. The Respondents were equally dissatisfied with part of the judgment refusing some of the reliefs they claimed. So they filed a cross appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

MAIN APPEAL

1. Whether the action of the Respondents at the lower court as constituted was competent to confer the requisite jurisdiction on the lower court to proceed to entertain the action of the Respondents?

2. Whether the Appellants were liable for the death of the deceased?

3. Whether the evidence before the Court justifies the decision of the lower court particularly in awarding the sum of N250,000,000.00 to the Respondents?

CROSS-APPEAL

Whether the trial court was right to discountenance the Cross Appellants’ relief no. 1 at the trial for the reasons it advanced.

APPELLANT’S COUNSEL SUBMISSIONS

MAIN APPEAL

On issue one, the Appellants submitted that the Federal High Court was not competent to entertain the matter as the action was not initiated by due process of law and the court therefore did not have the requisite jurisdiction.

It was further submitted that the 2nd-4th Respondents were minors who did not have the legal capacity to sue in their own name except through their next friend or guardian ad litem.

On issue two, the Appellants submitted that they are not liable for the death of the deceased.

It was contended that the allegation against the 4th Appellant is murder and borders on criminality, in which case the 1st-3rd Appellants will not be vicariously liable since the principle of vicarious liability is inapplicable in criminal cases.

Arguing issue three, the Appellants posited that the facts do not justify the damages awarded since the breach of the fundamental rights was not established by the facts.

It was further stated that the 2nd-4th Respondents, not having legal capacity since they did not sue through their next of kin, cannot take benefit of the action.

CROSS APPEAL

The Cross Respondents argued that the lower court refused the Cross Appellants relief 1 on the premise that it was founded in tort and cannot constitute part of the claims under the Fundamental Rights (Enforcement Procedure) Rules.

RESPONDENT’S COUNSEL SUBMISSIONS

MAIN APPEAL

The Respondents submitted that the action as constituted is competent since the Rules allow for fundamental rights cases to be initiated by any process accepted by the court.

It was stated that originating summons is a process accepted by the lower court for commencement of an action, and that the facts of the case were not disputed since the mere filing of a counter affidavit did not make the facts disputed.

It was asserted that since the 1st Respondent has legal capacity, the presence of the 2nd-4th Respondents becomes insignificant since misjoinder of parties cannot defeat an action.

On issue two, the Respondents maintained that the lower court rightly held the Appellants liable for the death of the deceased.

CROSS APPEAL

The Cross Appellants submitted that the lower court was wrong to have discountenanced their relief 1 in the action wherein they sought to enforce the right to life of the deceased. It was stated that the Cross Appellants have an interest in the continued existence of the deceased and that it is settled law that the constitutional right to life of a dead man can be enforced by his dependants.

RESOLUTION OF ISSUES

MAIN APPEAL

In resolving issue one, the court held that the mere filing of a counter affidavit does not automatically make the facts disputed and requiring oral evidence and ordering of pleadings. See IKPEAZU vs. EKEGBARA (2016) LPELR (40847) 1 at 39.

The court further held that the issue of whether a court is to convert an originating summons to a writ of summons because the facts are contested remains within the discretion of the court, and the lower court, having so exercised discretion that there were no disputes as to facts in the affidavits, the lower court rightly heard the matter as commenced by originating summons.

On the contention that 2nd-4th Respondents were minors who did not have the legal capacity to sue in their own name except through their next friend or guardian, the court held that the 1st Respondent has the requisite juristic capacity and since misjoinder of parties cannot defeat an action, the joinder of the 2nd-4th Respondents is not fatal, the only consequence will be the striking out of their names.

Accordingly, the 2nd-4th Respondents’ names were struck out. Issues one was therefore resolved partly in favour of the Appellants and partly in favour of the Respondents.

Resolving issues two, the court kowtowed to the view eloquently expressed by the court in the case of OMONYAHUY vs. IGP (2015) LPELR (25581) 1 at 70, and held that the criminality involved in the act of unlawful killing of the deceased Azeez Omotosho does not deprive the Respondents from maintaining an action to enforce their constitutionally guaranteed right to dignity of human person.

On the decision of the lower court that it was the Appellants counter affidavit that was self-contradictory and that there was no need to take oral evidence to resolve non-existent conflict in the affidavits of the parties, the court held that the self-contradictory nature of the Appellants affidavit, having destroyed whatever facts the affidavit tended to establish, the facts in the Respondents affidavit remained unchallenged and the lower court rightly acted on the same to enter judgment for the Respondents. This issue was resolved against the Appellants.

On issue three, the court held that the lower court, having so found and held that the Appellants were liable for the death of the deceased, thereby infringing the fundamental rights of the Appellants, was entitled to award damages in their favour for the proven infringement of their fundamental rights.

The court however held that having struck out the 2nd-4th Respondents who are minors for not having the legal capacity to maintain an action, no award can be made in their favour. This issue was therefore partly resolved in favour of the Appellants.

CROSS APPEAL

The court found that the lower court was wrong in its holding that relief 1 of the claim was founded in tort and proceeded to discountenance the same.

Accordingly, the said relief 1 succeeded and the 1st Cross Appellant was awarded the sum of N40million as compensation for the infringement of the fundamental right to life of the deceased. The cross appeal therefore succeeded.

HELD

On the whole, the main appeal of the Appellants/Cross Respondents succeeded in part; just as the cross appeal of the Respondents/Cross Appellants succeeded. The total sum of N100million was awarded as damages in favour of the 1st Respondent/Cross Appellant.

Appearances:

DR. MUIZ BANIRE (SAN) with him, OMOTAYO OLATUNBOSUN, ESQ., A. B. MUNIRUDEEN, ESQ. and DR. NAJEEM AMODU – For Appellants/Cross Respondents

N. O. AGWULONU, ESQ. – For Respondents/ Cross Appellants

Compiled by LawPavilion

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The illegalities of Executive Order 6 and Travel Ban (1)

SOME few weeks ago, Nigerians woke up to learn about a certain Executive Order No. 6 of 2018, on the preservation of suspicious assets connected with corruption and other relevant offences. By this Order, it is expected that persons affected thereby will be denied access to any sum of money that is suspected to be a proceed of crime. The president, in signing this order, placed heavy reliance upon Section 5 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The general purport of Executive Order No 6 of 2018 is to place a general restriction upon dealings connected with suspicious assets subject to corruption related investigation or inquiries, in order to preserve same. It then listed in its schedule several cases already filed in court, against certain named individuals.

By simple logic, the target of the president in signing this Order is suspicious assets, not persons. Also, these suspicious assets are deemed to be subject of ongoing investigations or inquiries, meaning clearly that they are outside the purview of ongoing prosecution or existing court proceedings. Executive Order No.6 in its schedule would, however, proceed to list a number of pending cases which have already been filed in court with extant charge numbers, taking order away from suspicious assets. So, from the outset, the schedule is fighting against the order itself.

An asset or a person is under investigation when it or he has not been subject of any court proceedings, as once a charge or information has been filed before a court of law, it is outside the province of investigation or inquiry; what is left is immediate prosecution. The logic here is that the prosecution will not prefer a charge against any person unless investigation has been concluded and a prima facie case has been established, necessitating the need to file an information against the suspect, in court. So, you cannot arraign a person before a court and at the same be claiming to be investigating the same person; it’s a huge contradiction, both in law and in fact. Thus, the locus classicus case of Ogor v. Kolawole (1983) 1 NCR 342, is very instructive on this point. In that case, the applicants had applied for a declaration that the orders remanding them in custody were unconstitutional and applied for the quashing of the orders. The magistrate had, in a charge against the applicants, refused the applicant’s bail in order to afford the police more time to conduct their investigation without interference and remanded the applicants in custody. Ayorinde J, (as he then was), in quashing the said remand order, gave a most logic and sound dictum as follows: “The reason given by the first respondent suggests that he was under the impression that the police had not completed their investigation of the offences supposed to have been committed by the applicants before the latter were brought to court.” His Lordship further went on to hold that by virtue of section 18 of the Criminal Procedure Ordinance (which has been replicated as section 31 of the ACJA), “it may be said that a police officer is expected to release a suspect in a criminal complaint on bail where investigations into the complaint have not be completed.”

The High Court judge therefore, in relying on Section 32(4) of the 1979 Constitution of Nigeria (now section 35(4) of the 1999 Constitution) held that it will be wrong in law and unconstitutional to incarcerate or keep an accused in custody, pending the completion of investigations into the complaint against him… It should be assumed that criminal cases when taken to court are ripe for hearing, not for further investigation, and that they are not there on mere suspicion, which cannot be regarded as reasonable suspicion as required under Section 32 (1)(c) of the Constitution (now 35(1)(c) of the 1999 Constitution).

It is, therefore, manifestly clear, that the executive arm of government cannot reasonably rely upon Section 5 of the Constitution to distrain assets of citizens that are subject of criminal prosecution in a court of law. It is a contradiction of the absurd. The prosecution, either through the police, the EFCC, ICPC, Customs, NAPTIP, etc, is part and parcel of the executive arm of government. The powers to be exercised by these agencies on behalf of the executive over suspects and their assets is limited in law, to when they are still under investigation. And that is why Section 31(1) and (2) of ACJA has granted wide powers to the executive to deal with this. However, once a person has been arraigned before a court of law, he leaves the realm of suspicion or investigation by the executive.

Section 5 (1) (a) and (b) of the 1999 Constitution provides as follows:

“Subject to the provisions of this Constitution, the executive powers of the Federation –

  1. Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of Government of the Federation or officers in the public service of the Federation; and
  2. Shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly to all matters with respect to which the National Assembly has, for the time being, power to make laws.”

It is trite that the constitution is seen as a body of fundamental principles or established precedents according to which the state and all its agencies are acknowledged to be governed. It is a charter, social code, canon, body of laws, rules and regulations which guarantees inalienable fundamental rights to certain freedoms inherent in human beings. However, executive orders as apparently seen in the current administration seems to negate from these basic principles, tenets of law and governance, as enshrined and guaranteed under the 1999 Constitution.

In the whole gamut of Executive Order No 6, there is nowhere reference is made to any law or regulation that the executive seeks to maintain, through this order, save to seek to preserve assets subject of criminal prosecution before the court. Section 5 does not confer any power on the executive to maintain or preserve pending court cases.

Just in the same way that Section 5 of the Constitution vests executive powers in the president, so also has section 4 thereof vest upon the legislature, the power of law making. That power is deemed to have been exercised for the promulgation of the 1999 Constitution which, in its sections 35 and 41 respectively, has granted the right to personal liberty and freedom of movement, to all citizens. These sections can be altered, either by amending the Constitution, or through judicial intervention, by the court, but surely the executive arm of the realm cannot rely upon Executive Order No. 6 of 2018 as the basis of tinkering with constitutional provisions. The liberty of a citizen is as sacrosanct as the right to life, it shouldn’t be toyed with or threatened just by the fiat of the executive arm. Ditto the freedom of movement.

The same Constitution has also empowered the courts, in Section 6 thereof, with the power of adjudication, in respect of all disputes. So, if the executive, either through the regular police force or specialised agencies such as EFCC or ICPC, has raised certain allegations against a citizen through an information filed in court, it becomes a dispute, which has entered the realm of judicial powers, taking such dispute completely away from the executive.

In this regard, it will be a constitutional aberration for the executive to submit a dispute before the court through an information already filed and entered in the court, and at the same time seek to regulate, take over or monitor the assets of persons already charged to court as defendants. That surely is not the purport of Section 5 of the Constitution, as the same document cannot be read to be fighting itself, to give powers to the courts and then at the same time empower the executive to steal those powers, through Executive Orders.

The doctrine of separation of powers, therefore, means that the three arms of government must function independently and without interference from another arm, save in situations of checks and balances, for the ultimate good of the state and the citizens.

In Executive Order No 6 of 2018, the executive arm is combining the power of legislation along with the power of adjudication, leading to a situation of dictatorship, conflict of interest and totalitarianism. That should not and cannot happen in a constitutional democracy. So, in this regard, resort to examples in Britain and other jurisdictions are unhelpful to interpret the express provisions of our own unique Constitution.

Indeed, there are other extant legislations, such as the EFCC Act, which contain ample provisions, for the interim or permanent forfeiture of assets subject of criminal prosecution, as to totally make Executive Order No 6 of 2018, unnecessary.

Executive Order 6 becomes manifestly illegal, the moment it listed several criminal cases already filed and pending before various courts, in its First Schedule, altogether numbering about 155. The executive arm cannot be dragging the issue of jurisdiction with a court properly created by the constitution, as courts are always mindful to guard their jurisdiction, jealously. Consequently, the courts should find no difficulty in striking down Executive Order No 6.

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Fayemi Appoints Olawale Fapohunda as Attorney-General of Ekiti State

Renowned Justice Sector Reform Lawyer and former Attorney-General of Ekiti State, Olawale Fapohunda has been reappointed by Governor of Ekiti State, Dr. Kayode Fayemi as the Attorney-General of Ekiti State.

Before his appointment, Fapohunda was Special Adviser, Legal Matters Honourable Minister Mines and Steel Development. He was responsible for the review of the Mining and Minerals Act and negotiations on the reopening of the Ajaokuta Steel Complex.

Fapohunda is best known for his work in the area of human rights and he is one of Nigeria’s leading experts in justice sector reform.

He is the Vice – Chairman, Federal Government Panel on the Implementation of Justice Sector Reforms, he was a two-term Commissioner of the National Human Rights Commission.

He is currently Vice- Chairman, National Committee for the Prevention of Torture. He is also the Chairman of Nigerian Military Human Rights Dialogue. It is to his credit that the Nigerian Army established human rights desks in all its formations in Nigeria. He has the distinct credential of serving on the Justice Sector Reform team of every Attorney- General and Minister of Justice in Nigeria since 1999.

He drafted and played a key role in the advocacy of several justice sector reform bills including the National Human Rights Commission Act, the Legal Aid Council Act, the Prisons Act, the Administration of Criminal Justice Act and the the Prevention of Torture Act.

He served as AttorneyGeneral Ekiti State between 2013-2014, during his tenure Ekiti State became the first state in Nigeria to open a register of sex offenders and the second state in Nigeria to pass the administration of criminal justice law.

Fapohunda drafted the Nigeria’s National Action Plan on Human Rights which is the basis for the evaluation of Nigeria’s human rights record especially at the United Nations.

He is acknowledged to have supervised the first comprehensive audit of the all the 234 Prison facilities in Nigeria.

He was Chairperson of the Nigerian Bar Association Justice Sector Reform Committee and a three-time recipient of the NBA Presidents Bar Excellence Award. He is a frequent contributor to THISDAY Law Page and writes in his Colum Serious Matters

Public sitting on SARS reform opens at Ikeja high court

– The public sitting, organised by Nigeria Human Rights Commission (NHRC), was attended by security agencies, lawyers, judges and civil society organizations – Stakeholders present at the sitting called on the federal government to equip and improve the welfare of the police The Presidential Hearing on the Reform of SARS held its public sitting in Lagos on Tuesday, November 13, with stakeholders calling on federal government to equip and improve the welfare of the police. The News Agency of Nigeria (NAN) reports that the public sitting, organised by Nigeria Human Rights Commission (NHRC), was attended by security agencies, lawyers, judges and civil society organisations. Speaking at the public hearing, human rights lawyer, Femi Falana, said the country could be effectively protected if the police was provided with the right equipment and training.
“There is need to equip and train the police. We have the best police as they usually come out on top whenever they go on international engagements. “There is urgent need to equip, train and improve their conditions of service and the sky will be their limit. “For example, when police make arrests, the suspect’s next of kin should be immediately contacted by the police through a phone call. “Also there should be video recorders to take suspects’ statements in the presence of their lawyer but you need to tell the government adequate funding is needed for all these. “Even the training of our policeman is colonial,” Falana said. He advised that courses on human rights be included in the police college curriculum. “Also, if damages are awarded against the police in court, the police personnel who caused the misdemeanor should be made to pay partly from his pocket, if he retired, the damages should be deducted from his pension,” he said. The executive chairman, Nigeria Human Rights Commission and the Panel Chairman, Tony Ojukwu, said the police sometimes resort to unprofessional actions when not provided with working tools. Ojukwu said the police needed proper funding to function effectively and urged police to also manage their funds well. The NHRC chairman said the society is under-policed and called for the creation of state police to remedy the situation. He said the panel was set up to address unending list of alleged unprofessionalism of SARS ranging from unlawful detention, torture, extra judicial killing and other cases bordering on human rights abuse. “The panel is to hear cases bordering on human rights abuse, review and render advice with the view of reforming the conduct of SARS and making other appropriate recommendations. “I commend the I-G on this reform and I want to appeal that the complainants be protected as I have received reports that some complainants are being harrassed. “I also want to appeal that recommendations of this panel be enforced so that we can have a better reformed SARS,” he said. The chief judge of Lagos state, Opeyemi Oke, represented by Justice Kazeem Alogba, said that there are good policemen but the bad ones among them had continued to tarnish the image of the police. The attorney general, Lagos state, Adeniji Kazeem, also represented by a director from the Directorate of Public Prosecution (DPP), Titi Shitta-Bey, emphasised the need to provide the police with necessary working tools. “The police needs to be provided with investigative tools so that they can see the need to do away with crude tools. “In Lagos, we have the DNA centers which helps the police in investigation. This should be emulated all over the country. “There is need to look at training, remuneration and the police working environment so that they can perform their duties according to the law,” she said. The director general, Nigeria Institute of Advanced Legal Studies, Prof Deji Adekunle, commended federal government for setting up the panel, adding that the effort should be channelled at upholding respect for fundamental human rights. The Lagos state commissioner of police, CP Edgal Imohimi, represented by DCP Ayuba Elkana, said that SARS commanders had continued to undergo training on human rights since the End SARS campaign started. He said the training would continue and gave assurance that there would be less cases of human rights abuses. NAN reports that the five-day public sitting holding at Ikeja high court will end on Saturday, November 17. PAY ATTENTION: Install our latest app for Android, read best news on Nigeria’s #1 news app In a previous report by Legit.ng, a renowned human rights lawyer, Femi Falana (SAN), has condemned the parade of suspects by the Nigeria police and urged them to put an end to it. Falana said this during a keynote address at the inauguration of the hearing of the south west Zone Presidential Panel on the Special Anti-Robbery Squad Reform. He said the act of parading criminal suspects by the police is against the principle of fair hearing and was a breach of the suspects’ fundamental human rights.