THE PROFESSOR’S PODIUM
Quite a number of legal practitioners must be familiar with any or all of the following true life scenarios:
* Two persons were struggling over the ownership of a parcel of land, each claiming to have bought from different landlords, each set of landlord claiming title to the land from time immemorial. While one of the competing buyers believed in the due process of law by filing a case in court to establish his ownership, the other party was more street wise and lodged a complaint of threat to life against his opponent. The otherwise non-performing Nigeria Police buoyed by a bogus complaint and a little elbow greasing by Mr. Street Wise Complainant, sprang into action arresting Mr. Due Process and charged him to court. Thus, it became difficult for him to maintain a civil suit against Mr. Street Wise Complainant unless Mr. Due Process can flex superior police muscle against him.
* Two individuals were engaged in the business of supplying various goods to third parties for a commission. Things went on smoothly for a while between Mr. Supplier and Mr. Agent until Mr. Agent became evasive and started to play hide and seek. When Mr. Supplier was not getting his money, he got frustrated and threatened to call in the police. He simply played into the hands of Mr. Agent who promptly reported a case of threat to life against him. The police sprang to life, arresting, detaining and charging Mr. Supplier to court for threat to life. So the hunter becomes the hunted and Mr. Supplier becomes too busy fighting for his liberty to be able to demand for money for goods supplied. In one real-life scenario, Mr. Supplier in fact reported Mr. Agent’s actions to the Economic and Financial Crimes Commission (EFCC), but EFCC’s gestapo-like actions only provided necessary ammunition to the fraudulent Mr. Agent who reported the EFCC’s activities as that of assassins who paid an unsuccessful visit to him at home.
* An employee left his one man employer unceremoniously. Mr. Employer was unwilling for employee to leave, so he lodged a false complaint of theft against employee with the police, who upon being properly mobilised sprang immediately into action, arresting, detaining and charging employee for stealing. Alternatively, Mr. Employer was unwilling to pay off employee. The persistent visit of employee to demand for his benefits was reported by Mr. Employer to the police as threat to life. Employee was arrested and had to contend not only with unpaid arrears of salary and benefits but also of criminal prosecution for threat to life.
* Two members of a local union vied for the juicy office of chairman and none was ready to give an inch or quarter to the other. Indeed, rather than do that, the smarter of the two lodged a complaint of threat to life against the opponent and the opponent’s retinue of hangers on readily provide evidence of hoodlums and assassins allegedly monitoring Mr. Complainant to eliminate him. The police with the necessary encouragement showed that they were not as weak as was generally believed or misconceived. So, Mr. Opponent and his supporters spent some months in and out of the police station till when elections took place giving Mr. Complainant the necessary edge to ‘win the election’ into the office of the chairman of the union.
The above scenarios are daily relived by thousands of Nigerians, and there must be very few lawyers ignorant of the monster of false accusation and the use to which it is put by dubious and mischievous complainants. Yet, there is little legal restraint for now on the activities of the growing army of arresters and blackmailers called complainants. Worried by this trend, I sought to conduct personal research into this area of the law and at the end of which enterprise I made the following observations:
1. The law on false accusation and giving false information to the police is woefully inadequate. In a 521 criminal offences code, only two sections deal with the making of false accusation and giving false information. See sections 125 and 126 of the Criminal Code.
While Section 125 deals with conspiracy to bring false accusation, Section 125A deals with making false statement. The latter provides a punishment of imprisonment for life if the offence for which the victim was accused would have attracted death or life imprisonment.
If the offence for which the victim would have been guilty is less than an offence attracting life imprisonment, fourteen years.
In any other case, the false accuser will get a maximum sentence of seven years. In the case of Section 125A (1)(b) which deals with the substantive offence, false accusation, the maximum sentence for the false accuser is one year.
2. It now became clear to me why the offence of false accusation has become rampant. It is only the conspiracy for the offence that is severely punished but the substantive offence gets a mere slap on the wrist - one year. Since the instances of the conspiracy to give false accusation is not common but the substantive itself, no wonder the spectacle of false accusation is spreading like wild fire with the active support of the police. Innocent citizens are being harassed by other criminally minded citizens to give up legitimate claims on the pains of arrest, detention and malicious prosecution for bogus offences, particularly the claim of threat to life. Both our National and State Assemblies ought to rise to the occasion by providing for stiffer penalties for any one found to have given false information or accused others falsely.
This is certainly a worthwhile exercise in constitutional law making than legislating on the so-called sexual harassment and indecent dressing bill.
The monster of false accusation needs to be tamed promptly; legislatively and through other legal means.
Thursday, February 28, 2008
Wednesday, February 20, 2008
'Kessington J: Tribute to a highly misunderstood legend' By Ademola Adewale
THE PROFESSOR’S PODIUM
Justice Abiodun Nuraini Kessington was no doubt unusual and unorthodox, even highly misunderstood but to those who knew him, he was an enigma, even a legend of some sort. Indeed, I make bold to say that in the area of criminal law and the law of evidence as it relates to criminal trial, Justice A.N. Kessington was in a class of his own both as a prosecutor and as a judge.
What Justice Kessington did not know about criminal law and procedure is not worth knowing. Among several leaders of the Bar today, it was customary for them to stock Sankay on Evidence; an Indian encyclopaedia on the Law of Evidence. Justice Kessington it was, who freely advertised the book by boasting that he neither read Aguda on Evidence nor Phipson Manual on Evidence but he crammed and regurgitated Sankay on Evidence from India.
Justice Kessington was so good in criminal law that even a S.A.N would not go unprepared to his court to conduct a criminal case unless he was prepared to take unwelcome tutorials in criminal jurisprudence or be taught the distinction between a S.A.N and San-San. Apologies to Late Justice Kessington. As already stated, Justice Kessington was ahead of his time in many respects. For instance, when it was yet a novel idea, Justice Kessington used to deliver lectures in various areas of criminal law and procedure and Evidence at the Nigerian Law School while he was yet in the Ministry of Justice as Senior State Counsel and later, Director of Public Prosecution. A pity no one had the foresight to put together his various lecture papers into a book form, they would have more educative reading than all the over celebrated but superficial works that now litter our book stands as legal texts. He was an extremely brilliant and able advocate who always had his law and principles of evidence at his finger tips, citing and quoting cases and statutes at will, word for word and page for page.
I once had the privilege of seeing him in his elements before a now retired judge. Mr. Kessington, (as he then was) as D.P.P on one particular day was sauntering along the corridor of the Old Court Building at Ikeja dressed in suit but not robed for court appearance only to be informed by a subordinate from the ministry, that there was a bail application involving the ministry before one of the judges. Before then, counsel for the applicant had taken full advantage of the ministry’s absence not only on his insistence to move his application, but to berate the ministry’s inability to respond to his application submitting that it was evidence of no defence or answer to his application. The applicant’s counsel went on and on about the strength of his application and his inability to concede an adjournment.
The then D.P.P came into the court to inform the court of the State’s interest in the matter even though at short notice. Mr. Kessington (as he then was) asked for a stand down, which the court readily granted. Mr. Kessington was to return fully robed shortly at which stage, the learned D.P.P took to shreds the applicant counsel’s application in his brilliant response impressively delivered with cases’ quotations and statutes flying in the air. The same applicant’s counsel who only a short while earlier was so cocky and unwilling to concede an adjournment was the one now pleading for an adjournment to deliver his final reply on points of law. The trial judge was to grant the request for an adjournment but not without verbal jibes from the then DPP thus: “See the man who was boasting a while ago is now afraid of Kessington.”
Though regarded as a pro-establishment man he was held in the highest esteem by all the genuine radical lawyers of his time; Chief Gani Fawehinmi S.A.N, Late Chief Kanmi Isola Osobu, Late Alao-Aka Bashorun, Dr. Olu Onagoruwa and much later Mr. Olisa Agbakoba S.A.N who was then beginning to cut his teeth as a human rights activist through the then (CLO) Civil Liberties Organisation, not only for his brilliance but for his forthrightness and sense of fairness and justice.
Opinions will always be divided about his suitability for the high and somber calling of a judge, which he boasted openly he got by a combination of providence and his closeness to the then head of state General Ibrahim Babangida. Two things his fiercest critics cannot deny him even in death are his keen sense of justice and his forthrightness.
He disliked technicalities with a passion particularly those aimed at preventing justice or using the law as a vehicle of fraud. He conveniently put aside all the fanciful technicalities of the law particularly in civil matters to do what he termed “Kessington Law or Kessington Justice” his own equivalent of substantial justice. He was a complete master of his domestic procedure which was a curious mix of the seriousness of a Court of Records, an ‘Icheoku’ or ‘Kotu Ashipa’ Session (old native/colonial court setup) and ‘Awada KeriKeri’ (local drama episode).
One particular session I had the opportunity to witness in his court best illustrates Kessington’s justice in action. The summary of the facts in issue from the goings on in court seems to be that: a certain merchant/trader from the ‘Omu Aran /Oro’ axis of the defunct Kwara State had taken a loan from a commercial bank. The bank not only wanted its principal back but with interest at rates which were ruinous to even the most hard working and sincere of borrowers. Both parties had expectedly prepared to engage in the usual legal acrobatics. When the case was called, counsel to both parties announced appearance. The Defendant’s (trader’s) counsel stood up to flag off the usual legal brickbats stating that he was having a preliminary objection to the Plaintiff’s i.e. Bank’s case.
Court: (Justice Kessington) completely ignoring lawyers introductory remarks:
“Baba Oro, Kilo de ti e ko fe san owo tie je? E ti wa si Eko, lati wo won laata! Ah, E beru Olorun Ooo!”
“You Oro town indigene, Why don’t you want to repay your debt? You came to Lagos to cream them off? You need to fear God oo”
Counsel for Baba Oro tried severally to interject and urge his client’s case through the processes filed, but made little headway until his client conceded to owing a particular reasonable sum as principal debt. All through, the bank and its lawyers were sitting pretty not believing their good fortune at seeing the learned judge pressured their recalcitrant debtor into admission, a feat they had not been able to achieve in spite of their best efforts. Alas, the triumph was short lived as Justice Kessington soon turned his attention on the bank’s representative in court ignoring all the pleas and protestations of the bank’s lawyer about having a clear cut case with no defence and an application to enter summary judgment.
Court: Mr. Bank Manager, “Olowo ele se efe pa KeteKete ni?” Tell me which business in Nigeria can yield the 18% you people (banks) are demanding. “Ika le yin won yi.” translated into English.
“Mr. Bank Manager, Shylock. Must you burden the donkey to death. Tell me which business in Nigeria can yield 18% in profit and still be able to repay your loan. You Banks are so mean and wicked.”
Just as he was with the other party Justice Kessington was unrelenting with the bank in spite of the best efforts of its counsel to get the court to steer the course of strict legalism. The court eventually got the Bank to accept a reasonable interest rate of 10% per annum. At this stage, his lordship quickly wrapped up proceedings by writing out his Kessington Judgment as consented to by both parties daring any aggrieved party to proceed on appeal against the consent judgment. This done, he promptly beckoned on his Registrar; “Willy Call the next Case.”
However, for counsel trained in the best tradition of legal brinkmanship, this short route to judgment was completely unacceptable, hence, his lordship had a few enemies. But at all times, he left no one in doubt about his preference for criminal cases by openly lamenting that; “I don’t like all these your civil matters and your technicalities, give me criminal cases and you will see Kessy in action.”
Justice Kessington was forthright to a fault. Based on certain personal experiences, he would not readily accept being addressed with the appellation: “My Lord” outside his court room. If you were to see him in a corridor, function or any place outside his court room and you were to greet him thus; “Good Afternoon, My Lord.” He would promptly respond, mid-way between jest and seriousness. “Don’t Lord me Oh! That is how Peter called Jesus Lord and denied him 3 times.”
Like the rest of us, he had his failings and weaknesses and was inclined to deal harshly if not ruthlessly with those who took advantage of his generosity of spirit or tried to scandalise his person. On one occasion, he lamented openly in court after being scandalised by a baseless petition against him. He retorted: “Wallahi Tallahi, if not that Mr. …….. were Ligali’s (Ayorinde C. J) brother, I would have sent him off to KiriKiri for at least 2 weeks to eat beans at Government’s expense.” While yet after another petition against him, he would lace his every side comment which were a regular feature of his court with sarcasm, such as; “95% of Nigerian Lawyers have no conscience” - stressing his every word.
Ironically, for a man who held Justice Kayode Eso in the highest regard, citing and quoting copiously from his lordships words with relish both as a Prosecutor and as a Judge with words such as; “The court is not a Robot”, his strange and unusual style of adjudication did not go down well with the Kayode Eso Panel on Judicial Administration who cited him for conducting his court in a manner unbefitting and unbecoming of a high court Judge or a Superior Court of Records.
I, personally knew Justice Kessington (or is it the other way round) through my late father, Alhaji Adisa Adewale, who was Justice Kessington’s contemporary, (not necessarily classmate) at Eko Boys High School, the Inns of court in England and Old Rivers State Ministry of Justice; where both served in different capacities - my dad as a Magistrate in Port Harcourt and Degema and Justice Kessington as State Counsel.
Adieu, Baba Kessy! Omo Eko gangan, indefatigable father of children both made in England and Nigeria, Prosecutor and Criminal Law Jurist par excellence!
Justice Abiodun Nuraini Kessington was no doubt unusual and unorthodox, even highly misunderstood but to those who knew him, he was an enigma, even a legend of some sort. Indeed, I make bold to say that in the area of criminal law and the law of evidence as it relates to criminal trial, Justice A.N. Kessington was in a class of his own both as a prosecutor and as a judge.
What Justice Kessington did not know about criminal law and procedure is not worth knowing. Among several leaders of the Bar today, it was customary for them to stock Sankay on Evidence; an Indian encyclopaedia on the Law of Evidence. Justice Kessington it was, who freely advertised the book by boasting that he neither read Aguda on Evidence nor Phipson Manual on Evidence but he crammed and regurgitated Sankay on Evidence from India.
Justice Kessington was so good in criminal law that even a S.A.N would not go unprepared to his court to conduct a criminal case unless he was prepared to take unwelcome tutorials in criminal jurisprudence or be taught the distinction between a S.A.N and San-San. Apologies to Late Justice Kessington. As already stated, Justice Kessington was ahead of his time in many respects. For instance, when it was yet a novel idea, Justice Kessington used to deliver lectures in various areas of criminal law and procedure and Evidence at the Nigerian Law School while he was yet in the Ministry of Justice as Senior State Counsel and later, Director of Public Prosecution. A pity no one had the foresight to put together his various lecture papers into a book form, they would have more educative reading than all the over celebrated but superficial works that now litter our book stands as legal texts. He was an extremely brilliant and able advocate who always had his law and principles of evidence at his finger tips, citing and quoting cases and statutes at will, word for word and page for page.
I once had the privilege of seeing him in his elements before a now retired judge. Mr. Kessington, (as he then was) as D.P.P on one particular day was sauntering along the corridor of the Old Court Building at Ikeja dressed in suit but not robed for court appearance only to be informed by a subordinate from the ministry, that there was a bail application involving the ministry before one of the judges. Before then, counsel for the applicant had taken full advantage of the ministry’s absence not only on his insistence to move his application, but to berate the ministry’s inability to respond to his application submitting that it was evidence of no defence or answer to his application. The applicant’s counsel went on and on about the strength of his application and his inability to concede an adjournment.
The then D.P.P came into the court to inform the court of the State’s interest in the matter even though at short notice. Mr. Kessington (as he then was) asked for a stand down, which the court readily granted. Mr. Kessington was to return fully robed shortly at which stage, the learned D.P.P took to shreds the applicant counsel’s application in his brilliant response impressively delivered with cases’ quotations and statutes flying in the air. The same applicant’s counsel who only a short while earlier was so cocky and unwilling to concede an adjournment was the one now pleading for an adjournment to deliver his final reply on points of law. The trial judge was to grant the request for an adjournment but not without verbal jibes from the then DPP thus: “See the man who was boasting a while ago is now afraid of Kessington.”
Though regarded as a pro-establishment man he was held in the highest esteem by all the genuine radical lawyers of his time; Chief Gani Fawehinmi S.A.N, Late Chief Kanmi Isola Osobu, Late Alao-Aka Bashorun, Dr. Olu Onagoruwa and much later Mr. Olisa Agbakoba S.A.N who was then beginning to cut his teeth as a human rights activist through the then (CLO) Civil Liberties Organisation, not only for his brilliance but for his forthrightness and sense of fairness and justice.
Opinions will always be divided about his suitability for the high and somber calling of a judge, which he boasted openly he got by a combination of providence and his closeness to the then head of state General Ibrahim Babangida. Two things his fiercest critics cannot deny him even in death are his keen sense of justice and his forthrightness.
He disliked technicalities with a passion particularly those aimed at preventing justice or using the law as a vehicle of fraud. He conveniently put aside all the fanciful technicalities of the law particularly in civil matters to do what he termed “Kessington Law or Kessington Justice” his own equivalent of substantial justice. He was a complete master of his domestic procedure which was a curious mix of the seriousness of a Court of Records, an ‘Icheoku’ or ‘Kotu Ashipa’ Session (old native/colonial court setup) and ‘Awada KeriKeri’ (local drama episode).
One particular session I had the opportunity to witness in his court best illustrates Kessington’s justice in action. The summary of the facts in issue from the goings on in court seems to be that: a certain merchant/trader from the ‘Omu Aran /Oro’ axis of the defunct Kwara State had taken a loan from a commercial bank. The bank not only wanted its principal back but with interest at rates which were ruinous to even the most hard working and sincere of borrowers. Both parties had expectedly prepared to engage in the usual legal acrobatics. When the case was called, counsel to both parties announced appearance. The Defendant’s (trader’s) counsel stood up to flag off the usual legal brickbats stating that he was having a preliminary objection to the Plaintiff’s i.e. Bank’s case.
Court: (Justice Kessington) completely ignoring lawyers introductory remarks:
“Baba Oro, Kilo de ti e ko fe san owo tie je? E ti wa si Eko, lati wo won laata! Ah, E beru Olorun Ooo!”
“You Oro town indigene, Why don’t you want to repay your debt? You came to Lagos to cream them off? You need to fear God oo”
Counsel for Baba Oro tried severally to interject and urge his client’s case through the processes filed, but made little headway until his client conceded to owing a particular reasonable sum as principal debt. All through, the bank and its lawyers were sitting pretty not believing their good fortune at seeing the learned judge pressured their recalcitrant debtor into admission, a feat they had not been able to achieve in spite of their best efforts. Alas, the triumph was short lived as Justice Kessington soon turned his attention on the bank’s representative in court ignoring all the pleas and protestations of the bank’s lawyer about having a clear cut case with no defence and an application to enter summary judgment.
Court: Mr. Bank Manager, “Olowo ele se efe pa KeteKete ni?” Tell me which business in Nigeria can yield the 18% you people (banks) are demanding. “Ika le yin won yi.” translated into English.
“Mr. Bank Manager, Shylock. Must you burden the donkey to death. Tell me which business in Nigeria can yield 18% in profit and still be able to repay your loan. You Banks are so mean and wicked.”
Just as he was with the other party Justice Kessington was unrelenting with the bank in spite of the best efforts of its counsel to get the court to steer the course of strict legalism. The court eventually got the Bank to accept a reasonable interest rate of 10% per annum. At this stage, his lordship quickly wrapped up proceedings by writing out his Kessington Judgment as consented to by both parties daring any aggrieved party to proceed on appeal against the consent judgment. This done, he promptly beckoned on his Registrar; “Willy Call the next Case.”
However, for counsel trained in the best tradition of legal brinkmanship, this short route to judgment was completely unacceptable, hence, his lordship had a few enemies. But at all times, he left no one in doubt about his preference for criminal cases by openly lamenting that; “I don’t like all these your civil matters and your technicalities, give me criminal cases and you will see Kessy in action.”
Justice Kessington was forthright to a fault. Based on certain personal experiences, he would not readily accept being addressed with the appellation: “My Lord” outside his court room. If you were to see him in a corridor, function or any place outside his court room and you were to greet him thus; “Good Afternoon, My Lord.” He would promptly respond, mid-way between jest and seriousness. “Don’t Lord me Oh! That is how Peter called Jesus Lord and denied him 3 times.”
Like the rest of us, he had his failings and weaknesses and was inclined to deal harshly if not ruthlessly with those who took advantage of his generosity of spirit or tried to scandalise his person. On one occasion, he lamented openly in court after being scandalised by a baseless petition against him. He retorted: “Wallahi Tallahi, if not that Mr. …….. were Ligali’s (Ayorinde C. J) brother, I would have sent him off to KiriKiri for at least 2 weeks to eat beans at Government’s expense.” While yet after another petition against him, he would lace his every side comment which were a regular feature of his court with sarcasm, such as; “95% of Nigerian Lawyers have no conscience” - stressing his every word.
Ironically, for a man who held Justice Kayode Eso in the highest regard, citing and quoting copiously from his lordships words with relish both as a Prosecutor and as a Judge with words such as; “The court is not a Robot”, his strange and unusual style of adjudication did not go down well with the Kayode Eso Panel on Judicial Administration who cited him for conducting his court in a manner unbefitting and unbecoming of a high court Judge or a Superior Court of Records.
I, personally knew Justice Kessington (or is it the other way round) through my late father, Alhaji Adisa Adewale, who was Justice Kessington’s contemporary, (not necessarily classmate) at Eko Boys High School, the Inns of court in England and Old Rivers State Ministry of Justice; where both served in different capacities - my dad as a Magistrate in Port Harcourt and Degema and Justice Kessington as State Counsel.
Adieu, Baba Kessy! Omo Eko gangan, indefatigable father of children both made in England and Nigeria, Prosecutor and Criminal Law Jurist par excellence!
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