Saturday, December 5, 2009
‘VARSITIES ARE TO BLAME FOR SORE POINT OF LEGAL PROFESSION’
Background
OLUREMI Jacobs, the Chief Judge of Ogun State says law was not his choice although his father's influence took the centre stage as he was forced, to abandon English and drama which he had purposed in his heart to study.
Although Mr. Justice Jacobs who is perhaps the longest serving Chief Judge in Ogun State, would have ended his career as an artist following his avowed love for the Laureate Professor, Wole Soyinka, he
however, expressed no regrets studying law as the profession had not only gave him fame but ranked him as one of the best brains in the nation's judiciary.
He told the Nigerian Compass his foray into the profession he called the oldest profession in the world, this way: "I was born in Lagos in 1946.I attended St. Paul Primary School Lagos, thereafter I proceeded to Baptist Academy, Lagos.
After my secondary education, I proceeded to the most popular University in Nigeria, the Obafemi Awolowo University Ile-Ife then the University of Ife, thereafter the Nigeria Law School.
I must add that my father was also a lawyer and I didn't want to read law, I must be frank with you. I wanted to read English and Drama because I love Professor Wole Soyinka and Literature as well. I love to observe nature. I used to observe the trees at night, the sky and the stars. And all these are very romantic and they are in the line of arts. So I saw myself as an artist. So when my father said will you read law ? I did not like it. I only enter law in Ife and other universities, I put in for English and Drama and no other university gave me admission except Ife. So as time progressed I began to see that if you let go you see the hands of God in your life. There are a lot of things that happened to me while I was growing up. For example, my name is Remi Jacobs my mates in-school called me Remi J, you know Remi J means Justice Remi? In 1973 or 74, I don't know if you know Funke Adekoya (SAN) in Lagos, she called me Remi CJ and it was during my 60 birthday that she reminded me that "Do you know that I
used to call you Remi CJ?" What I am saying is that all these things are prophetic. If you are sober and you sit down there are times you will know when God is speaking to you. I want to say that although people believed that I was born with sliver spoon in my mouth because my father was a lawyer and my
mother was a big businesswoman and so on but the sliver spoon was not put in my mouth when I was born. I really think that it was God that put the sliver spoon later".
Choice of career
Let me tell you, I had to read law to honour my father's request. Shortly after I became a lawyer, I opted for work with the Cooperative Bank and the then General Manager of the bank, the late Chief Onagoruwa said, look go and start practice. I didn't want to practice because my father was in practice and I didn't want to work with my father at all. So I thought I should hide and work in a bank and the man who should have employed me was the one telling me to go and practice.
He gave me his old chambers and I moved in there and I found out after leaving law school that it is not easy if you want to be a good lawyer and then go into practice, you need to go and understudy respectable and professional lawyers. So I joined Odunlade for four months but I did not like the setting.
There was a time I came for a case in Abeokuta, if I tell you how I came for the case you will laugh. I had to handle a matter in Ibadan and it was urgent, it was a problem between the muslims and they said they were coming to disrupt service on Friday. So I went before the Magistrate's court to get an order to restrain them. The other side did not come to court and the magistrate said he was not going to grant an order unless he saw them. I had to go on a Wednesday so that I could get the order before Friday but we had a case for Wednesday at the High Court. So when I got to Chambers, my senior partner was so angry that he insulted me in the presence of litigants. So when I came for the case in Abeokuta, one of the litigants who was present when I was ridiculed by my principal, told the Magistrate that his lawyer could not come to court but sent his clerk. The litigant referred to me as .a clerk, and I conducted that case satisfactorily well and it was my brilliant performance that made a senior lawyer present in court to give me a job in his chambers. I was being paid N100 monthly whereas the senior lawyer who offered me job in his chambers paid me N100 a week, so I quickly jumped at it.
The deal also gave me the freedom to handle my personal cases. So that was how I started my practice here in Abeokuta and I was in practice for a long time till I became a Judge. So I will say that God has been faithful and I must say somehow, he directed me to read law.
Pupilage
I served under Odunbiyi. He also later became a judge. A complete gentleman, soft- spoken, very thorough and he have a fatherly disposition. He made things very easy for me that I did not regret working with him. With the benefit of hindsight I think it is the best thing that has ever happened to me. I don't know what may have happened if I had stayed back at my father’s chambers in Lagos I can not say
My father's chambers in Lagos
My lather died in 1988 but before he died I had made up my mind about what to do. So one of my father's junior took over the running of the chambers. He too is old now and don't go there again.
The Bar and the Bench
I will tell you that it is unfortunate; it is not only the Bar but the society generally. The standard is falling by the day. I remember one day a lawyer was in black jeans, nobody has to teach you if you go through the law school you have to embrace the culture. There is no more difference between the police and the Bar. When we were young if you see a magistrate passing by you had no choice other than to wait and have a look at him but now the reverse is the case.
In those days either a judge was in Chambers or not one was always afraid to pass by his chambers, even in the Ministry of Justice when junior lawyers sees a senior lawyer he or she would stand to greet the senior lawyer. But what do we have today? It has now reached a stage where the juniors would greet his seniors by a mere wave of hands; Oga how are you? In practice, one thing still stands out and that is decorum.
Some lawyers would come to court only to give the judge a fight but you give a judge a fight on law but not attitudinal type of disrespect to judge. The judge is a human being and he too will have to react somehow. The law is the oldest profession and it is also a noble profession many people have contested this and we have told them that look what God did first was to make the law. He said 'let there be light'.
Legal education in Nigeria
Like I said, it is a societal problem, standard is really falling. If you look at the authorities of the law school, they are trying very hard to improve the standard. Most universities in the country today are producing half-baked graduates. Sometime when you speak with some of them you will be disappointed. One very important aspect of the practice of law is the language. You must be able to use language to your advantage but today you found out that some of these lawyers lack education and to make up for it they now employ rudeness just to impress litigants. Unfortunately a lot of the litigants are illiterates, they look at the drama and they conclude that the man is courageous, the man is very bold. These are the areas I discovered indequacies and I am trying to see what can be done about it. There are different committees of the NBA where reports are being lodged so that some of these wrongs can be corrected.
Embarrassing moments
One day I was in the magistrate's court and there was a boy charged for wandering. He pleaded guilty but while the police were stating the fact of the case I discovered that they did not justify the conviction for wandering.
So I got up as amicus curiae, a friend of the court to defend this boy .While I was talking and the magistrate was writing, suddenly I discovered that some people were laughing behind me. Then I looked back and I saw the boy saying in Yoruba, "Se e ma bo mi ni "(Are you going to feed me?). I was just performing my constitutional duty but unknown to me the boy wanted to go to jail. It was very embarrassing because the magistrate, having agreed with my submissions that the fact of the case must sustain the charge even when the accused person had pleaded guilty.
TO BE CONTINUED…
CONTINUED FROM LAST WEEK…
...As a Judge
When I was handling the Gani Adams case, his lawyers came that I should give their client bail and the Ministry of Justice did not oppose the application, so why should I keep him in custody when those that should oppose the bail never opposed? So I released him and the police got angry and withdrew my orderly. By coincidence a week later I became the Chief Judge then the same Commissioner of Police that withdrew my orderly sent an assistance to come and control traffic leading to my house.
That was how he started sending people to come and talk to me. It was very embarrassing that because I did my job, you withdrew my orderly. God has a way of doing things as I was going to react by sending the accused person to be remanded in police custody when someone told him and he says "ha! let's go and beg him o" so he sent one of my closest friends to beg me. I always say something that this is not the power that is mine. Power belongs to God and I am holding the power in trust for God. I am very conscious of that, what I would not do as Remi Jacobs ,.I will not do it as the Chief Judge. I may be wrong but that is the way I see it.
Appointment as Chief Judge
I was not even thinking of any appointment all I was thinking about was my comfort. After my father died we had to start administering what he was doing, we're only two ;myself and my brother. The former Chief Judge , Justice Delana. when I was the chairman of the Bar Association we had a discussion on the Bar and when I was leaving he said Remi why don't you join us?
I said let me think about it, so he said I should go and think about it. I didn't even know how 1 was appointed all I knew was that one judge ask ed for my C.V and I suspected that that judge nominated me. The beauty of this judgeship is that you don't apply, you are appointed. So you feel the joy when you are appointed, it is a recognition of your rare qualities. It is- now becoming worrisome when people come to sit in front of you and say my lord I want to become a judge, how do I go about it? I think it has to do more with the situation in the country because some of these people when they see that practice is not moving on fine ,then the next thing is to say I want to become a judge. It is unfortunate because it robs the Bench of the best. The beauty of it is that you should be begged to come to the Bench. I have a judge I begged him to become a judge, I really begged him to accept the appointment. I mean that is the beauty of it.
There are things that I cannot tell you about this Chief Judge or no Chief Judge. You know there was this controversy here and there, we were two and I was the most junior and the other person was the most senior. While this thing was dragging on for a long time then at a stage Abuja said that look let's put a stop to this thing and there was a meeting in July where further deliberations were adjourned to October. But as God would have it, nobody remembered that the other person was to retire in August of that year while the matter was being fixed for a latter date. So by the time they were to meet in October it was only my name that was before them. As a matter of fact someone said that are you not lucky that you're the most junior? Four of us were appointed and I was the most junior in my set. So I knew that it was very likely that I will become the Chief Judge one day but not at the time 1 was appointed the Chief Judge. So if you look at it since 1 was the youngest all the others retired before me. Then will I say it is because I am brilliant? Or because I know how to do it? No, it is God.
And because I never lobbied for it or expected it when it came I was literally humbled. That day I was just saying God is this the way you do your things? Do you know that it was only a day before that day that the Governor saw me eye to eye? He told his aides to go and bring me as it will be embarrassing to swear in the number one man in the state judiciary without knowing him physically before hand.
As chairman armed robbery and fire arms tribunal
Let me tell you one funny thing about it. When I became the chairman of the tribunal, I became very conscious of the position and I prayed to God that my experience will not affect my decision. So the first person I sentenced to death, because there was no appeal against my decision I could not sleep very well. I was very much afraid that supposing that I wrongly sentenced this boy, his blood will be on my head and I became very restless.
However, the day the boy was killed he confessed. We have this saying in law that it is better for 99 guilty persons to go free than for one innocent man to be condemned. So man's judgments are still subject to God's review
Judges, threats and judgement
Not really because I am not afraid of anybody, in fact I dare anybody. There was this case I don't know whether to call it interesting or not, there was a boy charged for snatching a car. The lawyer who was the defence counsel was the complainant that gave the car out for sale but thereafter changed it to stealing. I almost believed him just as I had adjourned for judgment and my judgement was ready and I called my clerk and messenger, asking them to pray for me because of the decision I had taken in the matter.
So one day, a man wanted to see me desperately and I asked the policeman to come in with him and then I asked him what the problem was. The fact was that the lawyer of that accused had another matter before another judge where he gave the same defence. I had finished writing my judgment and I was going to discharge him so when I had what the man said, I sent my clerk to get me the case file. After
retrieving the file and discovered the same defence, what else should I do other than to convict him. My experience did not affect my job at all and fortunately for me most of them confessed before they were killed.
Judges, Magistrates performance in the state
Let me say this sincerely, I think that we are blessed in Ogun State. It is true because we are human beings we are not perfect but I tell you anywhere lam, I'm very proud of our judges. Before now, there were some doubts about one or two but as things stands today I can vouch for almost everybody on the Bench . Even there are lot of improvement at the magistrate’s court because for the first time Magistrates were given cars, it has never been so before. Judges are also having jeeps the magistrate's court because for the first time Magistrates were given cars, it has never been so before. Judges are also having Jeeps.
Ogun and other states
You see the thing is this, most states hid what they have. Most of the oil rich states are not more comfortable but we still thank God that there are some improvements. I don't want to compare because I was once accused of running down the former administration. I am a human being if you are nice to me, I have to acknowledge that you are nice to me. Otherwise even if you are not, there is God that sees everything. It will be very unfair for you to take care of me and for me to deny. The executive and the judiciary We have mutual respect. I think that in spite of what the executive has done for us that cannot affect our decisions. I must say again that we have a very cordial relationship. The Governor will not interfere in our activities. He will always ask, CJ are you all right? Let's face it we are human beings too.
10 years of judiciary in a democracy I will say that we have done our best and we will keep doing our best. You see the point is this, let's take a typical case one party on the right and one party on the left, one of the parties will always complain that the judge is not fair to them. We are used to that kind of things. The only thing is that once you do what is right your conscience is free. But don't forget one thing that the judge is a human being and we apply the law and the law is always right. We have two lawyers on both sides trying to persuade him and then he had to go along with one of them, he may be wrong and that is the reason there is appeal court , presided over by there persons who will then reconsider what one person has done. Then seven people will still sit to reconsider what they decided. One must be conscious that we are not perfect but what we will not be able to defend is what is glaring . For instance, when you say 2+ 2 =4 and you now say 4+ 4 =7, that is fraud. If a judgment is fraudulent you will know because it is like a building. You state your case, you put in your evidence and then you are building and all of a sudden the building started collapsing, you would definitely see that there is a problem somewhere.
Cases and their challenges
The Alake case because of the controversy that surrounded the case. At a stage I had to threaten parties with order of arrest. Sometimes a judge need to behave like a mad man, the case was very challenging but at the end of the day I thank God.
SANs and the court
No, you see if you are a new judge, may be you can be intimidated by SANs appearance but then as a judge, you must be the master of your court. The first thing to do when you have such a situation is to stamp your authority on the court. If you don't take control of your court that would be very unfortunate.
I once had a very funny incident long before I became the Chief Judge, not even a senior judge. I was in Ota and the court was full to capacity that day and a SAN got up and told another lawyer to shut up. Apparently foreseing an ugly incident, I came to the rescue of the junior lawyer by simply putting a stop to his excesses. I simply said 'I am here". So you stamp your authority. The SANs too are human beings, they will like to test your patience and your knowledge of law. At times they throw some nasty things at you.
Abolition of SANship
I don't support that because if you abolish, the title of SAN, what other title would you confer on lawyers who distinguished themselves? The only thing is that the process should be re-visited so that the awardees should be those who merit the prestigious title. So when you talk about SANship, the awardees must be highly cultured in their address to the court including their interpersonal relationship with the juniors. Above all a SAN must be a credit to the profession.
But the way it is going, some lawyers are saying the process is no longer transparent as it has become ' a man know man' affairs. However I want to say that the system is alright but if there is a fraud I am not aware. When you send your CV the secretariat would check the CV. Now the Privileges Committee will now cross-check the CV and this included the cases submitted whether they are correct. There is a boy that was disqualified because he used his father's judgment as one of the cases he presented.
We tried to do all that to ensure that the process is transparent. But people are saying that some people are influencing the process, this I don't know. What I know is that the people appointed are the qualified ones.
Attorney General Office and the Minister of Justice
I think the Attorney General of the Federation should be able to prepare his cases without any dictation from the executive. The AG decides cases that should go to court and those that should not go to court. Don't you think that when a matter affects the executive and he is a member of the executive, there is a tendency for him to say take it to court. The court should not be a dumping ground. I think that the AG office should stand on its own while the Minister of Justice who is a member of the executive should advise them on legal issues.
Culled from Compass Thursday, November 19, 2009
Friday, November 27, 2009
WHY HAVE WE LOST CONFIDENCE IN THE PROCESS OF DISCIPLINING LAWYERS IN NIGERIA?By Ademola Adewale
Introduction:
While it is true that after a long period of lull in activity, the Disciplinary panels of the Nigerian Bar Association, NBA, have suddenly roared into life from deep seated slumber not all lawyers are genuinely impressed by this sudden burst of life by the disciplinary wing of the legal profession. The pertinent question to ask at this juncture is why the seemingly noble desire of the leadership of the Bar to cleanse the profession of unworthy and unbecoming members does not seem to generate the necessary enthusiasm from a cross section of the profession? Is it that lawyers have gotten used to the freewheeling, morally, lax practice of many a practitioner in recent times as to resist any attempt to restore sanity to the profession or do most lawyers have good reasons to distrust the current drive to instil discipline within the rank and fife of legal practitioners?
The theme of this paper "Why have we lost confidence in the process of disciplining lawyers in Nigeria? attempts to provide answers for this moral dilemma.
The Nigerian legal profession with its roots in the English Legal Profession is regarded as a learned and noble profession fit only for persons from the educated elite of great learning and high moral character. Nothing less is good enough for the Bar. To that extent the Bar has over the ages sought to ensure that legal practitioners are guided by the highest professional standards in the practice of the profession. The 2007 Rules provide that "A Lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and shall not engage in any conduct which is unbecoming of a legal practitioner". So if this be the lofty objective for enforcing discipline at the Bar how come many lawyers have lost confidence in the system?
A number of reasons have been given for the lukewarm attitude of lawyers to the discipline of their colleagues, this reasons include, manifest bias by the Disciplinary authorities, the presence of Morally Compromised adjudicators on the Panels, Double standards in the treatment of erring senior and junior lawyers, improper composition of
panels, absence of due process in the conduct of the affairs of the panel, undue haste to strike out erring lawyers for the flimsiest of reasons where on the other hand lawyers who get a reprieve either do not get an apology or adequate publicity for their escape from the sledgehammer. These reasons are by no means exhaustive of the lack of enthusiasm with which lawyers treat the disciplining of their colleagues. Nonetheless, we shall examine in greater details some of the reasons alluded to above.
Biased umpires
Recently at the commencement of one of the sittings of the Appeals Tribunal of the Disciplinary Committee, the Chairman of the Committee was quoted to have made the opening remark that the Panel in recent times has been inundated with a deluge of complaints of unethical and sharp practices against lawyers particularly in the area of Lawyer/Client relationship in the area of money and the determination of the panel to deal decisively with these complaints by ridding the profession of Bad eggs. Thankfully, very seasoned Senior Advocate of Nigeria, Chief G.O.K. Ajayi SAN in attendance on behalf of a client on the occasion was recorded to have expressed his displeasure at the punitive agenda of the panel as declared by the Chairman. Chief Ajayi SAN was quoted famously to have said "It does not matter even if there are 10,000 petitions against Legal practitioners, the fact remains that the Respondents are presumed innocent until allegations are proved. Your committee should therefore not give an impression that you are being influenced by the increasing number of petitions. It is not your business to be bothered about the number you are to do justice"
However, this admonition by the highly revered legal icon hardly seems to have had any sobering effect on the Legal Practitioners Appeal Tribunal Chairman who has consistently repeated the determination of his panel to show deviant lawyers the way out of the profession. Thus, every lawyer standing trial before the disciplinary committee attends every sitting with trepidation that his fate is sealed irrespective of probable innocence or valid defences to charges of unethical and unprofessional conduct. Certainly, there can be no confidence in such.
Disciplinary Proceedings where the practitioners on trial are presumed guilty contrary to constitutional presumption of innocence under Section 36 (5) of the 1999 Constitution, all because of the pressure to prove to the doubting public that something is being done to dial with unethical conduct at the Bar. Yet the same profession or at least an arm of it is expected to dispense justice without fear or favour to all manner of men, but ironically is not expected to extend the same fundamental guarantees to colleagues standing trial for disciplinary proceedings many of whom have been cited unfairly by a recalcitrant and belligerent client(s).. This prevalent persecution mentality has the potential of completely eroding the confidence which lawyers have in the ability of Disciplinary tribunal to try every case dispassionately. No amount of pressure should displace the constitutional duty or\disciplinary panels to be fair to each and every complainant and respondent lawyer. As stated in the Supreme Court case of Ndu V. State. The court (by extension the Panel) has a constitution duty to be fair to all sides to a case/ be it Plaintiff or Defendant, Prosecution or Accused are entitled to a fair hearing which does not contemplate a standard if justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes and ambidextrous standard of justice in which the court must be fair to both sides of the conflict".
Let every disciplinary proceeding be conducted in an atmosphere of fairness and objectivity devoid of bias or prejudice in favour or against any party.
Closely related 'to the last consideration is the presence on many of the Disciplinary panels of persons be they judicial officers or practitioner's who are disqualified by reason of one factor or another from sitting on a particular panel(s) or any panel for that matter. One will think that lawyers learned in the principles of bias and prejudice will do all in their power to ensure that persons with any disqualifying properties do not sit in judgment over others as laid down in a long time of cases. In the celebrated case of LPDC V. Fawehinmi6 the fact that the same office of the Attorney General of the Federation that laid the complaint of unprofessional misconduct was the same person to preside over the disciplinary proceedings was enough to nullify the proceedings. In another celebrated case of Denlove V. MDPDT the presence of lawyer to the complainant on the disciplinary tribunal that tried a Medical Doctor was enough to vitiate the said disciplinary proceedings while in yet another celebrated case Yesufu V. University of Maiduguri the presence of the Vice-Chancellor of the University of Maiduguri who was the Chief Complainant against the students facing disciplinary proceedings as Chairman of the said disciplinary panel completely nullified such proceedings. However on the present state of the law as decided in the recent Supreme Court case of Ndukwe V. L.P.D.C.. it appears that the presence on a tribunal of a disqualified person may not necessarily vitiate the said disciplinary proceedings. This is" yet another reason for worry and lack of confidence by practitioners in the impartiality and fairness of modern day disciplinary proceedings. The point may however be made that the distinguishing facts in the Ndukwe's case is that the erring member on the panel Mr. N. Nwanodi SAN did not take part in the proceedings neither did he sign the decision of the panel, thus his mere presence was held to be insufficient to affect the substance of the panel's decision. But the pertinent question is, could he not have used his presence on the panel to influence the decision of the panel, if he had an interest in the matter? This pattern of decision is certainly worrisome and capable of overturning the well established principle against membership of disciplinary panels by members suffering one legal incapacity or the other. Another reason why lawyers no longer have no confidence in disciplinary proceedings in Nigeria. This attitude of playing down the presence of disqualified members on disciplinary panels is already playing out in some of the ongoing proceedings such as the Disciplinary proceedings between the Legal Practitioners Disciplinary proceedings and Mr. Adesina Ogunlana 9a where one of the members of the disciplinary panel recently lodged a complaint against the same Respondent over another issue. Yet the said member a Senior Advocate of Nigeria and former General Secretary of the Bar saw nothing amiss in remaining a member of the disciplinary panel even while he still has a ' pending complaint against the said Respondent in another matter contrary to the elementary principle of law that a man should not be a judge in his own cause - Nemo judex in causa sua.
Related to the immediate foregoing is the role of prosecutors who are no better or even worse than the lawyers facing disciplinary proceedings. Given the seriousness of disciplinary proceedings which in appropriate cases lead to the erring lawyer being struck off the list of legal practitioners.
See Section 11 of the Legal Practitioners Act 2004 and the case of Okike V. LPDC (No. 2)
It is expected that lawyers saddled with the onerous responsibility of bringing deviant colleagues to book must be lawyers of the highest moral and professional integrity. Sadly, this is not always so as only recently one of the leading LPDC prosecutors Mr. Dele Oye was cited for his involvement in the ongoing Banking Industry scandal.
Earlier, although uncelebrated, one of the Counsel who had deliberately acted contrary to his client's instructions not to compromise a suit in a manner highly suggestive of fraud in the Supreme Court decision in Vulcan Gases V. G.I.V. had nevertheless sat with others on the Disciplinary Panel to determine the fate of other less fortunate colleagues with some legal practitioners inevitably struck out. A classic illustration of the pot calling the kettle black. Little wonder that Nigerian lawyers have lost confidence in the disciplining of lawyers, when those who have a log in their eye dare to point out the speck in their neighbours eye.
Yet another sore point amongst lawyers is the perceived double standard in the, treatment of professional misconduct involving very senior lawyers particularly Senior Advocates of Nigeria SAN and young lawyers. While the disciplinary panels are very quick to wield the big stick in respect of misconduct by junior Counsel and non - SAN: lawyers have been suspended for defrauding clients as little as N28,000.OO while there have been instances of Senior Advocates alleged to have converted client's money being allowed adequate time to make a refund. And indeed in the case of the more certain allegations of unprofessional communications between some Senior Advocates of Nigeria and certain members of the disbanded Osun State Election Tribunal nothing has been heard about the case ever since, not even whether the allegations are true or not, yet had some lesser mortals been involved, heads would have literally rolled by now. It is this type of double standard that continue to account for the dwindling confidence of Nigerian lawyers in disciplinary proceedings.
Also in the same vein is the different approaches to the prosecution of disciplinary matters while the prosecution of some disciplinary proceedings is promptly undertaken resulting in the striking out, suspension or admonition of the Counsel concerned such that where the LPDC is keen on prosecution the defence who delays does so at his own peril. This is what occurred in the celebrated case of Okike V. LPDC where the Respondent Counsel on trial chose to absent himself inspite of evidence on record, that he was summoned seven times. After failing to appear the seventh time, the LPDC set down his disciplinary proceedings for hearing at the end of which he was struck-off the roll of lawyers. His subsequent appeal to have the proceedings set aside based on denial of fair hearing was dismissal off-hand as untenable as he had been given all opportunities to defend himself but chose to voluntarily waive his constitutional right. This approach which is justified on the peculiar facts of the case contrast sharply with dozens of other disciplinary matters wherein, the Respondent lawyers have been on trial for several years without the complainant or any witnesses being ever present at the hearing of those matters yet the LPDC bluntly refuses to strike out these matters in some extreme cases, where the Counsel on trial fails to make an appearance even where there is evidence that the said lawyer has diligently attended the disciplinary proceedings the LPDC sat to take evidence from the complainant and witnesses who have hitherto consistently absented themselves and thereupon proceeded to strike off the erring lawyer from the roll of lawyers. Certainly this kind of double standards in the disciplining of lawyers cannot but engender a crisis of confidence amongst a cross section of lawyers in the ability of disciplinary tribunals to do justice between complainants and lawyers without fear and favour.
Yet another issue, which also acts to further erode confidence in the impartial discipline of lawyers is the fact that while the trial of lawyers for professional misconduct is given all the necessary publicity in several National Dailies but in the few instances where the lawyer on trial survives the hangman's noosed the "born again lawyer's resurrection from the dead" hardly get a mention. The decisions of the LPDC in LPDC V EDU 15 and LPDC V. Aladejobi graphically illustrate this distinction, in the both cases the legal practitioners were struck off in the roll of legal practitioners at the Supreme Court and both striking off received national publicity. But where in the latter case the practitioner concerned was subsequently restated such reinstatement hardly received any publicity with the result that a few colleagues and judges unaware of the reinstatement of the luckier Counsel have had cause to challenge his appearance in court as a lawyer. Yet another reason why the confidence of lawyers in the impartiality of disciplinary cases against lawyers has waned considerably.
Now that this problem has been identified what is to be done to regain the confidence of lawyers in disciplinary proceedings which are essential to maintaining the dignity and integrity that is usually associated with the profession?
RECOMMENDATIONS:
While recognising the importance of maintaining the highest degree of integrity and professionalism at the Bar by ensuring that erring lawyers are promptly and strictly sanctioned, there is a corresponding need to retain the confidence of a cross section of lawyers in the impartiality of disciplinary proceedings against lawyers of all ages and standing at the Bar to this end the following suggestions are recommended.
(1) Lawyers cited for unethical and infamous conduct must be promptly investigated and promptly brought before the disciplinary panel.
(2) The standard of fairness must be same for all categories of lawyers, Senior or Junior, SAN or non-SAN. - Not different or double standards depending on the standing of the lawyer involved. Such can only be breed resentment.
(3) The same rule of fairness should also be maintained in the balance between the complainant and the Respondent, just like the LPDC is entitled to proceed where the Respondent consistently absents himself or herself, so also is the LPDC to strike out or dismiss as the case may be where the Complainant and witnesses consistently absent themselves. Anything else negates fair hearing!
(4) Only learned men and women and Jurists of the highest moral integrity and standing should sit in judgment over their colleagues or prosecute them for wrong doing. The physician must first heal himself before attending to others.
(5) At every stage the disciplinary proceedings must .remain transparent, and this in particular regard to publicity. Just as the citation of a practitioner before the LPDC deserves public notice and attention, so does his striking-off, suspension, admonition, discharge and reinstatement.
In regaining the confidence of lawyers in disciplinary proceedings, the LPDC and others involved in the discipline of lawyers will do well to take to heart the words of Kutigi JSC (as he then was) in Okike V. LPDC (No. 2) I think bodies or committees like the respondent (LPDC) should never be allowed leisurely and without due process to terminate peoples lives or peoples means of livelihood without strict adherence to the rules of natural justice and the rule of law. {LPDC added for emphasis}
Yes, one may even add the observation of his lordship that "the respondent, it appears to me, seemed to be more interested in getting the name of the appellant removed from the list of Legal Practitioners before satisfying itself that the appellant had misconducted himself. It this general impression that most modern day disciplinary proceedings are conducted in a manner consistent with his lordship's above observation that has fuelled the growing loss of confidence in disciplinary proceedings by legal practitioners in Nigeria
The earlier there is a paradigm shift the better for all.
The theme of this paper "Why have we lost confidence in the process of disciplining lawyers in Nigeria? attempts to provide answers for this moral dilemma.
The Nigerian legal profession with its roots in the English Legal Profession is regarded as a learned and noble profession fit only for persons from the educated elite of great learning and high moral character. Nothing less is good enough for the Bar. To that extent the Bar has over the ages sought to ensure that legal practitioners are guided by the highest professional standards in the practice of the profession. The 2007 Rules provide that "A Lawyer shall uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct and shall not engage in any conduct which is unbecoming of a legal practitioner". So if this be the lofty objective for enforcing discipline at the Bar how come many lawyers have lost confidence in the system?
A number of reasons have been given for the lukewarm attitude of lawyers to the discipline of their colleagues, this reasons include, manifest bias by the Disciplinary authorities, the presence of Morally Compromised adjudicators on the Panels, Double standards in the treatment of erring senior and junior lawyers, improper composition of
panels, absence of due process in the conduct of the affairs of the panel, undue haste to strike out erring lawyers for the flimsiest of reasons where on the other hand lawyers who get a reprieve either do not get an apology or adequate publicity for their escape from the sledgehammer. These reasons are by no means exhaustive of the lack of enthusiasm with which lawyers treat the disciplining of their colleagues. Nonetheless, we shall examine in greater details some of the reasons alluded to above.
Biased umpires
Recently at the commencement of one of the sittings of the Appeals Tribunal of the Disciplinary Committee, the Chairman of the Committee was quoted to have made the opening remark that the Panel in recent times has been inundated with a deluge of complaints of unethical and sharp practices against lawyers particularly in the area of Lawyer/Client relationship in the area of money and the determination of the panel to deal decisively with these complaints by ridding the profession of Bad eggs. Thankfully, very seasoned Senior Advocate of Nigeria, Chief G.O.K. Ajayi SAN in attendance on behalf of a client on the occasion was recorded to have expressed his displeasure at the punitive agenda of the panel as declared by the Chairman. Chief Ajayi SAN was quoted famously to have said "It does not matter even if there are 10,000 petitions against Legal practitioners, the fact remains that the Respondents are presumed innocent until allegations are proved. Your committee should therefore not give an impression that you are being influenced by the increasing number of petitions. It is not your business to be bothered about the number you are to do justice"
However, this admonition by the highly revered legal icon hardly seems to have had any sobering effect on the Legal Practitioners Appeal Tribunal Chairman who has consistently repeated the determination of his panel to show deviant lawyers the way out of the profession. Thus, every lawyer standing trial before the disciplinary committee attends every sitting with trepidation that his fate is sealed irrespective of probable innocence or valid defences to charges of unethical and unprofessional conduct. Certainly, there can be no confidence in such.
Disciplinary Proceedings where the practitioners on trial are presumed guilty contrary to constitutional presumption of innocence under Section 36 (5) of the 1999 Constitution, all because of the pressure to prove to the doubting public that something is being done to dial with unethical conduct at the Bar. Yet the same profession or at least an arm of it is expected to dispense justice without fear or favour to all manner of men, but ironically is not expected to extend the same fundamental guarantees to colleagues standing trial for disciplinary proceedings many of whom have been cited unfairly by a recalcitrant and belligerent client(s).. This prevalent persecution mentality has the potential of completely eroding the confidence which lawyers have in the ability of Disciplinary tribunal to try every case dispassionately. No amount of pressure should displace the constitutional duty or\disciplinary panels to be fair to each and every complainant and respondent lawyer. As stated in the Supreme Court case of Ndu V. State. The court (by extension the Panel) has a constitution duty to be fair to all sides to a case/ be it Plaintiff or Defendant, Prosecution or Accused are entitled to a fair hearing which does not contemplate a standard if justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes and ambidextrous standard of justice in which the court must be fair to both sides of the conflict".
Let every disciplinary proceeding be conducted in an atmosphere of fairness and objectivity devoid of bias or prejudice in favour or against any party.
Closely related 'to the last consideration is the presence on many of the Disciplinary panels of persons be they judicial officers or practitioner's who are disqualified by reason of one factor or another from sitting on a particular panel(s) or any panel for that matter. One will think that lawyers learned in the principles of bias and prejudice will do all in their power to ensure that persons with any disqualifying properties do not sit in judgment over others as laid down in a long time of cases. In the celebrated case of LPDC V. Fawehinmi6 the fact that the same office of the Attorney General of the Federation that laid the complaint of unprofessional misconduct was the same person to preside over the disciplinary proceedings was enough to nullify the proceedings. In another celebrated case of Denlove V. MDPDT the presence of lawyer to the complainant on the disciplinary tribunal that tried a Medical Doctor was enough to vitiate the said disciplinary proceedings while in yet another celebrated case Yesufu V. University of Maiduguri the presence of the Vice-Chancellor of the University of Maiduguri who was the Chief Complainant against the students facing disciplinary proceedings as Chairman of the said disciplinary panel completely nullified such proceedings. However on the present state of the law as decided in the recent Supreme Court case of Ndukwe V. L.P.D.C.. it appears that the presence on a tribunal of a disqualified person may not necessarily vitiate the said disciplinary proceedings. This is" yet another reason for worry and lack of confidence by practitioners in the impartiality and fairness of modern day disciplinary proceedings. The point may however be made that the distinguishing facts in the Ndukwe's case is that the erring member on the panel Mr. N. Nwanodi SAN did not take part in the proceedings neither did he sign the decision of the panel, thus his mere presence was held to be insufficient to affect the substance of the panel's decision. But the pertinent question is, could he not have used his presence on the panel to influence the decision of the panel, if he had an interest in the matter? This pattern of decision is certainly worrisome and capable of overturning the well established principle against membership of disciplinary panels by members suffering one legal incapacity or the other. Another reason why lawyers no longer have no confidence in disciplinary proceedings in Nigeria. This attitude of playing down the presence of disqualified members on disciplinary panels is already playing out in some of the ongoing proceedings such as the Disciplinary proceedings between the Legal Practitioners Disciplinary proceedings and Mr. Adesina Ogunlana 9a where one of the members of the disciplinary panel recently lodged a complaint against the same Respondent over another issue. Yet the said member a Senior Advocate of Nigeria and former General Secretary of the Bar saw nothing amiss in remaining a member of the disciplinary panel even while he still has a ' pending complaint against the said Respondent in another matter contrary to the elementary principle of law that a man should not be a judge in his own cause - Nemo judex in causa sua.
Related to the immediate foregoing is the role of prosecutors who are no better or even worse than the lawyers facing disciplinary proceedings. Given the seriousness of disciplinary proceedings which in appropriate cases lead to the erring lawyer being struck off the list of legal practitioners.
See Section 11 of the Legal Practitioners Act 2004 and the case of Okike V. LPDC (No. 2)
It is expected that lawyers saddled with the onerous responsibility of bringing deviant colleagues to book must be lawyers of the highest moral and professional integrity. Sadly, this is not always so as only recently one of the leading LPDC prosecutors Mr. Dele Oye was cited for his involvement in the ongoing Banking Industry scandal.
Earlier, although uncelebrated, one of the Counsel who had deliberately acted contrary to his client's instructions not to compromise a suit in a manner highly suggestive of fraud in the Supreme Court decision in Vulcan Gases V. G.I.V. had nevertheless sat with others on the Disciplinary Panel to determine the fate of other less fortunate colleagues with some legal practitioners inevitably struck out. A classic illustration of the pot calling the kettle black. Little wonder that Nigerian lawyers have lost confidence in the disciplining of lawyers, when those who have a log in their eye dare to point out the speck in their neighbours eye.
Yet another sore point amongst lawyers is the perceived double standard in the, treatment of professional misconduct involving very senior lawyers particularly Senior Advocates of Nigeria SAN and young lawyers. While the disciplinary panels are very quick to wield the big stick in respect of misconduct by junior Counsel and non - SAN: lawyers have been suspended for defrauding clients as little as N28,000.OO while there have been instances of Senior Advocates alleged to have converted client's money being allowed adequate time to make a refund. And indeed in the case of the more certain allegations of unprofessional communications between some Senior Advocates of Nigeria and certain members of the disbanded Osun State Election Tribunal nothing has been heard about the case ever since, not even whether the allegations are true or not, yet had some lesser mortals been involved, heads would have literally rolled by now. It is this type of double standard that continue to account for the dwindling confidence of Nigerian lawyers in disciplinary proceedings.
Also in the same vein is the different approaches to the prosecution of disciplinary matters while the prosecution of some disciplinary proceedings is promptly undertaken resulting in the striking out, suspension or admonition of the Counsel concerned such that where the LPDC is keen on prosecution the defence who delays does so at his own peril. This is what occurred in the celebrated case of Okike V. LPDC where the Respondent Counsel on trial chose to absent himself inspite of evidence on record, that he was summoned seven times. After failing to appear the seventh time, the LPDC set down his disciplinary proceedings for hearing at the end of which he was struck-off the roll of lawyers. His subsequent appeal to have the proceedings set aside based on denial of fair hearing was dismissal off-hand as untenable as he had been given all opportunities to defend himself but chose to voluntarily waive his constitutional right. This approach which is justified on the peculiar facts of the case contrast sharply with dozens of other disciplinary matters wherein, the Respondent lawyers have been on trial for several years without the complainant or any witnesses being ever present at the hearing of those matters yet the LPDC bluntly refuses to strike out these matters in some extreme cases, where the Counsel on trial fails to make an appearance even where there is evidence that the said lawyer has diligently attended the disciplinary proceedings the LPDC sat to take evidence from the complainant and witnesses who have hitherto consistently absented themselves and thereupon proceeded to strike off the erring lawyer from the roll of lawyers. Certainly this kind of double standards in the disciplining of lawyers cannot but engender a crisis of confidence amongst a cross section of lawyers in the ability of disciplinary tribunals to do justice between complainants and lawyers without fear and favour.
Yet another issue, which also acts to further erode confidence in the impartial discipline of lawyers is the fact that while the trial of lawyers for professional misconduct is given all the necessary publicity in several National Dailies but in the few instances where the lawyer on trial survives the hangman's noosed the "born again lawyer's resurrection from the dead" hardly get a mention. The decisions of the LPDC in LPDC V EDU 15 and LPDC V. Aladejobi graphically illustrate this distinction, in the both cases the legal practitioners were struck off in the roll of legal practitioners at the Supreme Court and both striking off received national publicity. But where in the latter case the practitioner concerned was subsequently restated such reinstatement hardly received any publicity with the result that a few colleagues and judges unaware of the reinstatement of the luckier Counsel have had cause to challenge his appearance in court as a lawyer. Yet another reason why the confidence of lawyers in the impartiality of disciplinary cases against lawyers has waned considerably.
Now that this problem has been identified what is to be done to regain the confidence of lawyers in disciplinary proceedings which are essential to maintaining the dignity and integrity that is usually associated with the profession?
RECOMMENDATIONS:
While recognising the importance of maintaining the highest degree of integrity and professionalism at the Bar by ensuring that erring lawyers are promptly and strictly sanctioned, there is a corresponding need to retain the confidence of a cross section of lawyers in the impartiality of disciplinary proceedings against lawyers of all ages and standing at the Bar to this end the following suggestions are recommended.
(1) Lawyers cited for unethical and infamous conduct must be promptly investigated and promptly brought before the disciplinary panel.
(2) The standard of fairness must be same for all categories of lawyers, Senior or Junior, SAN or non-SAN. - Not different or double standards depending on the standing of the lawyer involved. Such can only be breed resentment.
(3) The same rule of fairness should also be maintained in the balance between the complainant and the Respondent, just like the LPDC is entitled to proceed where the Respondent consistently absents himself or herself, so also is the LPDC to strike out or dismiss as the case may be where the Complainant and witnesses consistently absent themselves. Anything else negates fair hearing!
(4) Only learned men and women and Jurists of the highest moral integrity and standing should sit in judgment over their colleagues or prosecute them for wrong doing. The physician must first heal himself before attending to others.
(5) At every stage the disciplinary proceedings must .remain transparent, and this in particular regard to publicity. Just as the citation of a practitioner before the LPDC deserves public notice and attention, so does his striking-off, suspension, admonition, discharge and reinstatement.
In regaining the confidence of lawyers in disciplinary proceedings, the LPDC and others involved in the discipline of lawyers will do well to take to heart the words of Kutigi JSC (as he then was) in Okike V. LPDC (No. 2) I think bodies or committees like the respondent (LPDC) should never be allowed leisurely and without due process to terminate peoples lives or peoples means of livelihood without strict adherence to the rules of natural justice and the rule of law. {LPDC added for emphasis}
Yes, one may even add the observation of his lordship that "the respondent, it appears to me, seemed to be more interested in getting the name of the appellant removed from the list of Legal Practitioners before satisfying itself that the appellant had misconducted himself. It this general impression that most modern day disciplinary proceedings are conducted in a manner consistent with his lordship's above observation that has fuelled the growing loss of confidence in disciplinary proceedings by legal practitioners in Nigeria
The earlier there is a paradigm shift the better for all.
Thursday, November 26, 2009
JUSTICE WITHOUT LIGHT? By Ademola Adewale
The Lagos State Judicial is unarguably the nation's busiest judiciary with over 75% of the nation's litigation handled by the state's court. The cause List of most of the State's Court is notoriously long with the average court in the state particularly at the High Court level having a consistent average of 50-60 cases per week. But tike human beings and Institutions, the Court's do not exist in isolation or in vaccuo as we lawyer are apt to say. Thus the Court must co-exist with other supporting infrastructure, facilities and trained human resource; well (not necessarily fancifully) designed court rooms, durable desks, tables, chairs or benches, functional microphones and in this day and age recording gadgets and equipments, well ventilated court rooms either by way of modern air-conditioning and use of split units or simple old fashioned cross-ventilation. To these must be added efficient and dutiful court registrars clerks and Judicial Assistants without these compliments of staff, facilities and infrastructure even the most erudite and upright of judges is no use. No judge no matter how zealous of justice can work in a dark, poorly lit or unlit court room, sit in a very hot or poorly ventilated court, preside over proceedings in a rickety chair and Bench that might give way at any moment. Nor might his lordship arrange files, call each case and at the same time conduct proceedings. Efficient support staff and functional Infrastructure is simply sine qua non for the effective administration of justice in any part of the world, Nigeria and Lagos State in particular included.
In recognition of the above reality the State Government in recent times has taken steps to enhance the administration of justice in the state; improved emolument for judges, magistrates-and other judicial officers in the state, juicy welfare package and conditions for all categories of judicial officers (ironically in spite of repeated demand and agitations this largesse is yet to flow in the direction of non-judicial workers who attend to over 80% of the administrative duties of the state's judiciary and without whom the court systems will simply collapse) including the provision of the state of the art cars, stationeries and equipments amongst other things.
Yet in spite of the state's best efforts, the administration of justice in the state is being hampered by certain factors some of which are self-induced while others are beyond the control of the relevant authorities.
In respect of the state's commendable effort to construct new court buildings it is unfortunate that the 2 High Court buildings constructed within the last 5 years have been a source of problem to the administration of justice in the state, the furniture and finishing touches to the court are manifestly substandard, poorly constructed table, desks and chairs, low quality electrical fittings, badly designed docks, witness boxes and judges seats and benches. In many of the Court rooms, most of the chairs meant for lawyers have broken down with lawyers now left to either perch indecently and dangerously to conduct their matters in court; the lighting system is poor with many of the court rooms being dark and badly lit at most times during proceedings, the design of the court rooms even though meant to conform with modern day court rooms in developed societies are environmental non-compliant considering the present state of affairs in terms of electricity generation which is at an all time low. In practically all the New court rooms proceedings literally comes to an end once there is power failure, many proceedings have been aborted during the course of arguments in an urgent application, rigorous cross-examinations have been stalled mid-way by sudden power outages even judgments have been halted abruptly by sudden power failure.
I witnessed first hand, the last phenomenon when midway into a judgment in a 15 year old case that had passed through a couple of judges, electricity suddenly failed before the court of Justice O.A. Adefope-Okojie, thankfully in less than 15 minutes power was restored. And the court resumed sitting to deliver the judgment. Imagine what would have happened had his lordship been impatient to resume sitting after 15 minutes, the delivery of the judgment in the 15 year old case would have been further adjourned with no guarantees that the situation would have been any better on the adjourned date; and even then the court would have had to commence the delivery of the judgment ab initio. Still talking about electricity, it is not uncommon particularly in the era of the immediate past Chief Judge of Lagos State Justice Ade Alabi that whole Divisions of the High Court are unable to seat because not only has public power expectedly failed, but the Chief Judge failed to make provisions for fuel to run the generators. The result, hundreds of cases at various stages are inevitably adjourned further congesting the state's heavy laden cause list with negative consequences on justice delivery in the state.
Happily, under the highly focused and progressive leadership of new Chief Judge, The Hon Justice Inumidun Akande all that is in the past.
The design of the new court rooms already described above is also a source of concern, while it can be said the design of the new court rooms, is obviously modem and up to date but for all fanciful outlook, the court rooms are not environmentally friendly.
In most of the new court rooms, once there is power failure, the court rooms become pitch dark and the proceedings are immediately aborted, many times the judges have to practically grope their way out of the court rooms to their Chambers without even a decent opportunity to sign out the aborted proceedings. In a society where violent crimes are on the increase even in court rooms what stops a witness taking advantage of the confusion to physically attack the judge or alter the hurriedly abandoned judge's note/record of proceedings? Anyway several have questioned why the main contractor to the project a firm under the watch of a Senior Advocate of Nigeria did not take the Nigerian environment into consideration before constructing court rooms that are neither functional nor assist the cause of justice.
Many wonder whether old fashioned court rooms, available in other less developed states will not serve the cause of justice better than fancifully designed court rooms that become functionally useless the minute there is a power outage, pitch dark and oven hot and the judicial process, becomes stalled. What is more disturbing for many stakeholders is that even after two major variations to ensure that the furnitures and finishing's are improved on there is no noticeable change in many of the court rooms with the court room of Justice S.B. Candide-Johnson where more than 90% of the Bar's seats have broken down irretrievably, a classic illustration. Some have tried to deflect criticisms of the main contractor Stablini Visiononi by arguing that the shoddy furniture and finishing's were done by sub-contractors but in a community of lawyers can the main contractor escape liability based on vicarious liability. Even more critical beyond legal arguments and finance is the 'issue of posterity, how will posterity judge a frontline constructing firm headed by a SAN in a building court rooms? Is excellence so difficult to achieve? After all, even in an atmosphere of mediocrity some-organisations have continued to achieve excellence in the nation, Cappa a D'Alberto in the area of building construction and Julius Berger for Road Construction, so why not Stabilini Visioni for Court room construction when it has a SAN for a Chairman? And where is the place of legacy in all of these?
In the area of staff support for judicial officers, the point must be made that there can be no effective administration of justice, where the increased salaries and conditions of service that judges and magistrates enjoy do not extend to non-judicial staff. With the coming on board of a new Chief Judge who appears to enjoy the support and goodwill of all categories of judicial workers high and low, this is certainly the best time to visit the recurring issue of salaries and conditions of service judicial workers particularly the junior ones. His Lordship should as a matter of urgency take this vexed issue before the state helmsman who coincidentally is not only a lawyer but SAN so that this matter be promptly addressed. To the judicial staff union JUSUN Lagos Chapter should be added the advice that, they must seek their "salvation" within the presently constitutional framework and not allow themselves be led astray by their National Union. Nigeria is presently under a civilian Democracy where things are done in accordance with the 1999 constitution unlike during the military era where things were done in a unitary/uniform manner where the Federal Government could dictate to the State judiciary.
This is not sp now; even if their National body were to agree with the Federal Government and the National Judicial Council on salaries and working conditions such agreements are not binding on any state including Lagos under the principle of Federalism. Neither is the usual rationalisation that "Lagos is rich and can pay" a basis for believing that Lagos State will honour any agreement reached with the Federal authorities.
JUSUN (Lagos) should take its fortune in its hands by negotiating directly and realistically with the Lagos State authorities and not follow blindly the National bandwagon that has produced no results in spite of several strikes in the last 5 years. Talking practically, isn't it time JUSUN (Lagos) asked itself why Federal Judicial Staff and union have not been party but intact sabotaged all agitations by JUSUN National over salaries and conditions in the last few years? A word is enough for the wise.
Finally, and more relevant to this discourse, the provision of constant electricity during office hours for all courts in Lagos State, inspite of the national electricity debacle is most critical for the effective administration of justice particularly at the High Court level in Lagos State.
Whole judicial divisions should not be rendered unproductive for days, urgent proceedings crudely terminated because there is no diesel to power generators, neither should hundreds of cases be adjourned en bloc for electricity related reasons,
The courts remain the last hope of the common man, and Lagos as the Centre of Excellence must extend that undisputed reality to the judiciary despite all odds by ensuring that no matter what electricity is the very last reason why court proceedings should be aborted or adjourned. I am confident that given his direct stake and interest in matters of the judiciary, the guarantee of constant electricity in our courts will be one of the several milestones achieved during the administration of Gov. Babatunde Fashola SAN.
Eko o ni baje o. Judiciary o ni daru o!!!
In recognition of the above reality the State Government in recent times has taken steps to enhance the administration of justice in the state; improved emolument for judges, magistrates-and other judicial officers in the state, juicy welfare package and conditions for all categories of judicial officers (ironically in spite of repeated demand and agitations this largesse is yet to flow in the direction of non-judicial workers who attend to over 80% of the administrative duties of the state's judiciary and without whom the court systems will simply collapse) including the provision of the state of the art cars, stationeries and equipments amongst other things.
Yet in spite of the state's best efforts, the administration of justice in the state is being hampered by certain factors some of which are self-induced while others are beyond the control of the relevant authorities.
In respect of the state's commendable effort to construct new court buildings it is unfortunate that the 2 High Court buildings constructed within the last 5 years have been a source of problem to the administration of justice in the state, the furniture and finishing touches to the court are manifestly substandard, poorly constructed table, desks and chairs, low quality electrical fittings, badly designed docks, witness boxes and judges seats and benches. In many of the Court rooms, most of the chairs meant for lawyers have broken down with lawyers now left to either perch indecently and dangerously to conduct their matters in court; the lighting system is poor with many of the court rooms being dark and badly lit at most times during proceedings, the design of the court rooms even though meant to conform with modern day court rooms in developed societies are environmental non-compliant considering the present state of affairs in terms of electricity generation which is at an all time low. In practically all the New court rooms proceedings literally comes to an end once there is power failure, many proceedings have been aborted during the course of arguments in an urgent application, rigorous cross-examinations have been stalled mid-way by sudden power outages even judgments have been halted abruptly by sudden power failure.
I witnessed first hand, the last phenomenon when midway into a judgment in a 15 year old case that had passed through a couple of judges, electricity suddenly failed before the court of Justice O.A. Adefope-Okojie, thankfully in less than 15 minutes power was restored. And the court resumed sitting to deliver the judgment. Imagine what would have happened had his lordship been impatient to resume sitting after 15 minutes, the delivery of the judgment in the 15 year old case would have been further adjourned with no guarantees that the situation would have been any better on the adjourned date; and even then the court would have had to commence the delivery of the judgment ab initio. Still talking about electricity, it is not uncommon particularly in the era of the immediate past Chief Judge of Lagos State Justice Ade Alabi that whole Divisions of the High Court are unable to seat because not only has public power expectedly failed, but the Chief Judge failed to make provisions for fuel to run the generators. The result, hundreds of cases at various stages are inevitably adjourned further congesting the state's heavy laden cause list with negative consequences on justice delivery in the state.
Happily, under the highly focused and progressive leadership of new Chief Judge, The Hon Justice Inumidun Akande all that is in the past.
The design of the new court rooms already described above is also a source of concern, while it can be said the design of the new court rooms, is obviously modem and up to date but for all fanciful outlook, the court rooms are not environmentally friendly.
In most of the new court rooms, once there is power failure, the court rooms become pitch dark and the proceedings are immediately aborted, many times the judges have to practically grope their way out of the court rooms to their Chambers without even a decent opportunity to sign out the aborted proceedings. In a society where violent crimes are on the increase even in court rooms what stops a witness taking advantage of the confusion to physically attack the judge or alter the hurriedly abandoned judge's note/record of proceedings? Anyway several have questioned why the main contractor to the project a firm under the watch of a Senior Advocate of Nigeria did not take the Nigerian environment into consideration before constructing court rooms that are neither functional nor assist the cause of justice.
Many wonder whether old fashioned court rooms, available in other less developed states will not serve the cause of justice better than fancifully designed court rooms that become functionally useless the minute there is a power outage, pitch dark and oven hot and the judicial process, becomes stalled. What is more disturbing for many stakeholders is that even after two major variations to ensure that the furnitures and finishing's are improved on there is no noticeable change in many of the court rooms with the court room of Justice S.B. Candide-Johnson where more than 90% of the Bar's seats have broken down irretrievably, a classic illustration. Some have tried to deflect criticisms of the main contractor Stablini Visiononi by arguing that the shoddy furniture and finishing's were done by sub-contractors but in a community of lawyers can the main contractor escape liability based on vicarious liability. Even more critical beyond legal arguments and finance is the 'issue of posterity, how will posterity judge a frontline constructing firm headed by a SAN in a building court rooms? Is excellence so difficult to achieve? After all, even in an atmosphere of mediocrity some-organisations have continued to achieve excellence in the nation, Cappa a D'Alberto in the area of building construction and Julius Berger for Road Construction, so why not Stabilini Visioni for Court room construction when it has a SAN for a Chairman? And where is the place of legacy in all of these?
In the area of staff support for judicial officers, the point must be made that there can be no effective administration of justice, where the increased salaries and conditions of service that judges and magistrates enjoy do not extend to non-judicial staff. With the coming on board of a new Chief Judge who appears to enjoy the support and goodwill of all categories of judicial workers high and low, this is certainly the best time to visit the recurring issue of salaries and conditions of service judicial workers particularly the junior ones. His Lordship should as a matter of urgency take this vexed issue before the state helmsman who coincidentally is not only a lawyer but SAN so that this matter be promptly addressed. To the judicial staff union JUSUN Lagos Chapter should be added the advice that, they must seek their "salvation" within the presently constitutional framework and not allow themselves be led astray by their National Union. Nigeria is presently under a civilian Democracy where things are done in accordance with the 1999 constitution unlike during the military era where things were done in a unitary/uniform manner where the Federal Government could dictate to the State judiciary.
This is not sp now; even if their National body were to agree with the Federal Government and the National Judicial Council on salaries and working conditions such agreements are not binding on any state including Lagos under the principle of Federalism. Neither is the usual rationalisation that "Lagos is rich and can pay" a basis for believing that Lagos State will honour any agreement reached with the Federal authorities.
JUSUN (Lagos) should take its fortune in its hands by negotiating directly and realistically with the Lagos State authorities and not follow blindly the National bandwagon that has produced no results in spite of several strikes in the last 5 years. Talking practically, isn't it time JUSUN (Lagos) asked itself why Federal Judicial Staff and union have not been party but intact sabotaged all agitations by JUSUN National over salaries and conditions in the last few years? A word is enough for the wise.
Finally, and more relevant to this discourse, the provision of constant electricity during office hours for all courts in Lagos State, inspite of the national electricity debacle is most critical for the effective administration of justice particularly at the High Court level in Lagos State.
Whole judicial divisions should not be rendered unproductive for days, urgent proceedings crudely terminated because there is no diesel to power generators, neither should hundreds of cases be adjourned en bloc for electricity related reasons,
The courts remain the last hope of the common man, and Lagos as the Centre of Excellence must extend that undisputed reality to the judiciary despite all odds by ensuring that no matter what electricity is the very last reason why court proceedings should be aborted or adjourned. I am confident that given his direct stake and interest in matters of the judiciary, the guarantee of constant electricity in our courts will be one of the several milestones achieved during the administration of Gov. Babatunde Fashola SAN.
Eko o ni baje o. Judiciary o ni daru o!!!
NO TO ISLAMIC BANKING IN NIGERIA. By Ademola Adewale
The Central Bank of Nigeria's Governor Mallam Sanusi Lamido Sanusi is undoubtedly influential and so are his opinion particularly on fiscal and economic issues but even then in a democratic Society like ours his views must be thoroughly examined and vigorously examined before being adopted as policy statements. It is in this regard that Mallam Sanusi’s recent statement on the solution to the ungoing crisis in the nation's banking industry and the global economic melt-down has to be viewed.
Mallam Sanusi is quoted to have said that Islamic banking with its component of Non-interest banking will "create an enabling for attracting multi-billion dollars global Islamic finance industry to Nigeria and to enable Nigerians benefit from Sharia Complainant banking services and products". The same report said that a draft policy framework towards the establishment of the Islamic Financial industry in the Country was issued in March 2009 and is currently being reviewed for eventual release to the industry as a final document -- THE GUARDIAN. Monday August 31st 2009.
Though this statement was made at a Ramadan symposium organised by the Movement for Islamic Culture and Awareness (MICA) and not at a formal economic forum, coming from the helmsman of the nation's Apex Bank, they deserve no less serious attention and examination.
It is certainly tempting and even legitimate to explore alternative models of banking in the face of the current economic crisis both locally and internationally, that is of course if the present models have inherently failed or to attempt a revision and reform of the existing banking and financial practices, in that regard. The Non-interest component of the Islamic banking which finds equivalent in Zionist Judaism and old Testament Christianity appears very attractive. But it will be simplistic to assume that Islamic banking and products is all about not charging Usury thankfully Mallam Sanusi was candid to tell the whole world that the Islamic model of Banking being sought for Nigeria wit! include the full component of sharia compliant products which will inturn open up the nation's economy to multi-dollar finance from Islamic Financial Institutions.
There the concerns arise; the Sharia even for many of us uninitiated in its tenets comes with several components likely to arouse much tension and inevitable crisis in a multi radical, multi-religious nation like Nigeria; it comes with its own legal system how does that fit in with the present multi-religious legal system in Nigeria, its social Orders and Laws' How will the Church and other faiths fare, if they have to queue up to access Islamic finance to build Churches, how will the hospitality Industry like hotels, Casinos, Consumption and Value Added Tax on Alcohol, Liquor fare, what of Cinemas, Beauty Shows and non-Islamic promotions and adverts, Movies etc. Will all these have access to multi - dollar Islamic loans and financial products, even in the non-religious economic spheres like the Oil Industry, Manufacturing Banking, trading, communication and Telecommunication and ICT, will non-Muslim businessman and businesses have ready access to finances from Islamic banks and Islamic financial products and even then without stringent conditions and will the competition with businesses wholly owned by Muslims be even handed and fair?
Why these concerns cannot be readily swept aside with aware of the hand is because religion has been a sore-point in the nation's recent history. In the last three decades from the Maitatsine Riots in Kano in 1980 all the way to the latest Boko Haram crisis in Borno and other parts of Northern Nigeria, and in all of these; religion even if it is the false practice of it has been a major catalyst. And thus when Mallam Sanusi is quoted as saying that the Islamic banking being sought to be introduced is coming with Sharia Compliant products, Nigerians of non-Islamic faiths who have experienced first hand what the misuse of the Sharia entails are bound to be worried about the prospects of Islamic banking rooted in sharia compliant products.
Even the allusion to what the nation stand to gain by way of access to multi-dollar financing from Islamic banking institutions is not altogether convincing first because many of the institutions have a long history of directing their finances towards an expansionist policy of spreading Islam in Nigeria with the building of Mosques, Islamic institutions and Missions while the more belligerent institutions have been fingered globally in money laundering and the funding of international terrorism.
Thus for many discerning would be clients the offer of cheap interest - free money, may not be that attractive.
These are certainly critical times for the nation's economy particularly the banking sector and to that extent Mallam Sanusi deserves maximum support in his patriotic desire to instil sanity into the banking Industry. However that support base will become increasingly eroded when critics can legitimately attach less than altruistic reasons for his banking reforms. For instance in the face of his sack of the 5 MD's not a few commentators alleged Northernisation of the banking Industry. Those charges had hardly died down when Mallam Sanusi has now raised the idea of Islamic banking. The planned initiative is capable of being branded part of the Islamisation of the Nigerian economy and eventually nation moreso as many of those capable of offering alternative view points are in detention, standing trial or on the run.
Finally, Mallam Sanusi Lamido Sanusi is entitled to initiate whatsoever reforms he believes will best serve the nation's economy but he must be very careful in promoting efforts which at the end of the day are prone to being divisive and controversial rather than beneficial.
Yes, the idea of Interest free banking is worthy of being explored in Nigeria but certainly not its religious based complements in a multi - religious society like Nigeria. With all due respect Mr. Sanusi, No to Islamic banking or any religious banking, if there be any such, in Nigeria."
Mallam Sanusi is quoted to have said that Islamic banking with its component of Non-interest banking will "create an enabling for attracting multi-billion dollars global Islamic finance industry to Nigeria and to enable Nigerians benefit from Sharia Complainant banking services and products". The same report said that a draft policy framework towards the establishment of the Islamic Financial industry in the Country was issued in March 2009 and is currently being reviewed for eventual release to the industry as a final document -- THE GUARDIAN. Monday August 31st 2009.
Though this statement was made at a Ramadan symposium organised by the Movement for Islamic Culture and Awareness (MICA) and not at a formal economic forum, coming from the helmsman of the nation's Apex Bank, they deserve no less serious attention and examination.
It is certainly tempting and even legitimate to explore alternative models of banking in the face of the current economic crisis both locally and internationally, that is of course if the present models have inherently failed or to attempt a revision and reform of the existing banking and financial practices, in that regard. The Non-interest component of the Islamic banking which finds equivalent in Zionist Judaism and old Testament Christianity appears very attractive. But it will be simplistic to assume that Islamic banking and products is all about not charging Usury thankfully Mallam Sanusi was candid to tell the whole world that the Islamic model of Banking being sought for Nigeria wit! include the full component of sharia compliant products which will inturn open up the nation's economy to multi-dollar finance from Islamic Financial Institutions.
There the concerns arise; the Sharia even for many of us uninitiated in its tenets comes with several components likely to arouse much tension and inevitable crisis in a multi radical, multi-religious nation like Nigeria; it comes with its own legal system how does that fit in with the present multi-religious legal system in Nigeria, its social Orders and Laws' How will the Church and other faiths fare, if they have to queue up to access Islamic finance to build Churches, how will the hospitality Industry like hotels, Casinos, Consumption and Value Added Tax on Alcohol, Liquor fare, what of Cinemas, Beauty Shows and non-Islamic promotions and adverts, Movies etc. Will all these have access to multi - dollar Islamic loans and financial products, even in the non-religious economic spheres like the Oil Industry, Manufacturing Banking, trading, communication and Telecommunication and ICT, will non-Muslim businessman and businesses have ready access to finances from Islamic banks and Islamic financial products and even then without stringent conditions and will the competition with businesses wholly owned by Muslims be even handed and fair?
Why these concerns cannot be readily swept aside with aware of the hand is because religion has been a sore-point in the nation's recent history. In the last three decades from the Maitatsine Riots in Kano in 1980 all the way to the latest Boko Haram crisis in Borno and other parts of Northern Nigeria, and in all of these; religion even if it is the false practice of it has been a major catalyst. And thus when Mallam Sanusi is quoted as saying that the Islamic banking being sought to be introduced is coming with Sharia Compliant products, Nigerians of non-Islamic faiths who have experienced first hand what the misuse of the Sharia entails are bound to be worried about the prospects of Islamic banking rooted in sharia compliant products.
Even the allusion to what the nation stand to gain by way of access to multi-dollar financing from Islamic banking institutions is not altogether convincing first because many of the institutions have a long history of directing their finances towards an expansionist policy of spreading Islam in Nigeria with the building of Mosques, Islamic institutions and Missions while the more belligerent institutions have been fingered globally in money laundering and the funding of international terrorism.
Thus for many discerning would be clients the offer of cheap interest - free money, may not be that attractive.
These are certainly critical times for the nation's economy particularly the banking sector and to that extent Mallam Sanusi deserves maximum support in his patriotic desire to instil sanity into the banking Industry. However that support base will become increasingly eroded when critics can legitimately attach less than altruistic reasons for his banking reforms. For instance in the face of his sack of the 5 MD's not a few commentators alleged Northernisation of the banking Industry. Those charges had hardly died down when Mallam Sanusi has now raised the idea of Islamic banking. The planned initiative is capable of being branded part of the Islamisation of the Nigerian economy and eventually nation moreso as many of those capable of offering alternative view points are in detention, standing trial or on the run.
Finally, Mallam Sanusi Lamido Sanusi is entitled to initiate whatsoever reforms he believes will best serve the nation's economy but he must be very careful in promoting efforts which at the end of the day are prone to being divisive and controversial rather than beneficial.
Yes, the idea of Interest free banking is worthy of being explored in Nigeria but certainly not its religious based complements in a multi - religious society like Nigeria. With all due respect Mr. Sanusi, No to Islamic banking or any religious banking, if there be any such, in Nigeria."
Wednesday, November 25, 2009
EXAMINING THE BANKING TSUNAMI IN THE LIGHT OF THE LAW By: Ademola A. Adewale
The recent earth-shaking decision of the Central Bank of Nigeria Governor Mr. Sanusi Lamido Sanusi purportedly acting under the Banking and other Financial Institutions Act BOFIA and under relevant Laws to remove the Managing Directors of 5 Banks and other Executive Directors of some of the nations 26 Banks that survived the consolidation exercise namely FinBank Plc, AfriBank Plc, Oceanic Bank Plc, Union Bank Plc and Intercontinental Plc continues to generate ripples and intense debate throughout the length and breadth of the Federal Republic of Nigeria.
It is infact the hottest issue in the news in the nation at the moment. On Friday the 14th August 2009, the Governor of Nigeria's Central Bank acting under Sections 33 & 35 of the Banking and Other Financial Institutions Act BOFIA announced the removal of the following Managing Directors of the aforesaid banks, namely Mr. Okey Nwosu of FinBank Plc, Mr. Sebastian Adigwe of Afribank Pic, Mr. Barth Ebong of Union Bank Plc, Mrs Cecilia Ibru of Oceanic Bank Plc and Mr. Erastus Akingbola of Intercontinental Bank Pfc. Also removed alongside the former .Chief Executive Officers CEO were ail Executive Directors of the said banks. The sacked CEO's were simultaneously replaced with Mrs. Suzanme Iroche of FinBank Plc, Mr. Nebolisa Arah of AfriBank Plc, Mr. John Aboh of Oceanic Bank Plc, Mr. Maymud Alabi of Intercontinental Bank Plc and Mrs. Funke Osibodu of Union Bank Plc.
The Apex Bank also injected N420 billion Naira into the affected banks to prevent them from collapsing and having a disastrous effect on the nation's economy. The C.B.N. Governor gave the reasons for the drastic action as being the need to prevent the nation's banking industry where the 5 affected banks were major players accounting for 40% of the nation's total loan portfolio from a complete collapse. Mr. Lamido Sanusi in his riot-act of a speech painstakingly set out the steps that had hitherto been taken to stave off the Banks from coming under the sledge hammer but all of which could not avail the embattled Banks and their CEO's. As an aside from my modest knowledge of Economics I find the CBN Governor's position quite convincing contrary to the rash comments from sectors which have made ail manner of wild allegations against the C.B.N's helmsman ranging from the pursuit of an ethnic agenda, to undue haste and improper procedure, denial of fair hearing, grand standing even an attempt to rubbish the contributions of his immediate predecessor Prof Charles Soludo. Perhaps these critics need to re-read Mallam Sanusi's speech again.
However, without prejudice to one's opinion on the radical actions of Lamido Sanusi, a number of Legal and Quasi - Legal issues have arisen-for objective analysis, short of an indepth discussion of the merits and demerits of the several litigations that have now been initiated by the dramatis personse in this very topical economic and financial drama.
Yes, things have certainly fallen apart in the nation's economy and Nigerians are no longer at ease.
The first legal issue that calls for examination on this topic, is the legal validity or otherwise of Mallam Sanusi's action. In the express words of the C.B.N. Governor "Therefore, in exercise of my powers as contained in Sections 33 and 35 of the Banks and other Financial Institutions Act 1991, as amended, and after securing the consent of the Board of directors of the CBN. I hereby remove the Managing Directors (MDs) and the Executive Directors (EDS) of the following banks from office with effect from Friday. August 14. 2009.
1. Afribank Plc
2. Intercontinental Bank Plc
3. Union Bank of Nigeria Plc
4. Oceanic International Plc
5. FinBank Plc "
What do sections 33 and 35 of the Banking and other Financial Institutions Act as Amended BOFIA say:- "Section 33 - Special examination
(i) The Governor shall have power to order a special examination or investigation of the books and affairs of a bank where he is satisfied that -
(a) It is in the public interest so to do: or
(b) The bank has been carrying on its business in a manner detrimental to the interest of its depositors and creditors or
(c) The bank has "insufficient" assets to cover its liabilities to the public or
(d) The bank has been contravening the provisions of this Act or
(e) An application is made thereby
(ii) A director or shareholder of the bank or
(iii) A depositor or creditor of the bank" While Section 35 reads "Failing bank
(a) Where a bank informs the Bank that (a) it is unlikely to become unable to meet its obligations under this Act or
(b) It is about to suspend payment to any extent: or
(c) It is unsolvent; or
(d) Where, after an examination under Section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matter referred to in Section 33(i) of this Act. the Governor may by order in writing exercise any one or more of the powers specified in subsection (2) of this section.
(2) The Governor may by order in writing under subsection (i) of this Section
(a) __________
(b) __________
(c) remove for reasons to be recorded in writing with effect from such date as may be set out in the order, any manager or officer of the bank. notwithstanding anything in any written law or any limitations contained in the memorandum and articles of association of the bank" [Emphasis provided]
In the light of the above provisions particularly the portions emphasized, can the powers of the C.B.N Governor to take the steps he has taken including the sack of
M.D's of the 5 Failing or Distressed Bank be disputed?
The obvious answer is NO. The answer is even more obvious in view of the Statements of the CBN Governor that "Due to these circumstances. I instructed the Director of Banking Supervision of the CBN to carry out a special Examination of the following banks:
1. Afribank Plc
2. Finbank
3. Intercontinental bank Plc
4. Oceanic bank Plc and
5. Union Bank Plc
The result of the Special Examination revealed "that the Expended Discount Window EDW of the five banks amounted N127.85 billion by the end of July 2009 representing 89.81 per cent of the total industry exposure to the CBN on its discount window", "while the five banks account for 39.93 percent of loans", and nearly 50% of the debt portofolio of Nigerian Banks.
Yet, some do gooders have alleged that the C.B.N. Governor has no powers to remove the sacked CEO's and that the procedures employed was wrong, that the CEO's were denied a fair hearing and that the decision was hasty.
At the expense of reputation the charge of lack of powers to remove the CEO's will not stick in view of the clear wordings of the statute prescribed above. It is a firmly established principle of law that a statute must be given a literal rule of interpretation, the fact that the application of the law has an harsh effect notwithstanding. See the recent case of Grosvenor Casinos V. hallaoui (2009) 4 - 55S.C. 200 where the extant Nigerian Law on the Registration of Foreign Judgments was applied literally not withstanding that it had the effect of allowing a Nigerian to perpetrate fraud on an English businesswoman by refusing to be subject to English courts.
The second objection of the denial of fair hearing, however being a constitutional point requires a more detailed examination.
Section 36 (1) of the 1999 constitution provides that in the determination of his civil rights and obligation a person will be entitled to fair hearing. The pertinent question is whether the special examination conducted by the C.B.N. into the affairs of the 5 distress banks amounts to the determination of the civil rights and obligations of the 5 sacked CEO's or not as to warrant to the determination of his civil rights and obligations or is a mere administrative investigation?.
Where what is involved is the determination of the sacked CEO's civil rights and obligations, then the C.B.N. would be obliged to act judicially or quasi - judicially. In such an instance an hearing which will afford the sacked C.E.O.'s an opportunity of a fair trial or fair hearing is imperative. Thus the C.B.N. Governor would have had to set up a pane! where:-
(i) the sacked CEO's must be given the opportunity to be present all through the proceedings and hear the evidence against them.
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against them or their interest.
(iii) to have read before them all the documents tendered on evidence at the hearing
(iv) to have disclosed to them the nature of all relevant material evidence including documentary and real evidence, prejudicial to them save in recognized exceptions;
(v) to know the case they have to meet at the hearing and have adequate opportunity to prepare for their defence and
(vi) to give evidence by themselves, call witnesses, if they like, and make oral submission either personally or through a Counsel of their choice.
All this requirements are necessary for the determination of the civil rights and obligations.
Kotoye V. CBN (1989) 1 NLWR (Pt 98) 419. Eperohum V. University of Lagos (1986) 4 NWLR fpt 34) 162. Baba V NCAIC (1991) 5 NWLR (PT 192) 88, Garba V. University of Maiduguri (1986) 1 NWLR (pt 18) 50 LPDC V Fawehinmi (1985) 2 NWLR (Pt 7) 300
However where an administrative panel or body is merely to investigate and make exploratory findings, then there is no determination of any civil right or obligations thus the issue of fair hearing will not arise
Baba V. NCATC (1990) 5 NWLR (pt 192) 308, R V Director of Audit (WR) (1961) NSCC 292, Adedejl V. Police Service Commission fl967) NSCC 59, Hart V. Military Governor River State (1976) NSCC 622
With such administrative tribunals the rules for judicial or quasi-judicial tribunals as
to fair hearing will not apply?
The question then is, where do we place sack of the 5 CEO's?. It is submitted that by a community reading of sections 33 and 35 of the BOHA, the sacking of the CEO's by the CBN Governor based on the result of the investigation of the books and affairs of the concerned bank is a Ministerial Act. as opposed to a judicial or quasi Judicial act, as he merely exercised a discretion on the report of the special examination which showed that the 5 banks were in distress and had breached various banking regulations which breaches had grave consequences on not only the banking sector but the entire economy. So all the talk about fair hearing will not apply.
Baba V NCAIC (supra)
Amaka V. Lt Governor. Western Region (1956) SCNLR
Owovemi V. Adekova (2003) 12 SC (pt 1) 122.
Thus with respect all the talk about the 5 CEO's being given a fair hearing before being sacked will not apply. A related issue is the criticism in some quarters that the C.B.N's Governor action was hasty. Undoubtedly the C.B.N. Governor has a discretion among other things to remove the 5 CEO's under Section 35 (1) and (2) of the BOFIA "where, after an examination under Section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matters referred to in Section 33 (i) of this Act, the Governor may by order in writing exercise any one or more of the powers specified in subsection (2) of this Section"
(2) The Governor may by order in writing under subsection (1) of this section
(c) remove for reasons to be recorded in writing with effect from such date as may be set out in the Order, any manager or officer of the bank".
If as alluded to by the CBN Governor in his speech of the 14th August 2008, the 5 Banks under the sacked CEO's accounted for 39.93 per cent of non-performing loans in the banking-sector and 89.31 percent of the Expended Discount Window. EDW of the exposure of the entire banking Industry, perhaps the critics would only have been satisfied as to the timeliness of Mallam Sanusi's action only if he had allowed the entire banking system to collapse after all the banks had been audited presumably by December for the CBN Governor's action to be Justified.
As for the charge of sectionalism, regionalism or Northernization, no intellectual discourse or platform worth its salt will dignify such hogwash with a reply. It is submitted that the only objective counter argument to the C.B.N, Governor's speech. is if critics come up with facts and figures to debunks those given by Mallam Sanusi. IN the absence of that these self-serving critics will be better off maintaining a dignified silence.
In typical Nigerian fashion the sack of the 5 CEO's has triggered off a chain of re-actions which reactions have developed a life of their own outside of the initial action by the CBN Governor. In the aftermath of the CBN Governor's action, he had remarked that "However we will also ensure that officers of banks and debtors who contribute to bank failures are brought to book to the full extent of the law and that all proceeds of infraction are confiscated where legally feasible". This statement had been interpreted by a section of the Media as tantamount to saying the 5 CEO's had committed Criminal offences in giving out huge non-performing loans and will be prosecuted. The embattled Economic and Financial Crimes Commission EFCC in dire need of public support and approval in the face of its badly dented image courtesy of its lack-lustre prosecution of allegedly corrupt public officers seized upon this golden opportunity the way a drowning man will cling on to a life line and a gasp of oxygen. Encouraged by a sensation seeking section of the Media and a tough talking Central Bank, the 5 CEO's were declared wanted and their actions criminal, the List of Debtors of the 5 Banks was published and both Directors and Debtors of Banks were invited and in many causes "hauled" into EFCC custody for investigation. Yes, the EFCC that had seemed fated for irrelevance, suddenly found its voice and with the voice the bravado to criminilize otherwise simple banking transactions that had not been proven to have metamorphosized into criminal and fraudulent transactions. Not done the commission has sternly warned the Judiciary that "while it is within the right of every Nigerian to seek legal redress against perceived wrong, we would crave the indulgence of the respected members of the Nigerian Bench not to consider any frivolous interlocutory application from bank debtors at this particular point in time" Not even the military at the height of its power ever issued a directive at the Judiciary as to how conduct its affairs!! And this from a person who is a lawyer by training. Thankfully, the Nigerian Bar Association has promptly condemned this act of intimidation and blackmail by the EFCC. Perhaps the EFCC Chairperson needs to be reminded that justice is not a one way traffic Justice is as much for the Defendant as it is for the Prosecution. "The court has a constitutional duty to be fair to all sides to a case, be it Plaintiff or Defendant, Prosecution or Accused all are entitled to a fair hearing which does not contemplate a standard of justice which is biased in favour of the party and to the prejudice of the other. Rather it imposes and ambidextrous standard of justice in which the court must be fair to both sides of the conflict"
Ndu V. State fl990) 7 NWLR (Pt 164) 550
Amanchukwu V. F.R.N. (209) 2 - 3 s (Pt 1) 93.
This is a settled position at law that has constitutional backing under section 36(i) of the 1999 Constitution and not even the allusion by the.EFCC to the fact that "some of us may not know but these are very critical times for the banking sector and our beloved nation" Can dislodge this imperative. Thus the appeal by the EFCC to sentiments so that the fundamental rights of the accused can be suspended in the fight against corruption cannot be allowed or condoned. Let the commission and every one Fighting any manner of social vice learn to follow the due process or else anarchy will prevail!.
The point must be made that the fact that a bank's customer is owing the said bank N1 trillion Naira or $1 billion Dollars does not necessarily make the debtor a criminal. Criminality In respect of bank loans depend on a number of variables what are the terms of the contract, is the money due, is the money to be paid in instalments, is their any moratorium on payment etc. Some of the indices of criminality in relation to loan transactions include: the diversion of the loan to other purposes outside the agreed purpose, the use of false or fake documents as security, the use of non-existent collateral as security for loan, the unwillingness to pay even where there has the ability or resources to repay. Thus the fact that some of the debtors of the failing banks have large sums of money standing against their names is no evidence that they are fraudulent, it is possible that by their loan agreements the debts are not due and there is also the issue of some of them disputing the amount of their indebtedness. But the EFCC basking in the euphoria of the ongoing Trial by Media (which incidentally was one of the themes of the recently concluded Annual Bar Conference 2009 which session organised by the Section on Public interest and Development Law SP1DEL Mrs. Farida Waziri personally attended) has criminalised all manner of credit facility and gone after all the big debtors of the 5 Banks and ironically realised huge sums of money worth over N66 billion Naira.
By this successful recovery, all eyes are closed to the fact that these sums of money were recovered by intimidation and arm-twisting: this is where the danger lies to the acceptance of due process and rule of law in Nigeria.
Due to the failure of leadership over decades Nigerians have become disillusioned with all public institutions including the judiciary which they see as only protecting the rich, slow and in effective in giving them justice, so all over the land there is constant recourse to extra-legal means of getting justice: politicians and even traders are sworn on fetish oaths to secure allegiance and even loyalty to contract, police resort to extra judicial killings to avoid long and expensive pro-sections which may not secure convictions, criminal suspects of all types from the pickpocket, petty thief to the armed robber, ritual killer and kidnapper are subjected to the instant jungle justice of lynchings. All courtesy of the general discontent with the prevailing legal system. So when now the nation's major anti-graft agency has shown that the way to go in respect of simple banking loans is intimidation and arm-twisting, I shudder at what this portends for the nation at all levels!!
However, the bank debtors have only themselves to blame when they in the words of Richard Brinsley Sheridan show that "It is not in their interest to pay the principal nor their principle to pay the interest" or behave in a manner described by the American Oil Executive and Financier J.P. Getty "If you owe the bank $100 million. that is your problem, if you owe the bank $100 million that is the bank's problem
Yes, now that our debtor compatriots have by their huge debts created problems for the banks which problems the bank have been able to solve through the strong arm tactics of the EFCC. The only worry for many of us who are stakeholders in the nation's legal system is the long term effect of this solution on not only the nation's legal system but the observance of due process, rule of law and the respect for Constitutional means and methods. Our people are naturally impatient, now they have been told that you do not have to follow to get redress, and that Nigerians respond faster to the use of force or at least the threat of it. God help us all!!
A related development still on the part of the EFCC is the disobedience to court order. A number of detained CEO's have obtained court orders for their release on bail, but the EFC still basking in its new found powers has refused to release the persons concerned sighting its re-vitalized fight against corruption as alibi and defence. This yet another show of might that is likely to be emulated by the populace and where the courts in the case of ordinary citizens respond with their awesome powers to punish contempt. The citizens remark that they are being punished because they are not in position of authority. Did the EFCC not do so and got away with it? Once again the courts and the law will come wider unwarranted attack. No thanks to the executive lawlessness and rascality shown by the EFCC.
One other aspect of this saga is worthy of consideration is the role played by auditor and accountants in this unfortunate episode. Many of this banks in the last few years preceding this saga posted very impressive performances in their Statements of Accounts for which the Banks and their MD's were rewarded with many awards both locally and internationally. Yet a few months after the publication of these bumper results by the Auditors the Banks are in trouble. How come the Auditors did not detect these anomalies. It will be recalled that this is not the first time external auditors usually Chartered Accountants will be caught in the web of misleading financial reports. During the failed Bank Saga in the 1990's several Accountants and Accounting Firms were involved in the auditing of Financial reports which proved to be misleading but there is no single record of any punishment for erring auditors. Indeed, the standard defence for auditors and accountants was that the auditing and financial reports were based on documents and materials made available by the audited company. These Auditors simply played the ostrich, the public was told that auditors had no way of knowing that the presented documents were false, doctored or concocted, so we were made to believe that the work of auditors/accountants was simply Bookeeping, merely adding up figures.
Thus until the recent Cadbury scandal when one of the nations Chartered Accounting Firms was sanctioned by way of suspension from auditing accounts of public quoted companies, no Chartered Accountant has even been brought to book for unethical practices in respect of the production of financial reports. Similarly the leading orgainsation for Chartered Accountants Institute of Chartered Accountant of Nigeria 1CAN who make up over 95% of External Auditors in the nation's economy stood solidly behind its members deflecting any form of criticism. Now the issue of unethical and even criminal conduct by auditors has arisen once more, and this time perhaps bowing to public pressure 1CAN has now threatened to sanction erring members implicated in the ongoing banking crisis by subjecting to professional Disciplinary proceedings any member found guilty of criminal conduct in a court of law
This is a most welcome development and show the sensitivity of 1CAN to the mood of the nation.
The point must also be made that the sanctioning of Corporate executives and Financial professionals is neither a Nigerian initiative or a new phenomenon rather even in Europe and America the bastions of democracy, rule of law and free enterprise, the regulators do not play with the investments of the citizen or any activity capable of putting the economy at risk. The regulators therein are quick to read the "Riots Act" at defaulters and literally throw the book at any erring player no matter how highly placed, Chief Executives of the world's leading organisations in those countries have been known to be convicted and sentenced to long terms of imprisonment without parole: examples:- the Bank-of Credit and Commerce International BCCI crisis in the late 1980's, the Arthur Anderson problems at the turn of this Century and Millennium, the Enron problem in the U.S.A. the Simens scandal in Germany and Austria, and the Halliburton scam in the USA amongst others. In the handling of these issues the fact that these corporate financial scandals arose in the most democratic and law abiding of societies did not prevent the authorities thereat from wielding the big stick.
In the Enron scam, a former high ranking member of the U.S. Government under President George Bush Jr. Donald Rumsfield lost his job; while only recently a United States Congressman William Je fferson was convicted and sentenced to prison. Thus in that regard the CBN and other regulatory authorities will be following acceptable precedent even best global practices if all executives and others found guilty of offences after due prosecution are convicted and given the appropriate punishments.
But prosecution there must be, Not persecution or trial by media as seems to be -prevalent at the moment. Here the EFCC statutorily charged with the prosecution of the various bank executives including 5 sacked CEO's must strongly resist the temptation to play to the gallery or the anti - corruption agency will be the loser at the end of the day. Imagine, if after all the present Media blitz and attention on the embattled Bank Executives, many of them were to get off the hook, either because they have been charged to court for offences unknown to law, or because the required evidence or witnesses were not produced in court, the evidence produced is insufficient to ground a conviction, improper foundation laid for evidence to be admissible, public documents not certified as required by law on the flimsy excuse that being electronic or computer generated evidence no such certification is required. The public will not accept excuses neither will the appeal to sentiments that the courts are frustrating the fight against corruption be acceptable. The EFCC must anticipate all possible pitfalls and do the best possible to reduce them to the basest minimum. Thankfully very seasoned lawyers including SANS have been engaged to handle the prosecutions of cases, and the fiat of the Attorney-General is being sought to eliminate any "territorial wars" even though on the authority of Osahon V. Fed. Republic of Nigeria (2006) 2 S.C. (Pt. II) 1, this may not be necessary or might even be sought after prosecution has commenced. But there is no harm in making assurance doubly sure; in view of the Federal Attorney - General's Constitutional Supremacy and absolute discretion to scuttle any prosecution if he so desires, there is a lot more wisdom in not only obtaining the A.G's fiat but his complete support for these most important prosecutions. The EFCC's initiative is therefore most welcome, having been taken Ex-abundantia Cautela - The exercise of abundance of Caution. The EFCC must de-emphasize unnecessary publicity and be realistic in its expectations; it will be unduly ambitious to imagine that all the bank executives allegedly to have been involved in fraudulent transactions which led to the almost collapse of the embattled banks will be convicted; it should be satisfied if more than a handful are convicted and not blame the court for its failure but ready to accept defeat where it fails.
Overall, the Nigerian Banking Sector is in need of a thorough cleansing and Mallam Sanusi's initiative if pursued to its logical conclusion should have the desired result. Here is wishing the CBN Governor success in this patriotic endeavour.
The Apex Bank also injected N420 billion Naira into the affected banks to prevent them from collapsing and having a disastrous effect on the nation's economy. The C.B.N. Governor gave the reasons for the drastic action as being the need to prevent the nation's banking industry where the 5 affected banks were major players accounting for 40% of the nation's total loan portfolio from a complete collapse. Mr. Lamido Sanusi in his riot-act of a speech painstakingly set out the steps that had hitherto been taken to stave off the Banks from coming under the sledge hammer but all of which could not avail the embattled Banks and their CEO's. As an aside from my modest knowledge of Economics I find the CBN Governor's position quite convincing contrary to the rash comments from sectors which have made ail manner of wild allegations against the C.B.N's helmsman ranging from the pursuit of an ethnic agenda, to undue haste and improper procedure, denial of fair hearing, grand standing even an attempt to rubbish the contributions of his immediate predecessor Prof Charles Soludo. Perhaps these critics need to re-read Mallam Sanusi's speech again.
However, without prejudice to one's opinion on the radical actions of Lamido Sanusi, a number of Legal and Quasi - Legal issues have arisen-for objective analysis, short of an indepth discussion of the merits and demerits of the several litigations that have now been initiated by the dramatis personse in this very topical economic and financial drama.
Yes, things have certainly fallen apart in the nation's economy and Nigerians are no longer at ease.
The first legal issue that calls for examination on this topic, is the legal validity or otherwise of Mallam Sanusi's action. In the express words of the C.B.N. Governor "Therefore, in exercise of my powers as contained in Sections 33 and 35 of the Banks and other Financial Institutions Act 1991, as amended, and after securing the consent of the Board of directors of the CBN. I hereby remove the Managing Directors (MDs) and the Executive Directors (EDS) of the following banks from office with effect from Friday. August 14. 2009.
1. Afribank Plc
2. Intercontinental Bank Plc
3. Union Bank of Nigeria Plc
4. Oceanic International Plc
5. FinBank Plc "
What do sections 33 and 35 of the Banking and other Financial Institutions Act as Amended BOFIA say:- "Section 33 - Special examination
(i) The Governor shall have power to order a special examination or investigation of the books and affairs of a bank where he is satisfied that -
(a) It is in the public interest so to do: or
(b) The bank has been carrying on its business in a manner detrimental to the interest of its depositors and creditors or
(c) The bank has "insufficient" assets to cover its liabilities to the public or
(d) The bank has been contravening the provisions of this Act or
(e) An application is made thereby
(ii) A director or shareholder of the bank or
(iii) A depositor or creditor of the bank" While Section 35 reads "Failing bank
(a) Where a bank informs the Bank that (a) it is unlikely to become unable to meet its obligations under this Act or
(b) It is about to suspend payment to any extent: or
(c) It is unsolvent; or
(d) Where, after an examination under Section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matter referred to in Section 33(i) of this Act. the Governor may by order in writing exercise any one or more of the powers specified in subsection (2) of this section.
(2) The Governor may by order in writing under subsection (i) of this Section
(a) __________
(b) __________
(c) remove for reasons to be recorded in writing with effect from such date as may be set out in the order, any manager or officer of the bank. notwithstanding anything in any written law or any limitations contained in the memorandum and articles of association of the bank" [Emphasis provided]
In the light of the above provisions particularly the portions emphasized, can the powers of the C.B.N Governor to take the steps he has taken including the sack of
M.D's of the 5 Failing or Distressed Bank be disputed?
The obvious answer is NO. The answer is even more obvious in view of the Statements of the CBN Governor that "Due to these circumstances. I instructed the Director of Banking Supervision of the CBN to carry out a special Examination of the following banks:
1. Afribank Plc
2. Finbank
3. Intercontinental bank Plc
4. Oceanic bank Plc and
5. Union Bank Plc
The result of the Special Examination revealed "that the Expended Discount Window EDW of the five banks amounted N127.85 billion by the end of July 2009 representing 89.81 per cent of the total industry exposure to the CBN on its discount window", "while the five banks account for 39.93 percent of loans", and nearly 50% of the debt portofolio of Nigerian Banks.
Yet, some do gooders have alleged that the C.B.N. Governor has no powers to remove the sacked CEO's and that the procedures employed was wrong, that the CEO's were denied a fair hearing and that the decision was hasty.
At the expense of reputation the charge of lack of powers to remove the CEO's will not stick in view of the clear wordings of the statute prescribed above. It is a firmly established principle of law that a statute must be given a literal rule of interpretation, the fact that the application of the law has an harsh effect notwithstanding. See the recent case of Grosvenor Casinos V. hallaoui (2009) 4 - 55S.C. 200 where the extant Nigerian Law on the Registration of Foreign Judgments was applied literally not withstanding that it had the effect of allowing a Nigerian to perpetrate fraud on an English businesswoman by refusing to be subject to English courts.
The second objection of the denial of fair hearing, however being a constitutional point requires a more detailed examination.
Section 36 (1) of the 1999 constitution provides that in the determination of his civil rights and obligation a person will be entitled to fair hearing. The pertinent question is whether the special examination conducted by the C.B.N. into the affairs of the 5 distress banks amounts to the determination of the civil rights and obligations of the 5 sacked CEO's or not as to warrant to the determination of his civil rights and obligations or is a mere administrative investigation?.
Where what is involved is the determination of the sacked CEO's civil rights and obligations, then the C.B.N. would be obliged to act judicially or quasi - judicially. In such an instance an hearing which will afford the sacked C.E.O.'s an opportunity of a fair trial or fair hearing is imperative. Thus the C.B.N. Governor would have had to set up a pane! where:-
(i) the sacked CEO's must be given the opportunity to be present all through the proceedings and hear the evidence against them.
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against them or their interest.
(iii) to have read before them all the documents tendered on evidence at the hearing
(iv) to have disclosed to them the nature of all relevant material evidence including documentary and real evidence, prejudicial to them save in recognized exceptions;
(v) to know the case they have to meet at the hearing and have adequate opportunity to prepare for their defence and
(vi) to give evidence by themselves, call witnesses, if they like, and make oral submission either personally or through a Counsel of their choice.
All this requirements are necessary for the determination of the civil rights and obligations.
Kotoye V. CBN (1989) 1 NLWR (Pt 98) 419. Eperohum V. University of Lagos (1986) 4 NWLR fpt 34) 162. Baba V NCAIC (1991) 5 NWLR (PT 192) 88, Garba V. University of Maiduguri (1986) 1 NWLR (pt 18) 50 LPDC V Fawehinmi (1985) 2 NWLR (Pt 7) 300
However where an administrative panel or body is merely to investigate and make exploratory findings, then there is no determination of any civil right or obligations thus the issue of fair hearing will not arise
Baba V. NCATC (1990) 5 NWLR (pt 192) 308, R V Director of Audit (WR) (1961) NSCC 292, Adedejl V. Police Service Commission fl967) NSCC 59, Hart V. Military Governor River State (1976) NSCC 622
With such administrative tribunals the rules for judicial or quasi-judicial tribunals as
to fair hearing will not apply?
The question then is, where do we place sack of the 5 CEO's?. It is submitted that by a community reading of sections 33 and 35 of the BOHA, the sacking of the CEO's by the CBN Governor based on the result of the investigation of the books and affairs of the concerned bank is a Ministerial Act. as opposed to a judicial or quasi Judicial act, as he merely exercised a discretion on the report of the special examination which showed that the 5 banks were in distress and had breached various banking regulations which breaches had grave consequences on not only the banking sector but the entire economy. So all the talk about fair hearing will not apply.
Baba V NCAIC (supra)
Amaka V. Lt Governor. Western Region (1956) SCNLR
Owovemi V. Adekova (2003) 12 SC (pt 1) 122.
Thus with respect all the talk about the 5 CEO's being given a fair hearing before being sacked will not apply. A related issue is the criticism in some quarters that the C.B.N's Governor action was hasty. Undoubtedly the C.B.N. Governor has a discretion among other things to remove the 5 CEO's under Section 35 (1) and (2) of the BOFIA "where, after an examination under Section 33 of this Act or otherwise howsoever, the Bank is satisfied that the bank is in a grave situation as regards the matters referred to in Section 33 (i) of this Act, the Governor may by order in writing exercise any one or more of the powers specified in subsection (2) of this Section"
(2) The Governor may by order in writing under subsection (1) of this section
(c) remove for reasons to be recorded in writing with effect from such date as may be set out in the Order, any manager or officer of the bank".
If as alluded to by the CBN Governor in his speech of the 14th August 2008, the 5 Banks under the sacked CEO's accounted for 39.93 per cent of non-performing loans in the banking-sector and 89.31 percent of the Expended Discount Window. EDW of the exposure of the entire banking Industry, perhaps the critics would only have been satisfied as to the timeliness of Mallam Sanusi's action only if he had allowed the entire banking system to collapse after all the banks had been audited presumably by December for the CBN Governor's action to be Justified.
As for the charge of sectionalism, regionalism or Northernization, no intellectual discourse or platform worth its salt will dignify such hogwash with a reply. It is submitted that the only objective counter argument to the C.B.N, Governor's speech. is if critics come up with facts and figures to debunks those given by Mallam Sanusi. IN the absence of that these self-serving critics will be better off maintaining a dignified silence.
In typical Nigerian fashion the sack of the 5 CEO's has triggered off a chain of re-actions which reactions have developed a life of their own outside of the initial action by the CBN Governor. In the aftermath of the CBN Governor's action, he had remarked that "However we will also ensure that officers of banks and debtors who contribute to bank failures are brought to book to the full extent of the law and that all proceeds of infraction are confiscated where legally feasible". This statement had been interpreted by a section of the Media as tantamount to saying the 5 CEO's had committed Criminal offences in giving out huge non-performing loans and will be prosecuted. The embattled Economic and Financial Crimes Commission EFCC in dire need of public support and approval in the face of its badly dented image courtesy of its lack-lustre prosecution of allegedly corrupt public officers seized upon this golden opportunity the way a drowning man will cling on to a life line and a gasp of oxygen. Encouraged by a sensation seeking section of the Media and a tough talking Central Bank, the 5 CEO's were declared wanted and their actions criminal, the List of Debtors of the 5 Banks was published and both Directors and Debtors of Banks were invited and in many causes "hauled" into EFCC custody for investigation. Yes, the EFCC that had seemed fated for irrelevance, suddenly found its voice and with the voice the bravado to criminilize otherwise simple banking transactions that had not been proven to have metamorphosized into criminal and fraudulent transactions. Not done the commission has sternly warned the Judiciary that "while it is within the right of every Nigerian to seek legal redress against perceived wrong, we would crave the indulgence of the respected members of the Nigerian Bench not to consider any frivolous interlocutory application from bank debtors at this particular point in time" Not even the military at the height of its power ever issued a directive at the Judiciary as to how conduct its affairs!! And this from a person who is a lawyer by training. Thankfully, the Nigerian Bar Association has promptly condemned this act of intimidation and blackmail by the EFCC. Perhaps the EFCC Chairperson needs to be reminded that justice is not a one way traffic Justice is as much for the Defendant as it is for the Prosecution. "The court has a constitutional duty to be fair to all sides to a case, be it Plaintiff or Defendant, Prosecution or Accused all are entitled to a fair hearing which does not contemplate a standard of justice which is biased in favour of the party and to the prejudice of the other. Rather it imposes and ambidextrous standard of justice in which the court must be fair to both sides of the conflict"
Ndu V. State fl990) 7 NWLR (Pt 164) 550
Amanchukwu V. F.R.N. (209) 2 - 3 s (Pt 1) 93.
This is a settled position at law that has constitutional backing under section 36(i) of the 1999 Constitution and not even the allusion by the.EFCC to the fact that "some of us may not know but these are very critical times for the banking sector and our beloved nation" Can dislodge this imperative. Thus the appeal by the EFCC to sentiments so that the fundamental rights of the accused can be suspended in the fight against corruption cannot be allowed or condoned. Let the commission and every one Fighting any manner of social vice learn to follow the due process or else anarchy will prevail!.
The point must be made that the fact that a bank's customer is owing the said bank N1 trillion Naira or $1 billion Dollars does not necessarily make the debtor a criminal. Criminality In respect of bank loans depend on a number of variables what are the terms of the contract, is the money due, is the money to be paid in instalments, is their any moratorium on payment etc. Some of the indices of criminality in relation to loan transactions include: the diversion of the loan to other purposes outside the agreed purpose, the use of false or fake documents as security, the use of non-existent collateral as security for loan, the unwillingness to pay even where there has the ability or resources to repay. Thus the fact that some of the debtors of the failing banks have large sums of money standing against their names is no evidence that they are fraudulent, it is possible that by their loan agreements the debts are not due and there is also the issue of some of them disputing the amount of their indebtedness. But the EFCC basking in the euphoria of the ongoing Trial by Media (which incidentally was one of the themes of the recently concluded Annual Bar Conference 2009 which session organised by the Section on Public interest and Development Law SP1DEL Mrs. Farida Waziri personally attended) has criminalised all manner of credit facility and gone after all the big debtors of the 5 Banks and ironically realised huge sums of money worth over N66 billion Naira.
By this successful recovery, all eyes are closed to the fact that these sums of money were recovered by intimidation and arm-twisting: this is where the danger lies to the acceptance of due process and rule of law in Nigeria.
Due to the failure of leadership over decades Nigerians have become disillusioned with all public institutions including the judiciary which they see as only protecting the rich, slow and in effective in giving them justice, so all over the land there is constant recourse to extra-legal means of getting justice: politicians and even traders are sworn on fetish oaths to secure allegiance and even loyalty to contract, police resort to extra judicial killings to avoid long and expensive pro-sections which may not secure convictions, criminal suspects of all types from the pickpocket, petty thief to the armed robber, ritual killer and kidnapper are subjected to the instant jungle justice of lynchings. All courtesy of the general discontent with the prevailing legal system. So when now the nation's major anti-graft agency has shown that the way to go in respect of simple banking loans is intimidation and arm-twisting, I shudder at what this portends for the nation at all levels!!
However, the bank debtors have only themselves to blame when they in the words of Richard Brinsley Sheridan show that "It is not in their interest to pay the principal nor their principle to pay the interest" or behave in a manner described by the American Oil Executive and Financier J.P. Getty "If you owe the bank $100 million. that is your problem, if you owe the bank $100 million that is the bank's problem
Yes, now that our debtor compatriots have by their huge debts created problems for the banks which problems the bank have been able to solve through the strong arm tactics of the EFCC. The only worry for many of us who are stakeholders in the nation's legal system is the long term effect of this solution on not only the nation's legal system but the observance of due process, rule of law and the respect for Constitutional means and methods. Our people are naturally impatient, now they have been told that you do not have to follow to get redress, and that Nigerians respond faster to the use of force or at least the threat of it. God help us all!!
A related development still on the part of the EFCC is the disobedience to court order. A number of detained CEO's have obtained court orders for their release on bail, but the EFC still basking in its new found powers has refused to release the persons concerned sighting its re-vitalized fight against corruption as alibi and defence. This yet another show of might that is likely to be emulated by the populace and where the courts in the case of ordinary citizens respond with their awesome powers to punish contempt. The citizens remark that they are being punished because they are not in position of authority. Did the EFCC not do so and got away with it? Once again the courts and the law will come wider unwarranted attack. No thanks to the executive lawlessness and rascality shown by the EFCC.
One other aspect of this saga is worthy of consideration is the role played by auditor and accountants in this unfortunate episode. Many of this banks in the last few years preceding this saga posted very impressive performances in their Statements of Accounts for which the Banks and their MD's were rewarded with many awards both locally and internationally. Yet a few months after the publication of these bumper results by the Auditors the Banks are in trouble. How come the Auditors did not detect these anomalies. It will be recalled that this is not the first time external auditors usually Chartered Accountants will be caught in the web of misleading financial reports. During the failed Bank Saga in the 1990's several Accountants and Accounting Firms were involved in the auditing of Financial reports which proved to be misleading but there is no single record of any punishment for erring auditors. Indeed, the standard defence for auditors and accountants was that the auditing and financial reports were based on documents and materials made available by the audited company. These Auditors simply played the ostrich, the public was told that auditors had no way of knowing that the presented documents were false, doctored or concocted, so we were made to believe that the work of auditors/accountants was simply Bookeeping, merely adding up figures.
Thus until the recent Cadbury scandal when one of the nations Chartered Accounting Firms was sanctioned by way of suspension from auditing accounts of public quoted companies, no Chartered Accountant has even been brought to book for unethical practices in respect of the production of financial reports. Similarly the leading orgainsation for Chartered Accountants Institute of Chartered Accountant of Nigeria 1CAN who make up over 95% of External Auditors in the nation's economy stood solidly behind its members deflecting any form of criticism. Now the issue of unethical and even criminal conduct by auditors has arisen once more, and this time perhaps bowing to public pressure 1CAN has now threatened to sanction erring members implicated in the ongoing banking crisis by subjecting to professional Disciplinary proceedings any member found guilty of criminal conduct in a court of law
This is a most welcome development and show the sensitivity of 1CAN to the mood of the nation.
The point must also be made that the sanctioning of Corporate executives and Financial professionals is neither a Nigerian initiative or a new phenomenon rather even in Europe and America the bastions of democracy, rule of law and free enterprise, the regulators do not play with the investments of the citizen or any activity capable of putting the economy at risk. The regulators therein are quick to read the "Riots Act" at defaulters and literally throw the book at any erring player no matter how highly placed, Chief Executives of the world's leading organisations in those countries have been known to be convicted and sentenced to long terms of imprisonment without parole: examples:- the Bank-of Credit and Commerce International BCCI crisis in the late 1980's, the Arthur Anderson problems at the turn of this Century and Millennium, the Enron problem in the U.S.A. the Simens scandal in Germany and Austria, and the Halliburton scam in the USA amongst others. In the handling of these issues the fact that these corporate financial scandals arose in the most democratic and law abiding of societies did not prevent the authorities thereat from wielding the big stick.
In the Enron scam, a former high ranking member of the U.S. Government under President George Bush Jr. Donald Rumsfield lost his job; while only recently a United States Congressman William Je fferson was convicted and sentenced to prison. Thus in that regard the CBN and other regulatory authorities will be following acceptable precedent even best global practices if all executives and others found guilty of offences after due prosecution are convicted and given the appropriate punishments.
But prosecution there must be, Not persecution or trial by media as seems to be -prevalent at the moment. Here the EFCC statutorily charged with the prosecution of the various bank executives including 5 sacked CEO's must strongly resist the temptation to play to the gallery or the anti - corruption agency will be the loser at the end of the day. Imagine, if after all the present Media blitz and attention on the embattled Bank Executives, many of them were to get off the hook, either because they have been charged to court for offences unknown to law, or because the required evidence or witnesses were not produced in court, the evidence produced is insufficient to ground a conviction, improper foundation laid for evidence to be admissible, public documents not certified as required by law on the flimsy excuse that being electronic or computer generated evidence no such certification is required. The public will not accept excuses neither will the appeal to sentiments that the courts are frustrating the fight against corruption be acceptable. The EFCC must anticipate all possible pitfalls and do the best possible to reduce them to the basest minimum. Thankfully very seasoned lawyers including SANS have been engaged to handle the prosecutions of cases, and the fiat of the Attorney-General is being sought to eliminate any "territorial wars" even though on the authority of Osahon V. Fed. Republic of Nigeria (2006) 2 S.C. (Pt. II) 1, this may not be necessary or might even be sought after prosecution has commenced. But there is no harm in making assurance doubly sure; in view of the Federal Attorney - General's Constitutional Supremacy and absolute discretion to scuttle any prosecution if he so desires, there is a lot more wisdom in not only obtaining the A.G's fiat but his complete support for these most important prosecutions. The EFCC's initiative is therefore most welcome, having been taken Ex-abundantia Cautela - The exercise of abundance of Caution. The EFCC must de-emphasize unnecessary publicity and be realistic in its expectations; it will be unduly ambitious to imagine that all the bank executives allegedly to have been involved in fraudulent transactions which led to the almost collapse of the embattled banks will be convicted; it should be satisfied if more than a handful are convicted and not blame the court for its failure but ready to accept defeat where it fails.
Overall, the Nigerian Banking Sector is in need of a thorough cleansing and Mallam Sanusi's initiative if pursued to its logical conclusion should have the desired result. Here is wishing the CBN Governor success in this patriotic endeavour.
RIGHTS OF A SUSPECT/PERSON WHEN ACCUSED OF A CRIME
1. The presumption of innocence
Under section 36(5) of the 1999 Constitution every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Also, section 138(1) of the Evidence Act provides for proof beyond reasonable doubt in respect of any allegation of commission of an offence against the person accused of a crime. The rationale for these legal principles cannot be over-stressed when juxtaposed with the undeniable reality of the fallibility of our criminal justice system, borne out of snippets of shortcomings, prejudices and procedural irregularities associated with criminal justice administration, in Nigeria.
In view of the above constitutionally guaranteed right of the citizen, any person who is accused of an offence is entitled to be presumed innocent of the allegation until the contrary is proved. Therefore he should be treated not as an offender or criminal even before trial, but as a citizen whose rights are fully preserved and protected by law. Such rights are not by any stretch of conjecture or imagination, whittled down by the fact of his arrest or interrogation in connection with an offence. See the dictum of Kairibi Whyte JSC, (as he then was) in Adeyemi v. The State.
It is saddening to observe clear violations of this right by law enforcement agents who subject suspects and accused persons to unconscionable brutalities and victimization in the process of arrest and interrogations. Sometimes these agents deny the accused persons access to their fundamental rights, as guaranteed for them under the Constitution as innocent persons until proven guilty by a court of competent jurisdiction.
This illegal and highly prejudicial practice must be penalized by the court, to serve as deterrents to others. Culprits should be appropriately sanctioned, in accordance with the provisions of section 36(6) of the Constitution. This section makes provisions for the payment of compensation and public apology from the appropriate authority or person, to any person who is unlawfully arrested or detained by over zealous law enforcement agents.
2. Right of silence when accused of a crime
Section 35(2) of the 1999 Constitution states that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. In addition, section 35(11) of (he same Constitution provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. It is the fundamental right of every citizen who is arrested or detained in connection with an allegation of crime, to remain silent or not to answer any questions put to him until he obtains the services of a lawyer or any other person of his choice.
This right of silence, usually incorporated into the police charge sheet and statement forms, but hardly explained to suspects, transcends access to counsel or a person of his choice, to cover post-consultation periods. He is entitled, by law. to still remain silent and not answer questions posed to him by the police or other authorized persons, having no duty in law to prove his innocence in law.
The crux of this right is the necessity to protect a person from self- incrimination before a charge is formally preferred against him. It also gives fillip to the other kindred rights of presumption of innocence preserved under section 36(5) of the Constitution, which places the burden of proof of an offence on the prosecution beyond reasonable doubt and the failure of which the accused is entitled to an acquittal, either suo motu or on the application of his counsel pursuant to section 286oftheCPA.
Over time conscious efforts have been made by civilized societies to protect and preserve the inalienable rights of accused persons to presumption of innocence. One of such efforts was the development of a body of rules governing procedure for obtaining statements and interrogation of suspects under the common law criminal justice system. This body of rules was appropriately called "The Judges Rules."
The Judges Rules was adopted and affirmed by an American court, in the case of Miranda vs. Arizona The gravamen of the right otherwise known as "Miranda right," is that a suspect has a right not to be compelled to talk and any statement obtained from him during interrogation cannot be used against him in his trial unless there is proof that the suspect fully understood that:
(a) He had the right to remain silent.
(b) That anything said by him could be used against him in court.
(c) That he had a right of access to an attorney of his own choice, both at the police station and elsewhere.
An accused person in the process of interrogation by the police or other authorized agents must insist on consulting a legal practitioner before volunteering any statement. Once he does that should halt any further action by the police against him. The Judges Rules is a procedure well received and affirmed by our courts, as a guide to determining the propriety or otherwise of statements obtained from suspects during police interrogations.
In Oyegbemi v. The Attorney General of the Federation, an article titled, Armed Robbers Kill 2 Persons, published by the Daily Sketch Newspaper (now defunct) was considered false and offensive. The Editor was then arrested. During interrogations he refused to disclose his source of information and as a result he was charged with the offence of conspiracy to commit felony.
The court at the end of trial, in apparent deference to the Judges Rules, held that a person who is arrested or detained by the police as suspect in respect of an offence is entitled to remain silent when confronted with the offence and is not obliged to make any statement at all. He can remain silent or mute in exercise of his fundamental rights guaranteed to every citizen whether he is a journalist or not.
3. Right to make voluntary statement
An adjunct to the right of slience discussed above is the kindred right of the suspect to make statement as a matter of choice not by compulsion or under force of coercion or duress, when being confronted with allegation of commission of an offence. The Judges Rules have made ample provisions to guide the police in their interrogations and investigation of crimes, including, the legitimate ways and means of obtaining statements from suspects.
For any statement to be valid under these rules, it must be obtained under caution, with prior notification to the suspect of its implications as well as his right not to make the statement, if he so wished. It must also be made voluntarily by the suspect, and in the course of such a voluntary statement the suspect should not be asked questions or cross examined by the police, such as to extract unfavourable information from him except to clear any ambiguities in his statement, if any.
Of particular significance is Rule 8 of the Judges Rules, which provides that, when two or more persons are charged with the same offence and statements are' taken separately from them, the police should not read their statements to their co-accused persons, but each of such persons should be given a copy of such statements to read, without being prodded for any response, by the police.
In Saidu v. The State, the Supreme Court in apparent deference to the rules held that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement without which proof the statement is inadmissible as evidence against the maker.
Perhaps it is pertinent to note that the fact that a statement was not obtained in absolute compliance with the above rules does not automatically render the said statement inadmissible. It may still be admitted where the court is satisfied that it had in fact been voluntary and properly obtained. See R v. Jackson Akpan.
Under section 28 of the Evidence Act, Laws of the Federation, 1990;
"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature."
By virtue of section139(1)(a) of the same Evidence Act, the burden of proving that a confessional statement was duly obtained in compliance with requirements under section 28 rests on the prosecution and not on the accused person. However, whereas a person can rightfully confess to his own acts, knowledge or omissions, he cannot equally confess as to the acts of another which he had not seen and of which he can only have knowledge by hearsay. Failure of the prosecution to prove an essential element of the offence cannot be cured by an admission of the kind. See Surujpaul vs. The Queen where a conviction obtained based on the confessional statement of an accessory, which implicated the alleged principal offender, was quashed on appeal, on the ground that such plea of guilt by the accessory should not have been accepted as basis for convicting the principal party to the crime prior to establishing the guilt of the said principal offender.
In line with the usual requirements of valid statements to the police, for a confessional statement to be admissible it must not only be voluntary but it must also be free. A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. That situation hardly arises, since confessional statements are usually subjected to proper scrutiny, first by the police, and then by the before being accepted or rejected.
In Emeka v. The State, the Supreme Court held that a free and voluntary confession by a person, if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction, even though it is desirable to have outside the accused person's confession to the police some evidence, however slight, of the circumstances which make it more probable that the confession was true.
Where an accused person in the course of his trial challenges the admission of his confessional statement, on grounds of having been obtained from him not voluntarily but by duress or threat by the police at the time of interrogation, the court does not automatically disqualify the statement as being inadmissible. The Court may proceed to set up special enquiry to test the veracity of the accused person's claim, against the propriety of the mode of obtaining the piece of evidence vide facts and circumstances of the case before it.
This special trial is known in legal circles as, Trial within a Trial. In this trial, the sole issue for determination before the court is the voluntariness or otherwise of the disputed statement. The voluntariness of the evidence must be ascertained before trial in the main charge can resume. Section 139(1)(a) of the Evidence Act imposes the duty on the prosecution to prove voluntariness by credible and substantial evidence, and to contradict the accused person's allegation of having been forced to make the statement.
At the end of the special trial, it will be left to the court to decide whether the allegation of involuntariness of confession had been proved or not, and whatever decision it arrives at is taken as final.
It should be pointed out that the above procedure must be strictly adhered to by the courts. Any breach for deviation from it, will be fatal to the case of the prosecution, if made a ground of Appeal, in case of a conviction based on such disputed piece of evidence. The duty of the court where the accused person challenges the voluntariness of his confessional statement has been well spelt out, in the decision of the Supreme Court in Emeka v. The State thus:
"When an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty-of the court to test the confession by conducting a trial within g trial in order to determine whether in fact the statement was voluntarily made. Failure of the trial court to do so renders the statement inadmissible and all evidence admitted by virtue of the statement would be expunged." See also Obidiozor v. The State.
The onus of proof of voluntariness of confessional statement lies on the prosecution. He must also prove" beyond reasonable doubt that'' the confessional statement made by the accused person was free and voluntary. For the evidence of a confession to be admissible the trial court must be satisfied, on the basis of the totality of evidence led in the trial within trial, that the prosecution proved that the confessional statement was voluntary. See Emeka v. The State.
4. Right to be promptly informed of the offence against him
Generally, a person who is accused of an offence must be informed in the language he understands, the true grounds and reasons for his arrest. This proposition is in line with section 35(3) of the 1999 Constitution, which provides that; " Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in the language he understands) of the facts and grounds for his arrest."
It is obvious from this provision of the Constitution that any police officer or other authorized agent who effects an arrest of a person, whether with a warrant of arrest or not, must duly and promptly inform the person of the reason for his arrest. This information must be conveyed to him in the language he understands.
The purpose of this enactment is to provide the suspect with the earliest opportunity within which to respond properly and adequately to the allegation through counsel of his own choice. It will also protect his rights from wanton abuse and intimidation by overzealous and vindictive law enforcement agents, who take undue advantage of their position to humiliate and maltreat innocent citizens, either to settle private cores or at the behest and instigation of business associates or envious competitors.
A suspect or an accused person, who enjoys equal status by virtue of the presumption of innocence in his favour, like every other citizen, is entitled to know what charge or on suspicion of what crime he is being arrested and detained.
Where an accused person is not informed the grounds of his arrest and the police still goes ahead to detain him, the police officer concerned is liable for false imprisonment under the law. He would be bound to pay appropriate compensation to the victim, upon conviction by the court.
Viscount Simon in Christy vs. Leachinsky, had restated the guiding principles to ensure proper communication between the police and the suspect during an arrest as follows:
(a) "If a policeman arrests without warrant upon reasonable suspicion of felony or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(b) If the citizen is not so informed but is nevertheless seized, the policeman apart from certain exceptions is liable for false imprisonment.
(c) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained"
However, the above guidelines which are of persuasive authority, in our shores, are definitely not exhaustive, as each case will be viewed within the prisms of its own peculiar and special circumstances.
(5) Right to contact his lawyer, or any other person of his choice, before yielding to police arrest
Any person suspected or accused of committing a crime is entitled to per-interrogation rights, under the law, by virtue of section 35(2) of the Constitution. That section provides that "Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice."
The implication of the foregoing is that every suspect is guaranteed a pre-interrogation right to counsel and therefore the police and other interrogators are legally bound, not only to inform suspects of this right, at the time of his arrest, but also to fully avail him access to his counsel at every point of the interrogation. Unfortunately, most police interrogations are conducted in violation of this right, as the rules are usually observed more in breach than in compliance.
According to Niki Tobi JSC, "In practice, police and other law enforcement agents, detest and resist, consultations between suspect and counsel whether before, or during interrogations."
In most cases these police interrogators employ all sorts of intimidation, torture and undue influence to extract confessional statements from suspects, who are usually interrogated in the absence of their counsel.
This right which is a basic and fundamental constitutional entitlement of all citizens, remain the most crucial, as it is the fulcrum upon which other rights revolve. This underscored by its centrality as a gate way to the realistic exercise of all other rights of the citizen.
Under section 36(5) of the 1999 Constitution every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Also, section 138(1) of the Evidence Act provides for proof beyond reasonable doubt in respect of any allegation of commission of an offence against the person accused of a crime. The rationale for these legal principles cannot be over-stressed when juxtaposed with the undeniable reality of the fallibility of our criminal justice system, borne out of snippets of shortcomings, prejudices and procedural irregularities associated with criminal justice administration, in Nigeria.
In view of the above constitutionally guaranteed right of the citizen, any person who is accused of an offence is entitled to be presumed innocent of the allegation until the contrary is proved. Therefore he should be treated not as an offender or criminal even before trial, but as a citizen whose rights are fully preserved and protected by law. Such rights are not by any stretch of conjecture or imagination, whittled down by the fact of his arrest or interrogation in connection with an offence. See the dictum of Kairibi Whyte JSC, (as he then was) in Adeyemi v. The State.
It is saddening to observe clear violations of this right by law enforcement agents who subject suspects and accused persons to unconscionable brutalities and victimization in the process of arrest and interrogations. Sometimes these agents deny the accused persons access to their fundamental rights, as guaranteed for them under the Constitution as innocent persons until proven guilty by a court of competent jurisdiction.
This illegal and highly prejudicial practice must be penalized by the court, to serve as deterrents to others. Culprits should be appropriately sanctioned, in accordance with the provisions of section 36(6) of the Constitution. This section makes provisions for the payment of compensation and public apology from the appropriate authority or person, to any person who is unlawfully arrested or detained by over zealous law enforcement agents.
2. Right of silence when accused of a crime
Section 35(2) of the 1999 Constitution states that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. In addition, section 35(11) of (he same Constitution provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. It is the fundamental right of every citizen who is arrested or detained in connection with an allegation of crime, to remain silent or not to answer any questions put to him until he obtains the services of a lawyer or any other person of his choice.
This right of silence, usually incorporated into the police charge sheet and statement forms, but hardly explained to suspects, transcends access to counsel or a person of his choice, to cover post-consultation periods. He is entitled, by law. to still remain silent and not answer questions posed to him by the police or other authorized persons, having no duty in law to prove his innocence in law.
The crux of this right is the necessity to protect a person from self- incrimination before a charge is formally preferred against him. It also gives fillip to the other kindred rights of presumption of innocence preserved under section 36(5) of the Constitution, which places the burden of proof of an offence on the prosecution beyond reasonable doubt and the failure of which the accused is entitled to an acquittal, either suo motu or on the application of his counsel pursuant to section 286oftheCPA.
Over time conscious efforts have been made by civilized societies to protect and preserve the inalienable rights of accused persons to presumption of innocence. One of such efforts was the development of a body of rules governing procedure for obtaining statements and interrogation of suspects under the common law criminal justice system. This body of rules was appropriately called "The Judges Rules."
The Judges Rules was adopted and affirmed by an American court, in the case of Miranda vs. Arizona The gravamen of the right otherwise known as "Miranda right," is that a suspect has a right not to be compelled to talk and any statement obtained from him during interrogation cannot be used against him in his trial unless there is proof that the suspect fully understood that:
(a) He had the right to remain silent.
(b) That anything said by him could be used against him in court.
(c) That he had a right of access to an attorney of his own choice, both at the police station and elsewhere.
An accused person in the process of interrogation by the police or other authorized agents must insist on consulting a legal practitioner before volunteering any statement. Once he does that should halt any further action by the police against him. The Judges Rules is a procedure well received and affirmed by our courts, as a guide to determining the propriety or otherwise of statements obtained from suspects during police interrogations.
In Oyegbemi v. The Attorney General of the Federation, an article titled, Armed Robbers Kill 2 Persons, published by the Daily Sketch Newspaper (now defunct) was considered false and offensive. The Editor was then arrested. During interrogations he refused to disclose his source of information and as a result he was charged with the offence of conspiracy to commit felony.
The court at the end of trial, in apparent deference to the Judges Rules, held that a person who is arrested or detained by the police as suspect in respect of an offence is entitled to remain silent when confronted with the offence and is not obliged to make any statement at all. He can remain silent or mute in exercise of his fundamental rights guaranteed to every citizen whether he is a journalist or not.
3. Right to make voluntary statement
An adjunct to the right of slience discussed above is the kindred right of the suspect to make statement as a matter of choice not by compulsion or under force of coercion or duress, when being confronted with allegation of commission of an offence. The Judges Rules have made ample provisions to guide the police in their interrogations and investigation of crimes, including, the legitimate ways and means of obtaining statements from suspects.
For any statement to be valid under these rules, it must be obtained under caution, with prior notification to the suspect of its implications as well as his right not to make the statement, if he so wished. It must also be made voluntarily by the suspect, and in the course of such a voluntary statement the suspect should not be asked questions or cross examined by the police, such as to extract unfavourable information from him except to clear any ambiguities in his statement, if any.
Of particular significance is Rule 8 of the Judges Rules, which provides that, when two or more persons are charged with the same offence and statements are' taken separately from them, the police should not read their statements to their co-accused persons, but each of such persons should be given a copy of such statements to read, without being prodded for any response, by the police.
In Saidu v. The State, the Supreme Court in apparent deference to the rules held that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement without which proof the statement is inadmissible as evidence against the maker.
Perhaps it is pertinent to note that the fact that a statement was not obtained in absolute compliance with the above rules does not automatically render the said statement inadmissible. It may still be admitted where the court is satisfied that it had in fact been voluntary and properly obtained. See R v. Jackson Akpan.
Under section 28 of the Evidence Act, Laws of the Federation, 1990;
"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature."
By virtue of section139(1)(a) of the same Evidence Act, the burden of proving that a confessional statement was duly obtained in compliance with requirements under section 28 rests on the prosecution and not on the accused person. However, whereas a person can rightfully confess to his own acts, knowledge or omissions, he cannot equally confess as to the acts of another which he had not seen and of which he can only have knowledge by hearsay. Failure of the prosecution to prove an essential element of the offence cannot be cured by an admission of the kind. See Surujpaul vs. The Queen where a conviction obtained based on the confessional statement of an accessory, which implicated the alleged principal offender, was quashed on appeal, on the ground that such plea of guilt by the accessory should not have been accepted as basis for convicting the principal party to the crime prior to establishing the guilt of the said principal offender.
In line with the usual requirements of valid statements to the police, for a confessional statement to be admissible it must not only be voluntary but it must also be free. A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. That situation hardly arises, since confessional statements are usually subjected to proper scrutiny, first by the police, and then by the before being accepted or rejected.
In Emeka v. The State, the Supreme Court held that a free and voluntary confession by a person, if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction, even though it is desirable to have outside the accused person's confession to the police some evidence, however slight, of the circumstances which make it more probable that the confession was true.
Where an accused person in the course of his trial challenges the admission of his confessional statement, on grounds of having been obtained from him not voluntarily but by duress or threat by the police at the time of interrogation, the court does not automatically disqualify the statement as being inadmissible. The Court may proceed to set up special enquiry to test the veracity of the accused person's claim, against the propriety of the mode of obtaining the piece of evidence vide facts and circumstances of the case before it.
This special trial is known in legal circles as, Trial within a Trial. In this trial, the sole issue for determination before the court is the voluntariness or otherwise of the disputed statement. The voluntariness of the evidence must be ascertained before trial in the main charge can resume. Section 139(1)(a) of the Evidence Act imposes the duty on the prosecution to prove voluntariness by credible and substantial evidence, and to contradict the accused person's allegation of having been forced to make the statement.
At the end of the special trial, it will be left to the court to decide whether the allegation of involuntariness of confession had been proved or not, and whatever decision it arrives at is taken as final.
It should be pointed out that the above procedure must be strictly adhered to by the courts. Any breach for deviation from it, will be fatal to the case of the prosecution, if made a ground of Appeal, in case of a conviction based on such disputed piece of evidence. The duty of the court where the accused person challenges the voluntariness of his confessional statement has been well spelt out, in the decision of the Supreme Court in Emeka v. The State thus:
"When an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty-of the court to test the confession by conducting a trial within g trial in order to determine whether in fact the statement was voluntarily made. Failure of the trial court to do so renders the statement inadmissible and all evidence admitted by virtue of the statement would be expunged." See also Obidiozor v. The State.
The onus of proof of voluntariness of confessional statement lies on the prosecution. He must also prove" beyond reasonable doubt that'' the confessional statement made by the accused person was free and voluntary. For the evidence of a confession to be admissible the trial court must be satisfied, on the basis of the totality of evidence led in the trial within trial, that the prosecution proved that the confessional statement was voluntary. See Emeka v. The State.
4. Right to be promptly informed of the offence against him
Generally, a person who is accused of an offence must be informed in the language he understands, the true grounds and reasons for his arrest. This proposition is in line with section 35(3) of the 1999 Constitution, which provides that; " Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in the language he understands) of the facts and grounds for his arrest."
It is obvious from this provision of the Constitution that any police officer or other authorized agent who effects an arrest of a person, whether with a warrant of arrest or not, must duly and promptly inform the person of the reason for his arrest. This information must be conveyed to him in the language he understands.
The purpose of this enactment is to provide the suspect with the earliest opportunity within which to respond properly and adequately to the allegation through counsel of his own choice. It will also protect his rights from wanton abuse and intimidation by overzealous and vindictive law enforcement agents, who take undue advantage of their position to humiliate and maltreat innocent citizens, either to settle private cores or at the behest and instigation of business associates or envious competitors.
A suspect or an accused person, who enjoys equal status by virtue of the presumption of innocence in his favour, like every other citizen, is entitled to know what charge or on suspicion of what crime he is being arrested and detained.
Where an accused person is not informed the grounds of his arrest and the police still goes ahead to detain him, the police officer concerned is liable for false imprisonment under the law. He would be bound to pay appropriate compensation to the victim, upon conviction by the court.
Viscount Simon in Christy vs. Leachinsky, had restated the guiding principles to ensure proper communication between the police and the suspect during an arrest as follows:
(a) "If a policeman arrests without warrant upon reasonable suspicion of felony or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(b) If the citizen is not so informed but is nevertheless seized, the policeman apart from certain exceptions is liable for false imprisonment.
(c) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained"
However, the above guidelines which are of persuasive authority, in our shores, are definitely not exhaustive, as each case will be viewed within the prisms of its own peculiar and special circumstances.
(5) Right to contact his lawyer, or any other person of his choice, before yielding to police arrest
Any person suspected or accused of committing a crime is entitled to per-interrogation rights, under the law, by virtue of section 35(2) of the Constitution. That section provides that "Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice."
The implication of the foregoing is that every suspect is guaranteed a pre-interrogation right to counsel and therefore the police and other interrogators are legally bound, not only to inform suspects of this right, at the time of his arrest, but also to fully avail him access to his counsel at every point of the interrogation. Unfortunately, most police interrogations are conducted in violation of this right, as the rules are usually observed more in breach than in compliance.
According to Niki Tobi JSC, "In practice, police and other law enforcement agents, detest and resist, consultations between suspect and counsel whether before, or during interrogations."
In most cases these police interrogators employ all sorts of intimidation, torture and undue influence to extract confessional statements from suspects, who are usually interrogated in the absence of their counsel.
This right which is a basic and fundamental constitutional entitlement of all citizens, remain the most crucial, as it is the fulcrum upon which other rights revolve. This underscored by its centrality as a gate way to the realistic exercise of all other rights of the citizen.
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