Tenure of Elected office Holders
One major fall out of the celebrated case of Peter Obi V. 1NEC, (2007) 7 S. C 268 where the fact that a public office particularly a governor's term can commence years into an original tenure and run deep, into another's tenure, as Governor Peter Obi could only claim his mandate on the 17th March 2006 almost 3 year into original mandate. Peter Obi's case was of course peculiar
Indeed the lead judgment of Aderemi JSC and die concurring Judgment of Katsina-Alu JSC contain the words "For the avoidance of any doubt, this judgment affects the office of the Governor or Anambra State alone" Peter Obi V INEC (Supra) @ 319 and 331.
But as usually happens several others who did not suffer the deprivations experienced by Governor Peter Obi have tried to take advantage of the "window of opportunity" the Peter Obi's case opened by seeking an extension of their tenure. Coming on the heels of the Peter Obi's case was the Ladoja V INEC (2007) 7 S. C. 99 where the former governor of Oyo State who almost 3 years into his tenure in office was illegally removed for about 11 months sought an extension of his tenure. The Supreme Court in rejecting the prayer for term of extension held that "The Constitution of the Federal Republic of Nigeria. 1999 did not grant this Court the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that arc not there"
After the Ladoja case, other situations have arisen in Kogi, Adamawa and Cross River State, where a Governor was elected, removed by Election Petition Tribunal but won the Re-run Elections into their various state governorship offices. A very passionate debate has thus arisen among legal and political scholars as to when their terms of offices began, is it when they first took office under mandates that were nullified or when they won the Re-Run Elections? Sooner than later the courts will be called upon to pronounce on this constitutional conundrum.
Nomination and Substitution of candidates for Elections by Political Parties.
In line with the usual political disposition of our courts for a long time, the Courts refused to get themselves involved in the internal workings of political parties as to who or who not to present for elective office. This was held to be the excusive prerogative of each political party - political matters which were not justiciable in a Court of law.
Onuoha V. Okafor (1983) SCNLR 244 Palhatu V Turaki (2003) 6. S. C. I
However, the nation's political parties were very quick to observe this reluctance of the Court to delve into the internal affairs of a political party. They thus contrived certain very strange methods of seeking party flag bearers: In one instance where there was a party's primaries of 24 candidates, the concerned party the PDP went down the line to pick the 12th most successful candidate over and above the 1st candidate as its party Flag bearer. However the Court taking advantage of section 34 of the Electoral Act 2006, that requires a party to give "cogent and verifiable" reasons for substituting one candidate for the other, to nullify the substitution of the less deserving candidate over the more qualified one Ugwu V Araraume (2007) 6. S. C. (pt 1) 88.
This shenanigan of substituting a less deserving candidate for a worthy one in fact came to an head in the River State Gubernatorial case of - Amaechi V INEC (2008) 1 S. C. (pt 1) 36 where one Celstine Omehia who in fact did not take part
in the party's Primaries was substituted for the winner of the party's primaries, Chibuike Rotimi Amaechi. In an epochal judgment the Supreme Court not only nullified the illegal substitution but ordered the installation of Rotimi Amaechi who won the Primaries as Governor of Rivers State even though he did not take part in the April 2007 election. The second limb of the judgment has however been the subject of intense debates among legal scholars.
But that parties can no longer nominate or substitute candidates at will is now part of the Jurisprudence of the nation's electoral system.
Tribunal Judges and Corruption
In all democracies developed and undeveloped, there is an element of bitter rivalry amongst political parties for elective office. In Nigeria the rivalry is extreme and when the courts come as the unbiased umpire to adjudicate on the electoral dispute between parties, because of the level of partisanship involved the courts even with its best effort hardly escapes unscathed and its garment not smeared with political muck or coal tar. Thus even the most erudite and dispassionate decisions of the electoral tribunals attract great praises and virulent criticisms simultaneously depending on which party is favoured.
However, in several instances the criticism are often accompanied by allegations of corrupt practices by members of the tribunal some of whom are alleged to have been given large sums of money to deliver specially prepared judgment in favour of certain candidates and their party. At first these allegations appeared too shocking and incredible to be true of a legal system that is regarded as one of the best in the world having produced many jurist of global repute. But upon investigation some of these allegations were found to be sadly true.
However, the appropriate authorities promptly took the appropriate legal steps to discipline the erring judicial officers' dismissing them from service.
Yet allegations of corruption against judges serving on Election Tribunals persist with even more frequency such as the recent allegation of unlawful telephone communication between certain members of the Osun State Election Petitions Tribunal and some of the Counsel for one of the parties in the said petition. The matter is however, sub-judice and under investigation.
Thus not much can be said on the matter for now. However, every effort must be made to retain the confidence of the citizens in the integrity of the Court in the administration of justice in general and election petitions in particular.
One of the suggestions that have been put forward is the appointment of retired judges to serve on election petitions tribunal. But this suggestion is easily countered by others who maintain that it might not be so easy to discipline retired judges. If a retired Judge were to be appointed a member or even head of a election petition as Chairman, will he readily take directions from a Chairman who was his junior whilst in service or even as Chairman take orders from even the Chief Justice of the Federation who was probably a junior judicial officer who served under him while he was in service? Even more importantly the opponents of the idea argue than the fear or dismissal loss of terminal benefits by serving judges was a greater incentive for restricting appointment of Election Petition judges to serving Judicial officers.
Burden of proof in Election Petition Case.
By virtue of Section 145 of the Electoral Act 2006, the Petitioner to succeed in an election must prove substantial non-compliance with both the Constitution and the Electoral Act in the election of the declared winner of electoral offences such as ballot box snatching, multiple thumb printing, violence and intimidation of voters, wrongful statement of results, Bribery etc And he must prove these allegations beyond reasonable doubt.
Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 Nwobodo V Onoh (1984) 7 SCNLR 1 Omoboriowo V Ajasin (1984) 1 SCNLR 108 Ojukwu V Onwudiwe (1984) ISCNLR 247 Buhari V Obasanjo (2007) 7 SC (Pt 1) 1
Many Petitioners over the years have found the hurdle of non-substantial compliance too high to scale, with many coming away empty-handed.
This feeling of frustration has led to the call by many for a reversal of the burden of proof so that the declared winner will have the burden of proving that his Victory was in compliance with the Electoral Act.
Attractive as this argument, it has certain limitations; it runs contrary to the fundamental philosophy of our jurisprudence that the burden of proof is on the person who asserts.
Furthermore, if this jurisprudential shift is effected, is the declared winner to prove the validity of his election to as many Petitioners that challenge his electoral victory. That seems unduly burdensome if not altogether impracticable. Whilst the frustrations of would-be petitioners is appreciated particularly where the Electoral umpire such as the Independent National Electoral Commission INEC usually collaborates with a would-be winner to frustrate the success of the Petitioner nevertheless it is submitted that the solution does not lie in the radical shift in the jurisprudence of Election Petitions but instead in the electoral process.
The jurisprudence of Election Petition only deals with the after effect of the electoral process. Thus if the electoral process including the activities of the electoral umpire is flawed, then the best juridical system with the best jurisprudence will achieve nothing. As the late sage Chief Obafemi Awolowo SAN once said "you deal with causes and not effects". It is thus submitted that the problem is not with the election petition system as presently constituted but the electoral process from which the election petitions arise. In that regard the on going efforts to revise the nation's electoral system is most opportune.
The Court of Appeal as the Final Court of Appeal for all electoral disputes except the Presidential Elections.
The Constitutional Provisions which makes the Court of Appeal as the Final Court of Appeal in all Election Petitions except the office of the President have been upheld in such cases as:
Onuaguluchi V Ndu (2001) 7 NWLR (Pt 712) 309 Awuse V Odili (2003) 18 NWLR (pt 851) 116.
Umannah V Attah (2006) 9 S. C. 151.
Where the Supreme Court upheld Section 246 (1) and (3) of the 1999 Constitution. In spite of the finality of the Supreme Court decisions there is growing agitation for a constitutional amendment for all election Petitions to terminate at the Supreme Court. The unique case of Peter Obi V INEC (supra) where jurisdictional limitations could not prevent the Court from declaring
(1). That there was no vacancy in the Anambra State Governor's office in April
2007.
(2). That the Gubernatorial election in Anambra State in April 2007 was a nullity; is used as justification for the need for the Supreme Court to be able to make a final pronouncement on election petition related matter.
This is however a moot point as the desirability of having the Supreme Court to pronounce on all electoral issues has to be weighed against: first, the need for all electoral disputes to be determined on tune in view of the limited 4-year tenure of most elective offices. Even without the intervention of the Supreme Court the average duration of most electoral disputes is 18 months almost half of the 4 year term of elective offices, adding one more level of appeal is not likely to improve the situation. Secondly, adding to the Supreme Court's jurisdiction is likely to add to the already heavy work - load of the apex Court. Some Constitutional Scholars have argued in support of the proposition that all electoral disputes should end in the Supreme Court that the Apex Court should in fact be a Constitutional Court in the manner of the U. S. Supreme Court which deals essentially with Constitutional matters. The result of this suggestion is that the usual final jurisdiction of the Supreme Court to attend to the various sundry matters that affects the proverbial common-man: criminal cases, land matters, labour disputes, contracts, Succession, libel/Islander, Negligence will be sacrificed- If this were to be done will the Supreme Court as the apex Court retain its position as "the last hope of the common man" your guess is as good as mine!
CONCLUSION
This Essay is not by any means an exhaustive exposition of the Nigerian Jurisprudence of Election Petitions, to attempt such effort nothing short of a standard text will do. All that is been done here is to highlight certain critical aspects of the law and practice of Election Petition in recent times that have generated much public interest and debate and calls for appropriate legislative even constitutional reforms!
Thursday, July 31, 2008
Monday, June 23, 2008
CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE (11)
CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE By Ademola Adewale
CONTINUED FROM LAST WEEK…
One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers have been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.
Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.
It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.
Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.
(iv) DE-NOVO TRIALS:
Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71
This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.
There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.
(v) Dead, Infirm, Missing or Unavailable Witnesses:
It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.
It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.
The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.
This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.
Conclusion:
This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.
CONTINUED FROM LAST WEEK…
One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers have been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.
Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.
It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.
Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.
(iv) DE-NOVO TRIALS:
Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71
This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.
There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.
(v) Dead, Infirm, Missing or Unavailable Witnesses:
It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.
It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.
The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.
This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.
Conclusion:
This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.
Saturday, June 14, 2008
CURRENT ISSUES IN THE LAW AND PRACTICE OF EVIDENCE
THE PROFESSOR’S PODIUM
By Ademola A. Adewale
INTRODUCTION:
The law and practice of the law of evidence is at the heart of the practice of court room lawyers, advocates - who still remain the archetype of the lawyer in the minds of most members of the society. The practice and procedure of the law of evidence for the most part, determines the outcome of cases. For the claimant, how much of the legally required evidence he can produce to substantiate his claim, and for the defendant, how much of the evidence of his opponent he can shut out altogether or at least discredit to sustain his defence. In the final analysis, when the imaginary scale of justice is weighed by the impartial arbiter, the judge, the decision is given in favour of whichever party, the heavier scale tilts. Mogaji vs. Odofin (1978) 4 S.C. 93; Mogaji Vs. Cadbury Nigeria Limited (1985) 2 NWLR (Pt 7) 393.
Thus, the law, practice and procedure on evidence is crucial to the dispensation of justice in the land. The point however may be made in passing, that other times the outcome of cases could be more dependent on the application of strictly legal issues like principles of common law, statute or the constitution. Largely, the evidence on offer by parties hold the key to the eventual outcome. Till date, the primary source of the law of evidence remains the Evidence Act (applicable as Laws in the States of the Federation) first enacted m 1945, with minor revisions and modifications in 1958, 1990, 2004 and 2007. Yet, the whole world including our nation, Nigeria has undergone tremendous socio-political and legal changes since the British colonial government adopted the 12th Edition of the Sir Stephen's Digest of the Law of Evidence for Nigeria on 1st June, l945.
Due to the constraint of time and space, it is impossible to highlight all the areas where the existing law of evidence remains inadequate. Just a handful of areas will be highlighted for discussion.
(i) Tendering of Newspapers and Magazines.
It is usually difficult to tender Newspapers, Magazines or journals in our courts. That is because most judges insist on accepting only certified true copies of such Newspapers, magazines or journals, which can only be tendered through an official of the National Library Board. So in practice, a party is put to the expense of making photocopies of the said magazines, newspapers or journals from his own personal record or library, taking the same to the National library for certification, taking out a subpoena to summon to court, the officer of the National Library Board to tender the said certified copy from so-called proper custody, with all the attendant costs and expenses. Almost invariably the said certified true copy is nowhere as legible or clear to the sight as the original copy of the said publication, which is in private hands. What is particularly disturbing here is that this issue has been resolved as far back as 1979 in the case of Ogbunyiya vs. Okudo (1979) 3 L.R.N 318 by the Supreme Court, that “On the true construction of sections 112(a) (i) and 115 of the Evidence Act, a court which has before it a public document must take account of and admit the document in evidence and there is no need for the public document to be produced in court by a witness testifying on oath" with the effect that rather than tender illegible certified true copies of newspapers and journals through the national librarian, the real newspapers could in fact be tendered by counsel from the Bar or at least tendered through a witness in the box. Yet, four out of five judges prefer the procedure of tendering the certified true copy to the original. The new evidence law must enact the Ogbunyiya v Okudo (supra) decision into law and remove this archaic procedure.
(ii) Proper Custody and Maker of Documents:
Another of the more popular yet anachronistic procedure known to our law is the law of evidence relating to proper custody. The application of this rule, particularly in civil matters, is simple enough and that is, the best person to tender a document in evidence is the maker itself. This is captured in essence in Section 91 of the Evidence Act. But in practice, the operation of this rule gives results that could not have been intended by the makers of the evidence act. For example, if a fact in issue relates to a function I attended, at which my pictures were taken by a photographer whom I never met before the occasion and has not seen ever after. I will find it difficult to tender the photographs of my very person in my possession before most judges without the evidence of the negatives or the photographer himself. In fact, most judges will insist that only the photographer who took my photograph pictures can tender them and then with the negatives. I am of course not unaware of the proviso to Section 91(b) as to tendering these photographs in the absence of the photographer if he is dead, unable to attend court for infirmity of body or mind. If he is overseas, it will be very expensive to get him to court, or if I am unaware of his whereabouts. But, anyone who is familiar with law practice knows that satisfying any of these conditions is easier said than done, particularly with an able counsel on the opposing side.
The rule of proper custody is particularly burdensome in matters relating to documents in official or public custody when such documents relate to a case against government or public interest. Who is that Nigerian public official to assist you not only in procuring a document that will assist your case or matter against the agency where he works or goes ahead to certify the same for you? Yet in such matters by a combined reading of Sections 97, 109 and 111 of the Evidence Act and Section 7 of the Public Archives Act, only the certified true copy of the said documents, certified by an officer or director of the appropriate department (and in certain instances with the seal of the said department) are admissible in evidence as secondary documents.
Olukade Vs Alade (1976) 1 ANLR 56 at 61
Owodunmi Vs. Reg. Trustees of C.C.C. (2000) 6 S. C. (Pt 111) 60
Araka Vs. Egbue (2000) 12 S.C. (Pt 1) 99.
In the golden era of the Supreme Court when activists justices such as Kayode Eso and Chukwudifu Oputa, held sway in the apex courts, serious efforts were made to whittle down this anachronistic and technical rule of admissibility in such cases as in the celebrated case of Torti vs.Ukpabi (1984) 1 S.C. 370 where it was held that in the admissibility of documents in evidence, the major issue to be considered is relevancy and not proper custody. Indeed Kayode Eso JSC went so far as to say that the rule relating to proper custody is now anachronistic even in relation to public documents.
Thus, in Torti Vs Ukpabi (supra) a party was allowed to tender in evidence duplicate copies of certain electoral documents in his possession when FEDECO, the predecessor of the present day, INEC, refused to make available the certified true copy of the said form.
The court took advantage of the occasion to make the necessary distinction between admissibility and weight; the court held that a document that is relevant to a fact in issue which is pleaded is relevant and admissible while the question of weight becomes relevant as to whether it is from proper custody or not. Thus, a document could be admitted in evidence if it is relevant but at the end of the day no weight might be attached to it if it is not from proper custody and perhaps suffers other legal defects. The Torti vs. Ukpabi case was seen as being revolutionary by many pundits overturning the very restrictive practice and procedure in admitting public documents or even private documents which are otherwise not readily available. But the law has in recent times turned full cycle with the Supreme Court going back to the restrictive rules of admissibility of the days of yore.
Araka VS Egbue (2003) 17 NWLR (Pt. 848) 1 @18
Onochie vs. Odogwu (2006) 2 S.C (Pt. II) 153
Thus, documents can only be readily tendered by their makers and in the case of public documents, only from proper custody. It is suggested that the more liberal approach espoused in Torti Vs Ukpabi should form part of our new law of evidence.
(iii) Electronically Generated Evidence including Computer print-outs Of Statements of Account.
These are the days of the internet with the attendant electronic lifestyle: e-commerce, e-banking, e-government and even, e-litigation which is gradually catching up and ready to overtake the way and manner litigation is conducted. In jurisdiction like Lagos, the courts are automated with court proceedings captured by electronic recording systems, there is talk of e-filing by which court processes will be filed on-line and it is only a matter of time, perhaps in less than a decade from now when court proceedings will be conducted on-line or media-conference style with counsel either in the comfort of their offices or from designated centres arguing their motions or conducting trials of witnesses who might perhaps not be at the same location with their counsel. The only limiting factor to what the court proceedings of the very near future might be is lack of imagination or absence of the will to move with the times.
In such a setting, it is very obvious that the main body of our law of evidence which is the Evidence Act set in the atmosphere of 1945, is simply pristine and archaic. Little wonder that some of the greatest problems lawyers encounter in relation to evidence in court is in relation to electronically generated evidence. Some of the best legal minds in the land such as Prof. Yemi Osibajo SAN have done extensive studies in this area and there is little I can do to improve on their efforts except to highlight one or two areas that regularly affect the day-to-day practitioner.
Tendering of e-mails:-
Virtually every court of law will admit in evidence an e-mail letter that is relevant to a fact in issue in a matter. Problems usually arise in relation to transactions involving public or government agencies, particularly where there is a dispute as to the admissibility of the e-mail. What happens when an individual or a private organization sends an e-mail to a government agency, particularly where there is a dispute as to the admissibility of the e-mail to a government agency where the officers of the agency concerned deny receipt, how will the dispute be resolved? By the tendering of the floppy drive or flash drive? Again, what happens where a public agency sends an e-mail to an individual or private organization and the latter disputes the receipt of the mail, will the hard copy of the message, which by necessary implication will not contain the government official logo, be admissible in evidence? Is the problem solved by certifying the hard copy of the e-mail? Even if the latter is accepted under Section 97 of the Evidence Act as it presently stands, does it prove the fact of receipt by the disputing party? What is the probative value of the scores of SMS/text message we daily send and receive under the Evidence Act? And in the absence of technology locally for call tracing/tracking as it exists in more developed societies, how easy is it under the present law of evidence to prove that a particular call emanated from an accused person in a criminal trial? I have no answers for most of these posers, and those who do will do well to sit down as a group and update our Evidence Act to effectively answer the above and other related questions.
One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers has been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.
Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.
It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.
Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.
(iv) DE-NOVO TRIALS:
Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71
This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.
There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.
(v) Dead, Infirm, Missing or Unavailable Witnesses:
It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.
It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.
The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.
This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.
Conclusion:
This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.
By Ademola A. Adewale
INTRODUCTION:
The law and practice of the law of evidence is at the heart of the practice of court room lawyers, advocates - who still remain the archetype of the lawyer in the minds of most members of the society. The practice and procedure of the law of evidence for the most part, determines the outcome of cases. For the claimant, how much of the legally required evidence he can produce to substantiate his claim, and for the defendant, how much of the evidence of his opponent he can shut out altogether or at least discredit to sustain his defence. In the final analysis, when the imaginary scale of justice is weighed by the impartial arbiter, the judge, the decision is given in favour of whichever party, the heavier scale tilts. Mogaji vs. Odofin (1978) 4 S.C. 93; Mogaji Vs. Cadbury Nigeria Limited (1985) 2 NWLR (Pt 7) 393.
Thus, the law, practice and procedure on evidence is crucial to the dispensation of justice in the land. The point however may be made in passing, that other times the outcome of cases could be more dependent on the application of strictly legal issues like principles of common law, statute or the constitution. Largely, the evidence on offer by parties hold the key to the eventual outcome. Till date, the primary source of the law of evidence remains the Evidence Act (applicable as Laws in the States of the Federation) first enacted m 1945, with minor revisions and modifications in 1958, 1990, 2004 and 2007. Yet, the whole world including our nation, Nigeria has undergone tremendous socio-political and legal changes since the British colonial government adopted the 12th Edition of the Sir Stephen's Digest of the Law of Evidence for Nigeria on 1st June, l945.
Due to the constraint of time and space, it is impossible to highlight all the areas where the existing law of evidence remains inadequate. Just a handful of areas will be highlighted for discussion.
(i) Tendering of Newspapers and Magazines.
It is usually difficult to tender Newspapers, Magazines or journals in our courts. That is because most judges insist on accepting only certified true copies of such Newspapers, magazines or journals, which can only be tendered through an official of the National Library Board. So in practice, a party is put to the expense of making photocopies of the said magazines, newspapers or journals from his own personal record or library, taking the same to the National library for certification, taking out a subpoena to summon to court, the officer of the National Library Board to tender the said certified copy from so-called proper custody, with all the attendant costs and expenses. Almost invariably the said certified true copy is nowhere as legible or clear to the sight as the original copy of the said publication, which is in private hands. What is particularly disturbing here is that this issue has been resolved as far back as 1979 in the case of Ogbunyiya vs. Okudo (1979) 3 L.R.N 318 by the Supreme Court, that “On the true construction of sections 112(a) (i) and 115 of the Evidence Act, a court which has before it a public document must take account of and admit the document in evidence and there is no need for the public document to be produced in court by a witness testifying on oath" with the effect that rather than tender illegible certified true copies of newspapers and journals through the national librarian, the real newspapers could in fact be tendered by counsel from the Bar or at least tendered through a witness in the box. Yet, four out of five judges prefer the procedure of tendering the certified true copy to the original. The new evidence law must enact the Ogbunyiya v Okudo (supra) decision into law and remove this archaic procedure.
(ii) Proper Custody and Maker of Documents:
Another of the more popular yet anachronistic procedure known to our law is the law of evidence relating to proper custody. The application of this rule, particularly in civil matters, is simple enough and that is, the best person to tender a document in evidence is the maker itself. This is captured in essence in Section 91 of the Evidence Act. But in practice, the operation of this rule gives results that could not have been intended by the makers of the evidence act. For example, if a fact in issue relates to a function I attended, at which my pictures were taken by a photographer whom I never met before the occasion and has not seen ever after. I will find it difficult to tender the photographs of my very person in my possession before most judges without the evidence of the negatives or the photographer himself. In fact, most judges will insist that only the photographer who took my photograph pictures can tender them and then with the negatives. I am of course not unaware of the proviso to Section 91(b) as to tendering these photographs in the absence of the photographer if he is dead, unable to attend court for infirmity of body or mind. If he is overseas, it will be very expensive to get him to court, or if I am unaware of his whereabouts. But, anyone who is familiar with law practice knows that satisfying any of these conditions is easier said than done, particularly with an able counsel on the opposing side.
The rule of proper custody is particularly burdensome in matters relating to documents in official or public custody when such documents relate to a case against government or public interest. Who is that Nigerian public official to assist you not only in procuring a document that will assist your case or matter against the agency where he works or goes ahead to certify the same for you? Yet in such matters by a combined reading of Sections 97, 109 and 111 of the Evidence Act and Section 7 of the Public Archives Act, only the certified true copy of the said documents, certified by an officer or director of the appropriate department (and in certain instances with the seal of the said department) are admissible in evidence as secondary documents.
Olukade Vs Alade (1976) 1 ANLR 56 at 61
Owodunmi Vs. Reg. Trustees of C.C.C. (2000) 6 S. C. (Pt 111) 60
Araka Vs. Egbue (2000) 12 S.C. (Pt 1) 99.
In the golden era of the Supreme Court when activists justices such as Kayode Eso and Chukwudifu Oputa, held sway in the apex courts, serious efforts were made to whittle down this anachronistic and technical rule of admissibility in such cases as in the celebrated case of Torti vs.Ukpabi (1984) 1 S.C. 370 where it was held that in the admissibility of documents in evidence, the major issue to be considered is relevancy and not proper custody. Indeed Kayode Eso JSC went so far as to say that the rule relating to proper custody is now anachronistic even in relation to public documents.
Thus, in Torti Vs Ukpabi (supra) a party was allowed to tender in evidence duplicate copies of certain electoral documents in his possession when FEDECO, the predecessor of the present day, INEC, refused to make available the certified true copy of the said form.
The court took advantage of the occasion to make the necessary distinction between admissibility and weight; the court held that a document that is relevant to a fact in issue which is pleaded is relevant and admissible while the question of weight becomes relevant as to whether it is from proper custody or not. Thus, a document could be admitted in evidence if it is relevant but at the end of the day no weight might be attached to it if it is not from proper custody and perhaps suffers other legal defects. The Torti vs. Ukpabi case was seen as being revolutionary by many pundits overturning the very restrictive practice and procedure in admitting public documents or even private documents which are otherwise not readily available. But the law has in recent times turned full cycle with the Supreme Court going back to the restrictive rules of admissibility of the days of yore.
Araka VS Egbue (2003) 17 NWLR (Pt. 848) 1 @18
Onochie vs. Odogwu (2006) 2 S.C (Pt. II) 153
Thus, documents can only be readily tendered by their makers and in the case of public documents, only from proper custody. It is suggested that the more liberal approach espoused in Torti Vs Ukpabi should form part of our new law of evidence.
(iii) Electronically Generated Evidence including Computer print-outs Of Statements of Account.
These are the days of the internet with the attendant electronic lifestyle: e-commerce, e-banking, e-government and even, e-litigation which is gradually catching up and ready to overtake the way and manner litigation is conducted. In jurisdiction like Lagos, the courts are automated with court proceedings captured by electronic recording systems, there is talk of e-filing by which court processes will be filed on-line and it is only a matter of time, perhaps in less than a decade from now when court proceedings will be conducted on-line or media-conference style with counsel either in the comfort of their offices or from designated centres arguing their motions or conducting trials of witnesses who might perhaps not be at the same location with their counsel. The only limiting factor to what the court proceedings of the very near future might be is lack of imagination or absence of the will to move with the times.
In such a setting, it is very obvious that the main body of our law of evidence which is the Evidence Act set in the atmosphere of 1945, is simply pristine and archaic. Little wonder that some of the greatest problems lawyers encounter in relation to evidence in court is in relation to electronically generated evidence. Some of the best legal minds in the land such as Prof. Yemi Osibajo SAN have done extensive studies in this area and there is little I can do to improve on their efforts except to highlight one or two areas that regularly affect the day-to-day practitioner.
Tendering of e-mails:-
Virtually every court of law will admit in evidence an e-mail letter that is relevant to a fact in issue in a matter. Problems usually arise in relation to transactions involving public or government agencies, particularly where there is a dispute as to the admissibility of the e-mail. What happens when an individual or a private organization sends an e-mail to a government agency, particularly where there is a dispute as to the admissibility of the e-mail to a government agency where the officers of the agency concerned deny receipt, how will the dispute be resolved? By the tendering of the floppy drive or flash drive? Again, what happens where a public agency sends an e-mail to an individual or private organization and the latter disputes the receipt of the mail, will the hard copy of the message, which by necessary implication will not contain the government official logo, be admissible in evidence? Is the problem solved by certifying the hard copy of the e-mail? Even if the latter is accepted under Section 97 of the Evidence Act as it presently stands, does it prove the fact of receipt by the disputing party? What is the probative value of the scores of SMS/text message we daily send and receive under the Evidence Act? And in the absence of technology locally for call tracing/tracking as it exists in more developed societies, how easy is it under the present law of evidence to prove that a particular call emanated from an accused person in a criminal trial? I have no answers for most of these posers, and those who do will do well to sit down as a group and update our Evidence Act to effectively answer the above and other related questions.
One area of this sub-theme about the incompatibility of the present state of our laws with the reality of the times is almost daily manifested in the tendering of contemporary bank statement of accounts done in the form of computer print-outs. At the expense of being branded a hypocrite, I, just like many other lawyers has been a beneficiary of the archaic state of our law of evidence. The scenario here is quite simple, in a civil trial involving a banker-customer relationship, the bank's lawyer attempts to tender the customer's statement of accounts usually in the form of a computer print out on a sheet which clearly had the bank's logo and other symbols on it. The customer's lawyer objected to the admissibility of the computer print out as not satisfying the certification requirement of Section 97(l)(h), 2(e) of the Evidence Act and citing several cases such as Yassin Vs. Barclays Bank D.C.O (1968) 1 NMLR 171 at 179, Yesufu Vs. A.CB (1976) 1NMLR 83, Oguma Ltd Vs. IBWA (1988) 1 NWLR (Pt 731) 656, Araka vs. Egbue (2003) 7S.C. 75.
Almost invariably, the customer's lawyer's objection was upheld, as being the present state of law, though the court laments the injustice thereby occasioned but which only the legislature can correct.
One fear the courts continue to entertain in relation to computer generated evidence generally, whether banker's statement or otherwise is the likelihood of being manipulated to deceive. Niki Tobi J.S.C. summarises such fears in Araka Vs. Egbue (supra). "One main objective behind Section 97 (2) ( c) of the Evidence Act is to ensure the authenticity of the document tendered vis-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97(2) cal could be tutored and therefore not authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks." No one, I believe can improve on the reason given by his lordship for the suspicion with which our courts treat computer generated evidence including computer print-outs and statements of accounts.
Nevertheless, it is submitted that our law of evidence ought to be updated to admit computer print-outs in line with modern day realities. Perhaps, the new law will accommodate the distinction between weight and admissibility, making computer-generated evidence admissible upon the fact of relevance subject of course to weight to be attached. In the case of Statements of Accounts, perhaps the new law may contain a proviso that no weight is to attach to documents admitted in evidence unless corroborated by some other evidence.
It is worthy of note, that while our law on electronically-generated evidence remains in infancy, in the more technically advanced jurisdictions, the talk has already shifted to the admissibility or not of contract executed beyond borders by scanning the parties’ signatures.
Finally, on this point, the clarification needs to be made that most of the concerns on computer-generated evidence relates to civil cases as opposed to criminal cases where it would seem that based on the rule in the old case of Musa Sadau vs. State (1968) NMLR 208. A piece of evidence may be relevant and admissible in a criminal case even though obtained illegally. This would explain the relative success of agencies like the Economic and Financial Crimes Commission, (EFCC) in securing convictions for international financial crimes where most of the evidence consists of electronically-generated evidence like e-mails, fax messages, electronically wired instructions etc.
The challenge still remains, nonetheless to bring our law of evidence up to date with international and global practices.
(iv) DE-NOVO TRIALS:
Many at times, years and months of painstaking judicial efforts become undone and come unstuck by certain supervening events beyond the control of all those involved, including the judge. A judge or case is suddenly transferred, judge gets elevated to higher bench or secures another judicial appointment which takes time, sometimes, for months or a few years. Judge retires or suddenly passes on; and all the efforts so far which have been agonizingly slow in the first case, have to start afresh as if it were a new case; courtesy of the DE NOVO Principle “....trying a matter anew, and as if no decision had been previously made.” New hearing or a hearing for the second time, contemplating an entire new trial in the same manner in which the matter was originally heard and a review of the previous hearing. Trial de-novo means nothing more than a new trial. This further means that the Claimant is given another chance to re-litigate the same matter or rather, in a more general sense, the parties are at liberty, one more to reframe their case and restructure it as each may deem it appropriate. In trials de-novo, the case must be proved anew or rather re- proved and therefore, the evidence and verdict given previously are completely inadmissible in a matter de-novo on the basis that prima facie, they have been discarded or got rid of. Babatundc Vs Par Atlantic Shipping Agencies Ltd (2007) 4 S.C. (Pt I) 71
This rare instance of a second bite at the cherry is predicated on the desire to allow the new judge to start on a new slate without being influenced by the biases and the prejudices of the earlier judge. It is possible that in the new trial, evidence which had been tendered and marked "rejected" in the old trial may be freshly tendered and properly admitted by the new judge or vice-visa. But the procedure is not without serious problems; vital documents tendered in the earlier suit do at times get lost, while star witnesses who testified in the earlier suit, might as at the time of the second trial, died, become infirm in mind or body or simply be unavailable for trial.
There exists a procedure to tender the earlier evidence in the first trial under Section 34(1) of the Evidence Act. Shanu Vsa Afribank Plc (2002) 6.S.C. (Pt. ii) 135. But, the requirements of the section are stringent and applied by the court strictly, such that it is not automatic that the earlier evidence will sail through in the new trial. It is suggested that the new law of evidence should relax the rules of admitting previous evidence, particularly where the same has been captured electronically. Furthermore, in the case of missing documents, copies of the original should be admissible in evidence subject to the weight of evidence to be attached. This can only make our law of evidence more responsive to the attainment of justice.
(v) Dead, Infirm, Missing or Unavailable Witnesses:
It is not the phenomenon of a trial de-novo that is the reason for concern per se, but our notoriously slow judicial process. It is not uncommon in long, drawn trials that the vital witnesses are elderly men and women, many of who pass on or become infirm during the trial at any stage between examination-in-chief, cross-examination or re-examination thereby making it impossible for their testimonies to be concluded. The prevailing practice is to expunge their testimonies, particularly if they have not been cross-examined or where cross-examination has not been concluded. Where a party's case rest mainly on the testimony of these elderly ones a certain failure of claim or defence is assured, the feeling of helplessness is best imagined.
It is suggested that these vital, even if incomplete testimonies should be admissible in evidence subject to the necessary weight to be attached based on the surrounding circumstances, such as corroboration of evidence by other witnesses, documents available etc. Here, the new law of evidence might borrow a leaf from the existing Sections 117 and 118 of the Evidence Act which were in fact used by the Supreme Court to admit in evidence a Power of Attorney sworn to before a Notary Public in the common law nation of Hong Kong in our Nigerian Court in Melwani vs. Five Star Industries Limited (2002) 1 S.C. 120.
The suggested provision becomes all the more compelling in view of the front-loading provisions of some of our jurisdictions like Lagos and the F.C.T Abuja where all depositions are in fact made on oath before a Commissioner of Oath, even before the witness steps into the witness box to give evidence.
This will certainly revolutionise the tendering of evidence of witnesses who due to no fault of theirs are unable to complete their testimonies. This can only serve to bringing justice closer to the people which is the major objective of the judicial process.
Conclusion:
This essay is by no means conclusive of the changes required to bring our law of evidence at par with the demands of the present times. Nevertheless, an attempt in all modesty has been made to draw attention to certain areas where the existing regime of the law of evidence is patently inadequate to serve the objective of the Nation's judicial system to bring justice closer to all citizens.
Friday, May 30, 2008
WITHER THE LAW IN BETWEEN ACTIVISM AND CONSERVATISM?
THE PROFESSOR’S PODIUM
By Ademola A. Adewale esq.
Generations of lawyers have been trained to believe in the conservative nature of the legal profession. Right from the very first lecture the would-be lawyer is taught to accept without question, the unique nature of the profession for which he is being groomed. He is made to realise that he is not like any other student on campus, not even the medical, engineering and certainly not like the liberal arts and or science students. That one of the features of the profession's unique nature is its conservatism and that the would-be lawyer will do well to avoid such pitfalls like excessive partying, socialising and involvement in sports, beauty pageants for the ladies and the great allure of students activism, if the student is to graduate at all, on schedule with his peers and with good grades.
Whatever remains undone by the law faculty in moulding the aspiring lawyer into shape is shortly perfected by the law school, though the general deportment of many of the new entrants to the Profession in recent times belie this assumption. Thus, by the time the former law student is enrolled as a Solicitor and Advocate of the Supreme Court, he is in addition to possessing the basic academic credentials sufficiently indoctrinated and inducted in the ethics and tradition of the honourable and learned legal profession. Formal dressings in public, both in and out of court, decorous mannerism and comportment, quaint even archaic expression and use of language as in wherefore, howsoever, thereat and thereupon, proceeded and estopped are the order of the day.
The process of acculturation is not complete upon the attainment of the enviable status of Solicitor and Advocate of the Supreme Court of Nigeria but continues all through Messrs Legal Practitioner's Professional Life.
Thus, the conservative nature of the legal profession has never been in doubt. If anything, it is further reinforced by the adherence to the strict rules of practice and procedure by the court through the stare decisis doctrine, canons of interpretations, legal maxims and the principles of equity, which ironically arose out of the desire to whittle down the rigidity of the law.
But as is usual in life, there appears on the horizon every now and then, a crusader, maverick and genius who charts a new path that debunks old ways of doing things and gives directions to generations yet unborn. In the legal profession, the English had Lord A. T. Denning, Master of the Rolls, the Americans, Oliver Wendell Holmes and Earl Warren and in Nigeria, we have had Justices Chike Idigbe, Kayode Eso and Chukwudifu Oputa and also at the Bar, the inimitable Chief Gani Fawehinmi S.A.N, S.A.M, and the late Alao-Aka Bashorun Esq.
The refreshingly different approach which these jurists have brought into the legal profession is called activism or more appropriately put, judicial activism. One oft-quoted saying that captures the essence of the activism under focus is the words of Lord Denning M. R. when he said; “what is the argument on the other side, that it has not been done before. I am not in the least impressed by that argument. If we are to sit down and do nothing simply because it has not been done before, then nothing will ever get done. That will be bad for law.”
This Anglo-American legal creation has its roots in such cases like the celebrated anti-Segregation case of Brown Vs. (Topeka) Board of Education which revolutionised the American civil rights movement. What would have happened if there had been no judicial activism on the American Bench in 1954 when the US Supreme Court gave that landmark decision of equal rights for citizens under the American constitution.
On the English side, the many apostles of Lord Denning are familiar with the long line of decisions eloquently testifying to the activist nature of this English sage and great jurist. The High trees case: Central London Trust Property Ltd Vs. High Trees Home Ltd (1947) L K. B. 130 on promissory estoppel, Macfoy Vs. U.A.C, on the impossibility of building something on nothing (1962 A. C. 152 at 160).
Trendtex Trading Corporation Vs. Central Bank of Nigeria (1977) QB 529, (at) 554 on the ever changing nature of International Law. Wiseman Vs. Wiseman (1953-56) P.D. 79 at 91 D.P.P. Vs. Smith (1961) AC 290
And a legion of other cases. Yet, another quotation from one of the above cases will readily testify to the seemingly maverick nature of judicial activism. In Trendtex Trading Corporation Vs. Central Bank of Nigeria (Supra) Lord Denning M. R said inter alia; “The bounds of sovereign immunity have greatly changed in the last 30 years. The changes have been recognised in many countries, and the courts of our country and of theirs have given effect to them without any legislation for the purpose".
“If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change and apply the change in our English law without waiting for the House of Lords to do it".
The words quoted above are a direct challenge to the settled principles of common law that judges declare the law not make law - Jus Decisis not Jus Dare. Nigeria has not been short of exponents of judicial activism and from the effort of such exponents both on the Bench and the Bar have arisen several cases which have greatly enriched the nation's jurisprudence.
It used to be the law that a public servant was just as helpless as his private counterpart from dismissal from work until Justice Chike Idigbe of the Supreme Court thought otherwise in Shitta-Bey Vs. Federal Public Service Commission (1981) 1-SC 40 and inspired a judicial revolution that was to be followed in several cases like Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt. 9) 559, Federal Civil Service Commission vs. Laoye (1989) 2 NWLR(pt 106) 652 wherein Oputa JSC and Esq JSC followed the trail blazed by Idigbe JSC.
Similar fears of helplessness were earlier entertained in Higher Institution disciplinary cases where it was believed that just like in England a student owed his stay on campus completely at the pleasure of the school's visitors and authorities in the manner of the English cases of Thompson vs. University of London (1864) 33 LJCH 625, Thorne vs. University of London (1966) 2 QB 327 and the earlier Nigerian case of Akintemi vs. Onwumechili (1985) 1 NWLR (Pt) 68.
But all these fears were completely debunked by activist lawyer Chief Gani Fawehinmi SAN and an equally activist Supreme Court at the expense of a Conservative Chief F.R.A. Williams SAN and his equally conservative client, Garba vs. University of Maiduguri (1986) 1 NWLR (Pt 18) 550
Remedies were manufactured to meet the situation, even when none existed in Bello vs. AG Oyo (1986) 5 NWLR (pt 45) 828.
In the same vein, the strict provisions of the law were not allowed to defeat a man's right to chares in compensation by his equally guilty and even more unscrupulous partners in Oil field supply centre vs. Johnson (1987) 2 NWLR (part 58)'625.
Neither was a Counsel's error of interpretation of a law allowed to prejudice the hearing of his client's case on merit. Nneji vs. Chukwu (1988) 3 NWLR (Pt 81). While the fact of a defendant filing his defence on the very day of the Plaintiffs motion for judgment was not such a grievous 'sin' as to allow the Plaintiff unhindered passage to judgment. UTC vs. Pamotei (1989) 2 NWLR (pt 103) 244.
These decisions and others with their high activists flavour were products of the golden era of the Supreme Court when several activists justices including those already mentioned sat in the hallowed chambers of the Supreme Court.
Happily, the rank of activists in the apex Court is not closed as several of the recent causes celebrated bear the tell tale signs of judicial activism, although the ethics of the profession makes it improper for me to mention serving justices - yet another sign of conservatism.
However, there are growing concerns that unbridled activism might at the end of the day be counter-productive. In one celebrated case the Nations electoral body which amongst thing performs the administrative duty of screening eligible candidates for election was held incapable of doing so.
The practical question to ask is, in a general election with several scores of candidates, is the INEC to go to court to seek court's clearance for each of the several candidates against whose candidature there might be queries? Can our court system cope with such a situation? Action Congress vs. INEC (2007) 6S.C. (Pt. II)
In yet another case, the court held that the president and his vice could after being sworn in changed parties and belong to different political parties. If I and the Editor-in Chief of the SQUIB, were to contest and win election as Governor and Deputy Governor in Lagos State on the platform of the SQUIB party and soon after inauguration I now change party to the Professor's party, which party's programme are we to perform to the good people of Lagos State, the Squib's or the Professor's? Your guess is as good as mine! A.G- Federation Vs. Abubakar (2007) 4 S.C. (Pt II) 2
Incidentally, it is not only in Nigeria that unbridled activism is viewed with suspicion. An American scholar had this to say about "Judicial Activism".
"If to resolve the dispute the court must create a new rule or modify an old rule. That is law creation. Judges defending themselves from accusation of judicial activism sometimes say they do not make law, they only apply it. It is true that in our system judges are not supposed to and generally do not make new law with the same freedom the legislatures can and do, they are in, in Oliver Wendell Holmes phrase, "confined from molar to molecular motions." Contrast this with our own Supreme Court "it is the duty of the judex to expound what the law is' and we should loyally follow the doctrine of Stare decisis. Our problems as judges should and must not be to consider what social and political problems do today require, that is to confuse the task of a judge with the task of a legislator".
"In my humble view, he (the judex) is far better employed if he puts himself to much simpler task of deciding what the law is" Dapialong vs. Dariye (2007) 4 S.C. (Pt III) 118 at 216/217.
The above of course puts beyond doubt the conservative nature of our courts and by extension the legal and judicial systems. Yes, our judicial system is too far rooted in conservatism to be overtaken by the periodic interventions of legal and judicial activists. Nevertheless, there will always be those extra- ordinary and situations that demand the unorthodox approach of the activists in our midst for effective solution, but such occasions will remain the exception rather than the rule.
Above all however, the legal profession will continue to thrive on conservatism and judicial restraint, which have served the Profession well through the ages.
Monday, May 12, 2008
PROFILES IN EXCELLENCE: THE DEPARTURE OF LEGAL ICONS By Ademola Adewale Esq.
THE PROFESOR’S PODIUM
In the space of less than a week the Nigerian legal world, indeed the Nigerian nation lost two legal luminaries Chief Abraham Adesanya and Professor Jadesola Akande, both legal icons in their own right. First was Chief Abraham Adesanya at the ripe age of 85 years. Pa Adesanya excelled both in the practice of the law and in politics. Any one who has
ever read any of Chief Awolowo's Classic auto - biographies particularly "My March through Prison" is left in no doubt about Chief Awolowo's fondness for the younger Abraham who had the privilege of ferreting out from the late Sage's impressive Library relevant law texts with which the great man prepared his defence for the various legal/political travails; from the Coker Commission of Enquiry, the Treasonable -Felony trial and the appeals there from to the then Federal Supreme Court all from the confines of the then Broad Street Prison.
Pa. Adesanya, as a great disciple of Chief Awolowo was also a member of Chief Awolowo's Legal team in the Awolowo Vs Shagari 122/3 Case, which was initially led by the late sage himself, before he strategically handed over the' conduct of the case to yet another luminary Chief G.O.K. Ajayi SAN.
Pa. Adesanya, was elected a member of the Senate under the platform of the defunct Unity Party of Nigeria, UPN for Ogun State in the Second Republic between 1979- 1983. It was in this office as a distinguished Senator of the Federal Republic of Nigeria that he challenged the appointment of Justice Victor Ovie- Whiskey as the Chairman of then FEDECO (Federal Electoral Commission) the predecessor of the present day INEC. In the celebrated case of Adesanya vs Federal Republic of Nigeria argued on his behalf by the irrepressible Chief Gani Fawehinmi, he was unsuccessful in his challenge based on the principle of Locus Standi. Nevertheless, the case remains the locus classicus on the issue of Locus standi both for the brilliant exposition of the court's attitude to giving Citizens access to jurisdiction in constitutional matters, which ironically was not followed in the court's final decision, and the restrictive interpretation of Locus Standi which still remains the general principle deviated from by the court only in exceptional instances.
The period following the annulment of the nation's freest and fairest election on the 12th of June 1993 by military president Gen. Ibrahim Babangida gave rise to a chain of negative events such as the Constitutional contraption called Interim Government led Chief Ernest Shonekan, the voiding of that Government by the court judgment of Justice Dolapo Akinsanya and the topping of that government by Gen. Sani Abacha. All of which culminated in the incarceration of Chief Moshood Abiola, the winner of the June 12, 1993 elections, for attempting to claim his electoral mandate. The Gen. Abacha leadership had taken on every segment of society that dared to lend
support to the late Chief Abiola in his quest to claim his electoral mandate. It was in that difficult political climate that the National Democratic Coalition NADECO was formed, with Pa Adesanya as one of this its chieftains. Gen. Abacha launched a yet to be equaled policy of brutality and repressions on NADECO and its leaders with many of NADECO's leaders killed and several others fleeing into exile for dear life. Not only did Pa Adesanya stay back in Nigeria to fight the Abacha government to a stands till but when the late dictator sent his best guns to silence the great man he escaped from the murderous attack in circumstances that will remain both miraculous and mysterious for all times.
With the establishment of civil rule in 1999, Pa Adesanya became the leader of the Egbe Afenifere which in turn gave birth to the once vibrant Alliance for Democracy, A.D), once the most progressive party of the third republic.
An authentic leader of the Yoruba race, he assumed the mantle of leadership of the race with the demise of pa Adekunle Ajasin during the heady days of NADECO struggle against military dictatorship and repression. He was to hold this foremost leadership position of the race until he formally relinquished the role due to old age and failing health a few years ago to Chief Reuben Fasoranti.
Pa Abraham Adesanya was without doubt a great lawyer, an astute politician and a genuine leader of the Yoruba race.
The nation's tears had not in fact dried when the sudden and shocking departure of the nation's first female professor of law. Prof. Jadesola Akande, OFR, FNIALS, in her sleep was announced. An erudite scholar and eminent jurist, a first rate academic of several distinctions. First female PhD holder in law from the Prestigious University of London in the U.K. First female substantial Dean of a faculty of law. First female Professor of law. First female vice-chancellor of the Lagos State University LASU and Second female Vice-Chancellor of a Nigerian University, coming after only the pace-setting Prof. Grace Alele-Williams who is the First Nigerian female professor and first female vice-chancellor of the University of Benin.
Prof. Jadesola Akande, nee Esan, was a lawyer, wife of a lawyer, late Chief Debo Akande SAN and mother of a lawyer. Justice A. J. Coker of the Lagos State High Court. She was the author of the classis legal text Introduction to the Nigerian Constitution, which has since its publication in 1981 helped a whole generation of lawyers including this columnist get through the very wide and historical yet compulsory constitutional law.
Prof. Akande was not only a brilliant legal scholar but also a very objective commentator on legal/political issues. For example when several legal scholars got carried away in anger by the rapacious disposition of many of our Executives at Federal and State levels in plundering national resources for personal aggrandizement and had called for the immediate removal of the immunity clause under section 308 of the Constitution. She had while calling for caution on the amendment of the constitution based on present exigencies, summarized the whole idea of sovereign immunity in one short but lucid allegory "when we are in power we are gods and kings, but when we leave office we shall be called to answer for our acts".
The on-going trial of several former executive office holders, even though not comprehensive or serious enough, is clear testimony to the superiority of Prof. Akande's thesis that the problem is not with section 308 as it presently stands but the political will to follow thought the provision to its logical conclusion.
The sense in which the late Prof. Akande's sudden departure represents a major loss to many in the legal profession is that it has generally been believed that with her indelible contribution to the law and the training of lawyers in Nigeria, it was only a matter of time before she took her rightful place in the Inner Bar as a distinguished Academic silk. But alas, that was not to be; man proposes, God disposes.
Nevertheless, she made her mark in life not only as a great jurist, but also as a defender of the rights of the oppressed like widows, rural women and indeed the women folk in general.
Hers certainly was a life devoted to the best ideals of society and humanity and in her death the Nigerian nation lost a great patriot.
While the nation mourns at the sad loss of these illustrious ones we can take solace in their indelible legacies of excellence.
Monday, April 28, 2008
'Ensuring the Departure of Merit: NBA's rotation and selection policies
ENSURING THE DEPARTURE OF MERIT: NBA'S ROTATION AND SELECTION POLICIES. By Prof. Ademola A. Adewale
The Nigeria Bar Association, NBA is arguably the nation's most influential and respected professional association particularly in this era of Civilian Democracy when we are daily confronted with one constitutional issue or the other requiring legal advice or solution. Indeed, the profile of the legal profession in Nigeria has never been higher and every fresh national debate only serves to reinforce this elevated status.
However, as is usual in life, with this privileged position comes responsibilities and duties, chief amongst which is to provide leadership on a consistent basis for the nation particularly in times of national crises. One of the nation's most recurrent debates has been the controversial and divisive issue of Federal Character. Federal character which is a constitutional provision under Section 14 (3) of the constitution is a policy of Government which ensures equitable (not necessarily equal) representation of all sections of the nation in all areas of national life.
Historically, the policy had patriotic and genuine origins as the glaring inequalities in virtually every area of national life amongst the various ethnic groups and regions of me time inspired the nation's leaders at the time to put in place a policy that will ensure national unity and integration such that every part of the court feels a sense of belonging in the nation and no section dominates the other or others in national life. Regrettably from this nationalistic philosophy have sprung so much ill feeling and discontent. Why? The misapplication and abuse of the Federal Character principle in our national lives; from school admission, to appointments and elections into public office and national awards. So much so that what should be a rallying cry to oneness as a nation is now synonymous with mediocrity and incompetence. Happily, the twin -arms of the profession, the Bench and the Bar, have till date been spared the negative effects of the abuse of the Federal Character police.
Admission into the profession is entirely on merit, elevation to the Bench and promotion at the Bench is by and large, on merit, the elevation to the privilege status of the inner Bar is primarily on merit. So the Federal Character principle, hardly gets a mention neither does it generate controversy within the legal profession. In fact a look at the composition of the top hierarchy of the Bench and Bar from the Supreme Court, to the National Judicial Council, the Body of Benchers, Council of Legal Education and the National Executive Committee, NEC of the N.B.A shows the right balance of the coveted merit and the much desired Federal Character Principle in operation.
In particular reference to the N.B.A in the last half a century, the leadership of the N.B.A has for the most part been balanced and varied even during the ages when it was believed that certain sections of the nation "dominated" the legal profession. One must hasten to add however, that certain parts of the nation due to cultural and historical reasons who were slow to take to take to the profession were conspicuously absent in all areas of the profession in the early days. But they have since taken their rightful place throughout the rank and file of the legal profession and in several areas outpaced the earlier entrants into the profession.
A list of N.B.A president from 1959 till date.
1. Alhaji Jibril Martin - 1959
2. Chief F.R.A. Williams SAN - 1959-1968
3. Peter Thomas - 1968-1969
4. Chief G.M. Boyo - 1969-1970
5. Chief R.O.Akinjide SAN - 1970-1973
6. Chief Adebayo Ogunsanya SAN- 1973-1974
7. Dr. Mudiaga Odje SAN - 1974-1976
8. Dr. Nwakanma Okoro SAN - 1976-1978
9. Chief B. 0. Benson SAN - 1978-1980
10. Chief Adetunji Fadairo SAN - 1980-1982
11. A.N. Anyamene SAN - 1982-1984
12. Prince Bola Ajibola SAN - 1984-1985
13. Ebede Nwokoye Esq - 1987-1989
14. Alao Aka Bashorun - 1987-1989
15. Mr. Charles Idehen- 1989-1991
16. Sir Clement Akpamgbo SAN - 1991-1992
17. Mrs. Priscilla Kuye - 1992-
18. Chief T. J. O. Okpoko SAN - 1998-2000
19. Chief O.CJ. Okocha SAN - 2000-2002
20. Chief Wole Olanipekun SAN - 2002-2004
21. Chief Bayo Ojo SAN - 2004-2005
22. Mr. Lanke Odogiyan - 2005-2006
23. Chief Olosa Agbakoba SAN - 2006 till date
However, the national/federal outlook of the N.BA is now under serious threat from irredentist, and tribalists parading themselves as "nationalists" who want the N.BA to reflect 'federal character" as in every other thing Nigerian. Curiously this rotation principle which gained ground from around 2002 has already boomeranged twice even within the few years of its emergence. In the 2004 election that was zoned to the North-central zone, one of the leading candidates at the time was Chief Bayo Ojo SAN, a Yoruba "northerner" who was to emerge president at the 2004 Annual Bar Election. The same Chief Ojo SAN was to jump ship to the embarrassment of many to become Federal Attorney-General. His abdication was to raise yet another debacle, the emergence of another Yoruba with practice in the North-Central as representative of the North-Central Zone in the person of Prince Lanke Odogiyan.
This is all courtesy of the "Federal Character" touted to make the N.B.A. more national. Even, the emergence of the present N.BA President, Mr. Olisa Agbakoba SAN which in all the circumstances was well deserved, had the taint of a Zonal/tribal victory since one of the candidates at the election was from a "disfavoured' Zone and almost harassed out of the race for going against the rotation formula. So much for the rotation principle.
Yet another reason that has been canvassed for the new fanged rotation principle, is the desire to de-monetise NBA politics. The claim is that making the NBA National Elections an all comers- affair increases the risk of highly monetising the process. But can anyone say in good conscience that without prejudice to the emergence of deserving candidates, that money was not an issue in the last 2 or 3 NBA National Elections?
The tacit admission of the increased role of money in NBA elections has now given rise to yet another policy; the policy of selection. The logic here is simple and straight forward, since elections give rise to spending of money, eliminate elections and let the favoured zone select or is it anoint the president to be and the problem of money politics would have been effectively dealt with once and for all. The error inherent in this argument is the refusal to acknowledge the natural leadership expected of lawyers in matters and democracy and rule of law. Nigeria as a nation has had more than her fair share of military rule and dictatorship. But even in those dark days, the legal profession was in the Vanguard of the movement for democracy. Even now that there is some form of democracy and civil rule, the leadership and direction of the twin arms of the profession through the courts and the Bar is regular sought for the enthronement of genuine and true democracy in the land. What now happens when the leadership of the Bar goes the way of directorship by the imposition of candidates, would will still remain the moral high ground to pontificate and sermonize on democracy and rule of law after the biblical fashion of physician heal thyself or as We lawyer are wont to say Nemo dat quod non habet; a man cannot give what he does not have?
Ironically, recently the nation's ruling party, the Peoples Democratic Party, PDP, at its National Convention resorted to selecting consensus candidates as opposed to the more transparent and participatory delegates election, an act which was roundly condemned by a cross section of Nigerians particularly lawyers, is the NBA now to go the PDP way? Across the Atlantic, many of us having been following closely the ongoing primaries of the Democratic Party in the United States. We look forward to a re-enactment of the like in Nigeria, with the NBA in the forefront of such local experience. Nigerians complain at the almost complete absence of internal democracy in all the registered parties, such a feat will be almost impossible to achieve if the NBA that is supposed to show the way forward joins the league of organizations lacking in internal democracy- Here it might be the appropriate to recall that the beginning of the end of the Alliance for Democracy AD, which many people believed would midwife genuine democratic practice in Nigeria, when civil rule was institute in 1999, started when its first. Presidential candidate emerged in less than democratic settings.
May the NBA not go the same way in Jesus name Amen.
Suggestions: To retain its rightful place as the bastion of democracy in Nigeria, the NBA should immediately jettison the rotation principle; let every National office including the presidency of the NBA be open to all qualified and eligible lawyers from all parts of the country in a free and fair delegates election.
The emphasis on the Inner Bar membership as a qualification for eligibility to run for the NBA presidency should be discontinued. Recall the election of Aka-Bashorun against Chief Ladosu Ladapo SAN. The result of that titanic Bar election battle together with the great strides made by the Alao-Aka Bashorun led NBA is of course still fresh in our memory for all to ponder upon. And when Chief Bayo Ojo SAN jumped ship to take up political office, it took Prince Lanke Odogiyan yet not a Silk, to manoveuvre the affairs of the NBA to a successful berth.
Most importantly, the leadership of the NBA must resist the great temptation of instituting a no-contest policy for the presidency of the NBA. While it might have worked admirably for other professionals, by our unique role as the custodians of the best traditions of democracy, we can ill- afford a policy that makes us impotent to provide the much sought leadership in matters of democracy and participatory government.
Thursday, March 6, 2008
'Yar Adua vs. Buhari & Atiku...' By Ademola Adewale
THE PROFESSOR’S PODIUM
YARADUA VS. BUHARI & ATIKU:
THE JUDICIARY IN THE EYE OF THE STORM.
The Judiciary has been in the limelight in recent times, thankfully for all the right reasons, severally saving the nation from the brink of destruction and at other times checking the excesses of an imperial presidency, many times restoring the hope of the citizenry in an highly troubled nation.
Tuesday, the 26th February, 2008 aptly doubled Super Tuesday by the GUARDIAN in the manner of the American political Culture was one of those momentous occasions. The issue at hand was of course clear to all, the Legal validity of the electoral victory of President Umar Musa Yar’adua, generally believed to be the beneficiary of the most flawed elections in the nations political history. The build up to the day was most interesting; following from the highly controversial and most contentious 2007 General Elections, which were berated both locally and internationally as not meeting the most basic standards of participatory democracy; in fact several persons both in Nigeria and outside have wondered how the country has not experienced the worst type of post-election violence, Kenya-type, a feat many attribute to prayerful religious culture of Nigerians.
Several electoral Victories declared by the Independent Electoral Commission (INEC), had been nullified and set aside in the months and weeks after the April General Elections. The first casualty of this Judicial activism that followed upon the flawed elections was Andy Uba of Anambra state, whose election was declared a nullity as the court declared that there was no vacancy as at the time INEC conducted elections into the Anambra State Governor's office, so Governor Peter Obi, who took 3 years to retrieve his mandate stolen in 2003 elections was promptly returned to office. Then following in quick succession, perhaps not in any particular order, were the nullification of the election of Governor Ibrahim Idris of Kogi State, the nullification of the declared victory of Governor Celestine Omehia of Rivers State in favour of Rotimi Amaechi who won the Peoples Democratic Party, PDP primaries Governor Sullivan Chime of Enugu State also suffered the same fate, Governors Murtala Nyako of Adamawa and Saidu Usman Dankingari of Kebbi also tasted the bitter pill of election nullification. In the National Assembly, there was a long list of nullifications of electoral victories, the most celebrated being that of Senate President, David Mark almost at the Eve of the decision of the Presidential Election Tribunal and Senators George Akume of Benue North West and Ayogu Eze, Enugu North.
Almost all these election nullifications were against the ruling PDP, the self-styled biggest party in Africa. In the prevailing atmosphere of Judicial nullification, the prevalent opinion was that the presidential election was doomed for nullification and even highly respected legal scholar and otherwise objective jurist Prof Itse Sagay SAN permitted himself the rare indulgence of opining that the Presidential election will most likely be nullified.
The nullification of the Abia State Governor's election at the very eve of the judgment day merely reinforced this generally held opinion. As is usual in life, there were a few pockets of dissent like the lawyer quoted on Channels TV as saying that "Law is not mathematics and that none of the Parties can say categorically, that he will win and his opponent fail. That the end of the day anything can happen" I am also obliged to put on record the views of the Editor -in - Chief of the Squib Magazine, even though sharing the general sentiments of nullification in the early hours of judgment day cautioned that at the end of the day the outcome of the case may have nothing to do with the general sentiments but good old-fashioned advocacy at which the President's lead Counsel, Chief Wole Olanipekun SAN is a Master. How prophetic the minority have turned out to be. But as at the morning of verdict day, the few who gave the president any chance of success anchored their submission mainly on the nebulous ground of social stability peace and order that the Judiciary at the end of the day will not wish to give a verdict that might throw the whole nation into chaos and give fifth columnist opportunity to strike. A few people like this columnist who held this view, however did so, tongue - in - cheek; a weak rationalization for the improbable.
In the run-up to the Verdict even the Presidential Elections Tribunal Constituted by the Court of Appeal tacitly conceded the great Public interest in the matter by allowing public transmission Live of the tribunal's Judgment, so the stage was set for the nations, not just the president's Judgment
Then came the hour at 10:00am on Tuesday the 25th February 2008, in a judgment which took over 3 hours to deliver, the Justices of the Presidential Election Tribunal consisting of Justice Afolabi Fabiyi who delivered the lead judgment, Justices Raphael Chikwe Agbo, Abubakar Abdulkadir Jega, Umani Abaji and Justice James Ogenyi Ogebe recently elevated to the Supreme Court
The Tribunal looked at the various legal issues raised and held amongst other things that; -
i Substantial Non compliance was not proved by the petitioner. This has been a hard nut to crack since Awolowo V. Shagari (1979) 6-9. Sc, 37 Falae Vs. Obasanjo. (1999) NWLR (pt 606) Buhari V Obasanjo (2007) 7 Sc. (pt 1).
ii. Various allegations of malpractices were not proved Nwobodo Vs. Onoh (1984) SCNLR 1 Omoboriowo Vs. Ajasin (1984) SCNLR 108
iii. The Irregularities proved were not so substantial to affect the outcome of election.
iv. In the Case of Alhaji Abubakar Atiku; he could not combine his claim of exclusion with that of irregularity.
v. Several of the documents tendered by the petitioners were inadmissible under the Electoral Act, Practice Directions, even the Evidence Act.
In other words, it was a decision based squarely on law and procedure presumably also on good old fashioned lawyering (advocacy) as a few had suggested before the judgment. This "straight and narrow" approach surprised if not disappointed many who were expecting a judgment sensitive to public expectations: which expectations one may ask the victorious party or the petitioners?.
Naturally, there has been out pouring of emotions on both sides, the victorious party praising the judiciary and the judgment to high heavens, (the President though was magnanimous in victory) the opposition denouncing the judiciary in no uncertain terms. Even Very Senior Lawyers who ought normally to restrict themselves to their professional calling of preparing Appeal papers for their dissatisfied clients, found the emotionalism of the occasion irresistible to throw verbal jibes at the Justices of the Appeal Tribunal casting unbecoming aspersions at the judicial officers who by virtue of their office have no right of reply.
It appears that for some Counsel the constitutional right of appeal to the Supreme Court is not enough to ventilate their client grievances, which is quite unfortunate.
The better approach would have been to proceed promptly on appeal as instructed by their clients with all the legal weaponry at their disposal rather than instigate an unwary public against a decision of a competent court of records which is valid until set aside on appeal. This is the least expected of Ministers in the temple of justice.
Anyway, the battle has now rightly shifted to the final court in the land, where the human oracles of the law have the Olympian and unenviable task of deciding this most volatile and sensitive of cases. To their Lordships of the Supreme Court, we pray for the great wisdom of Solomon and Daniel combined as the whole nations waits on their lordships. In the mean time, while we wait for the appeal to run its normal course, can we all get along with the decision of the Court of Appeal Presidential Election Tribunal
Ademola A. Adewale Esq.
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