RIGHTS OF A SUSPECT/PERSON WHEN ACCUSED OF A CRIME

1. The presumption of innocence
Under section 36(5) of the 1999 Constitution every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Also, section 138(1) of the Evidence Act provides for proof beyond reasonable doubt in respect of any allegation of commission of an offence against the person accused of a crime. The rationale for these legal principles cannot be over-stressed when juxtaposed with the undeniable reality of the fallibility of our criminal justice system, borne out of snippets of shortcomings, prejudices and procedural irregularities associated with criminal justice administration, in Nigeria.

In view of the above constitutionally guaranteed right of the citizen, any person who is accused of an offence is entitled to be presumed innocent of the allegation until the contrary is proved. Therefore he should be treated not as an offender or criminal even before trial, but as a citizen whose rights are fully preserved and protected by law. Such rights are not by any stretch of conjecture or imagination, whittled down by the fact of his arrest or interrogation in connection with an offence. See the dictum of Kairibi Whyte JSC, (as he then was) in Adeyemi v. The State.

It is saddening to observe clear violations of this right by law enforcement agents who subject suspects and accused persons to unconscionable brutalities and victimization in the process of arrest and interrogations. Sometimes these agents deny the accused persons access to their fundamental rights, as guaranteed for them under the Constitution as innocent persons until proven guilty by a court of competent jurisdiction.

This illegal and highly prejudicial practice must be penalized by the court, to serve as deterrents to others. Culprits should be appropriately sanctioned, in accordance with the provisions of section 36(6) of the Constitution. This section makes provisions for the payment of compensation and public apology from the appropriate authority or person, to any person who is unlawfully arrested or detained by over zealous law enforcement agents.

2. Right of silence when accused of a crime
Section 35(2) of the 1999 Constitution states that any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice. In addition, section 35(11) of (he same Constitution provides that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. It is the fundamental right of every citizen who is arrested or detained in connection with an allegation of crime, to remain silent or not to answer any questions put to him until he obtains the services of a lawyer or any other person of his choice.

This right of silence, usually incorporated into the police charge sheet and statement forms, but hardly explained to suspects, transcends access to counsel or a person of his choice, to cover post-consultation periods. He is entitled, by law. to still remain silent and not answer questions posed to him by the police or other authorized persons, having no duty in law to prove his innocence in law.

The crux of this right is the necessity to protect a person from self- incrimination before a charge is formally preferred against him. It also gives fillip to the other kindred rights of presumption of innocence preserved under section 36(5) of the Constitution, which places the burden of proof of an offence on the prosecution beyond reasonable doubt and the failure of which the accused is entitled to an acquittal, either suo motu or on the application of his counsel pursuant to section 286oftheCPA.

Over time conscious efforts have been made by civilized societies to protect and preserve the inalienable rights of accused persons to presumption of innocence. One of such efforts was the development of a body of rules governing procedure for obtaining statements and interrogation of suspects under the common law criminal justice system. This body of rules was appropriately called "The Judges Rules."

The Judges Rules was adopted and affirmed by an American court, in the case of Miranda vs. Arizona The gravamen of the right otherwise known as "Miranda right," is that a suspect has a right not to be compelled to talk and any statement obtained from him during interrogation cannot be used against him in his trial unless there is proof that the suspect fully understood that:
(a) He had the right to remain silent.
(b) That anything said by him could be used against him in court.
(c) That he had a right of access to an attorney of his own choice, both at the police station and elsewhere.

An accused person in the process of interrogation by the police or other authorized agents must insist on consulting a legal practitioner before volunteering any statement. Once he does that should halt any further action by the police against him. The Judges Rules is a procedure well received and affirmed by our courts, as a guide to determining the propriety or otherwise of statements obtained from suspects during police interrogations.

In Oyegbemi v. The Attorney General of the Federation, an article titled, Armed Robbers Kill 2 Persons, published by the Daily Sketch Newspaper (now defunct) was considered false and offensive. The Editor was then arrested. During interrogations he refused to disclose his source of information and as a result he was charged with the offence of conspiracy to commit felony.

The court at the end of trial, in apparent deference to the Judges Rules, held that a person who is arrested or detained by the police as suspect in respect of an offence is entitled to remain silent when confronted with the offence and is not obliged to make any statement at all. He can remain silent or mute in exercise of his fundamental rights guaranteed to every citizen whether he is a journalist or not.

3. Right to make voluntary statement
An adjunct to the right of slience discussed above is the kindred right of the suspect to make statement as a matter of choice not by compulsion or under force of coercion or duress, when being confronted with allegation of commission of an offence. The Judges Rules have made ample provisions to guide the police in their interrogations and investigation of crimes, including, the legitimate ways and means of obtaining statements from suspects.

For any statement to be valid under these rules, it must be obtained under caution, with prior notification to the suspect of its implications as well as his right not to make the statement, if he so wished. It must also be made voluntarily by the suspect, and in the course of such a voluntary statement the suspect should not be asked questions or cross examined by the police, such as to extract unfavourable information from him except to clear any ambiguities in his statement, if any.

Of particular significance is Rule 8 of the Judges Rules, which provides that, when two or more persons are charged with the same offence and statements are' taken separately from them, the police should not read their statements to their co-accused persons, but each of such persons should be given a copy of such statements to read, without being prodded for any response, by the police.

In Saidu v. The State, the Supreme Court in apparent deference to the rules held that no statement by an accused person is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement without which proof the statement is inadmissible as evidence against the maker.

Perhaps it is pertinent to note that the fact that a statement was not obtained in absolute compliance with the above rules does not automatically render the said statement inadmissible. It may still be admitted where the court is satisfied that it had in fact been voluntary and properly obtained. See R v. Jackson Akpan.

Under section 28 of the Evidence Act, Laws of the Federation, 1990;

"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature."

By virtue of section139(1)(a) of the same Evidence Act, the burden of proving that a confessional statement was duly obtained in compliance with requirements under section 28 rests on the prosecution and not on the accused person. However, whereas a person can rightfully confess to his own acts, knowledge or omissions, he cannot equally confess as to the acts of another which he had not seen and of which he can only have knowledge by hearsay. Failure of the prosecution to prove an essential element of the offence cannot be cured by an admission of the kind. See Surujpaul vs. The Queen where a conviction obtained based on the confessional statement of an accessory, which implicated the alleged principal offender, was quashed on appeal, on the ground that such plea of guilt by the accessory should not have been accepted as basis for convicting the principal party to the crime prior to establishing the guilt of the said principal offender.

In line with the usual requirements of valid statements to the police, for a confessional statement to be admissible it must not only be voluntary but it must also be free. A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. That situation hardly arises, since confessional statements are usually subjected to proper scrutiny, first by the police, and then by the before being accepted or rejected.

In Emeka v. The State, the Supreme Court held that a free and voluntary confession by a person, if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction, even though it is desirable to have outside the accused person's confession to the police some evidence, however slight, of the circumstances which make it more probable that the confession was true.

Where an accused person in the course of his trial challenges the admission of his confessional statement, on grounds of having been obtained from him not voluntarily but by duress or threat by the police at the time of interrogation, the court does not automatically disqualify the statement as being inadmissible. The Court may proceed to set up special enquiry to test the veracity of the accused person's claim, against the propriety of the mode of obtaining the piece of evidence vide facts and circumstances of the case before it.

This special trial is known in legal circles as, Trial within a Trial. In this trial, the sole issue for determination before the court is the voluntariness or otherwise of the disputed statement. The voluntariness of the evidence must be ascertained before trial in the main charge can resume. Section 139(1)(a) of the Evidence Act imposes the duty on the prosecution to prove voluntariness by credible and substantial evidence, and to contradict the accused person's allegation of having been forced to make the statement.

At the end of the special trial, it will be left to the court to decide whether the allegation of involuntariness of confession had been proved or not, and whatever decision it arrives at is taken as final.

It should be pointed out that the above procedure must be strictly adhered to by the courts. Any breach for deviation from it, will be fatal to the case of the prosecution, if made a ground of Appeal, in case of a conviction based on such disputed piece of evidence. The duty of the court where the accused person challenges the voluntariness of his confessional statement has been well spelt out, in the decision of the Supreme Court in Emeka v. The State thus:

"When an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty-of the court to test the confession by conducting a trial within g trial in order to determine whether in fact the statement was voluntarily made. Failure of the trial court to do so renders the statement inadmissible and all evidence admitted by virtue of the statement would be expunged." See also Obidiozor v. The State.

The onus of proof of voluntariness of confessional statement lies on the prosecution. He must also prove" beyond reasonable doubt that'' the confessional statement made by the accused person was free and voluntary. For the evidence of a confession to be admissible the trial court must be satisfied, on the basis of the totality of evidence led in the trial within trial, that the prosecution proved that the confessional statement was voluntary. See Emeka v. The State.

4. Right to be promptly informed of the offence against him
Generally, a person who is accused of an offence must be informed in the language he understands, the true grounds and reasons for his arrest. This proposition is in line with section 35(3) of the 1999 Constitution, which provides that; " Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in the language he understands) of the facts and grounds for his arrest."

It is obvious from this provision of the Constitution that any police officer or other authorized agent who effects an arrest of a person, whether with a warrant of arrest or not, must duly and promptly inform the person of the reason for his arrest. This information must be conveyed to him in the language he understands.

The purpose of this enactment is to provide the suspect with the earliest opportunity within which to respond properly and adequately to the allegation through counsel of his own choice. It will also protect his rights from wanton abuse and intimidation by overzealous and vindictive law enforcement agents, who take undue advantage of their position to humiliate and maltreat innocent citizens, either to settle private cores or at the behest and instigation of business associates or envious competitors.

A suspect or an accused person, who enjoys equal status by virtue of the presumption of innocence in his favour, like every other citizen, is entitled to know what charge or on suspicion of what crime he is being arrested and detained.

Where an accused person is not informed the grounds of his arrest and the police still goes ahead to detain him, the police officer concerned is liable for false imprisonment under the law. He would be bound to pay appropriate compensation to the victim, upon conviction by the court.

Viscount Simon in Christy vs. Leachinsky, had restated the guiding principles to ensure proper communication between the police and the suspect during an arrest as follows:

(a) "If a policeman arrests without warrant upon reasonable suspicion of felony or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(b) If the citizen is not so informed but is nevertheless seized, the policeman apart from certain exceptions is liable for false imprisonment.

(c) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained"

However, the above guidelines which are of persuasive authority, in our shores, are definitely not exhaustive, as each case will be viewed within the prisms of its own peculiar and special circumstances.

(5) Right to contact his lawyer, or any other person of his choice, before yielding to police arrest

Any person suspected or accused of committing a crime is entitled to per-interrogation rights, under the law, by virtue of section 35(2) of the Constitution. That section provides that "Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice."

The implication of the foregoing is that every suspect is guaranteed a pre-interrogation right to counsel and therefore the police and other interrogators are legally bound, not only to inform suspects of this right, at the time of his arrest, but also to fully avail him access to his counsel at every point of the interrogation. Unfortunately, most police interrogations are conducted in violation of this right, as the rules are usually observed more in breach than in compliance.

According to Niki Tobi JSC, "In practice, police and other law enforcement agents, detest and resist, consultations between suspect and counsel whether before, or during interrogations."

In most cases these police interrogators employ all sorts of intimidation, torture and undue influence to extract confessional statements from suspects, who are usually interrogated in the absence of their counsel.

This right which is a basic and fundamental constitutional entitlement of all citizens, remain the most crucial, as it is the fulcrum upon which other rights revolve. This underscored by its centrality as a gate way to the realistic exercise of all other rights of the citizen.

THE HISTORY AND LAW OF POLITICAL CARPET-CROSSING IN NIGERIA By Ademola Adewale

Carpet-Crossing by Nigerian politicians is not a new phenomenon but one that has been with us as a nation since the first republic in the decade leading to independence of Nigeria as a sovereign nation.

The first recorded incident of carpet-crossing was in 1951 in the defunct Western Region House of Assembly when several members of the now defunct NCNC, National Counsel of Nigeria and Cameroon led by the Great Zik of Africa, Dr. Nnamdi Azikiwe overnight decamped to the old AG, Action Group led by Great Sage Chief Obafemi Awolowo SAN, to deny the former majority in the Western Region House of Assembly, which led to the AG forming the Government in the defunct region and Dr. Azikiwe beating a tactical relevant to his native Eastern Region to form the ruling Government, It is instructive to note that this singular political event was to lead to permanent mistrust not only between the two great and illustrious nationalists Awolowo and Azikiwe, but even to their kinsmen which mutual feeling still persists.

In the 2nd Republic between 1979-1983, there were a number of high profile carpet crossings, prominent amongst which were: the Carpet Crossing by Chief Akin Omoboriowo from UPN, Unity Party of Nigeria led by Chief Awolowo to NPN National Party of Nigeria, NPN, the Carpet crossing by Chief Fagbamigbe also of former Ondo State from UPN to NPN.

The same for late Senator Lai Joseph from Old Oyo State from UPN to NPN. In the 2nd republic Senate there was also the defection of Senator N.N. Anah SAN of the defunct Nigeria Peoples Party NPP to NPN. In the second republic many of these defections were to have violent and even tragic consequences such as the 1983 election Crisis in former Ondo State when notable publisher Chief Fagbamigbe was hacked to death and Chief Akin Omoboriowo, former Deputy Governor Old Ondo State Chief Akin Omoboriowo only escaped death with the strong backing of the "Federal Might" even then he had to relocate to Lagos.

Defections in the present dispensation which started in 1999 have been more than a handful although with less dramatic results in comparison to the second republic. The only Carpet Crossing that has drawn much flak is that of the former Vice President, Alhaji Atiku Abubakar whose defection in the midst of his political battles with his erstwhile boss Chief Olusegun Obasanjo was the subject matter of several Supreme Court decisions prominent amongst which was the case of AG FEDERATION V ATIKU ABUBAKAR (2007) 4 S. C. (PT, 11) 62 which decision we shall examine in greater detail subsequently.

The list of prominent defectors includes Senator Wahab Dosummu from Alliance for Democracy AD to Peoples Democratic Party, PDP, Senator Musuliu Obanikoro from AD to PDP, Dr Kingsley Ogunlewe from AD to PDP, Late Funsho Williams for AD to PDP, Former Governors Bola Tinubu, Lam Adesina, Bisi Akande from AD to AC Action Congress, Former Vice President Alhaji Atiku Abubakar from PDP to AC and Governor Segun Mimiko for PDP, to Labour party, amongst others. While some of these cross-carpeting were roundly condemned particularly the defection from the smaller parties like AD or AC to PDP, the defections from the PDP to smaller parties or of progressive from either PDP to the smaller parties, or from one party to the other were greeted with much approval and celebrations. It is usual amongst the nation's progressives and their supporters to denounce carpet crossers in the strongest terms possible as political prostitutes and opportunists who do not have the interest of the electorate at heart but their own selfish interests but the progressives themselves having been caught up in the recent wave of defections it no longer lies in their mouth to freely sermonize on the ills of carpet crossing. In the build up to the 2007 dictions there was wholesale defection of progressive from the otherwise progressive AD to form a new party Action Congress AC, with no ideological basis for the shift except positioning to capture power which is however legitimate. However the progressive having carried on for long as if all defections were evil, it did the reputation of the progressives constituency, no good that they could engage in large scale defection on a scale even their opponents would have been embarrassed to manifest.

Nigerian politicians carpet-cross for a number of reasons:
• To have better access to power and the spoils of office.
• To escape political oppression and persecution.
• As a result of a breakdown in the aims and objectives amongst the founding fathers of a party.
• As a tactical and strategic political retreat to re-launch a political agenda on another platform.
• For ideological reasons, when the initial platform has derailed from the ideals which inspired like minds to join the party and bring to bear these lofty ideals in the service of the people. Defection based on this ideal are few and far between in Nigeria.

The Nigerian situation is in sharp contrast to the practice in the more established democracies like USA or Britain. In the USA generations of families vote and belong to one party and it is seen as political apostasy for a member of a party to carpet-cross to the other party; imagine a member of the Kennedy family becoming a Republican or a member of the Bush family becoming a Democrat or even a Clinton becoming a Republican, that will cause political earth-quake. The same attitude prevail in Britain imagine a Labour Member of Parliament MP defecting to the Conservative (Tory) party or Vice versa.

This consistent attitude of leaders is replicated amongst voters; it is commonplace for a man and his family to vote a particular party for years voting for the opposing parties only in extreme case. Even whole cities and States follow the same pattern. In the recent US Presidential race, it took a extra-ordinary candidate like Barack Obama for many US states like Florida, Texas and California who vote mainly Republican to vote for a Democratic Obama.

All these ideological consistency have no relevance to Nigeria, our political leaders change parties at will according to their present needs and fancy, some of our leaders under the present dispensation have changed parties more than 3 times in less than 10 years. The President's Son-in-law the Governor of Bauchi State Alhaji Yisa Buguda is a classic illustration of this rolling stone tendency.

A number of reasons have been adduced for this fair weather attitude to politics the most reasonable being the lack of ideological base by most Nigerian parties, for the most part there is no ideological difference between Nigerian parties, even parties that make a big show of being radical and progressive when it comes to the nitty-gritty show a lack of understanding of the basic tenets of democracy absence of free and fair primaries; imposition of candidates, lack of internal democracy and transparency. The Saving gace for a handful of credible parties is the presence of a few visionary leaders who come to personify the parties and whose exemplary leadership above the general rot is extrapolated to give the impression that the whole party is progressive and forward looking whereas the differences between the parties if any is more cosmetic than substantive, more like the difference between six and a half-dozen. Example which major Nigerian party since 1999 has been free of internal crises, leadership tussle and Carpet-Crossing, not PDP, not AD, not ANPP All Nigeria Peoples Party, not even the AC which emerged from the crises in AD. What varies is simply the magnitude of the crisis. A few scholars put this lack of ideological difference down to the fact that the 3 initial parties, which kicked off the 3rd Republic had their manifestoes (i.e. the AD, PDP and ANPP) prepared by the one and same person the late Chief Bola Ige SAN, the former Attorney – General of me Federation. Even if this were true how come none of die parties has developed a major ideological base outside of its few shining stars 10 years on?

The Law on Carpet Crossing
While me general view of most Nigerians is that Carpet crossing from one party to the other is immoral and shows the politician concerned as being more interested in his personal gains rather than service to the people he is elected to serve or who elected him to represent and serve them. Beyond the general opinion it is important to know me correct position under the law: under the 1999 Constitution: a member of the Senate or House of Representatives is liable to vacate his seat under section 68 (1) (g) of the Constitution "being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which the House was elected".

"Provided that his membership of the later political party is not as a result of a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one of which he was previously sponsored".

This provision is replicated in the case of members of the states House of Assembly in section 109 (1) (g).
However, in respect of members of the Executive at both Federal and State levels that is the President, Vice President, Governor and Deputy Governors the Constitution is remarkably silent.

The legality of cross carpeting at both arms of government that is the Legislative and Executive arms of government was determined by the Supreme Court in the celebrated case of AG FEDERATION V ATIKU ABUBAKAR (2007) 4 SC (PT. 11) 62, which case amongst other things determined the legality of the defection of Alhaji Atiku Abubakar the former Vice President from the PDP under which he was elected to the AC in me thick of his battle for political survival against his former boss erstwhile President Olusegun Obasanjo and his party PDP who were bent on teaching him a very hard lesson for standing against the party's decision to support the former Presidents for a 3rd term. The Presidency had in fact conjured up allegations of corruption (the truth of which we may never know) to be used to remove him from office. Alhaji Abubakar's decision to defect from the PDP to the then newly formed only provided ammunition with which to nail the embattled former Vice President. However, the attempt to use the constitution to declare the office of the Vice President vacant upon me carpet crossing of Alhaji Atiku Abubakar failed woefully as the Supreme Court held that "the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later on being a member of the senate or of the House of Representatives (and by extension the House of Assembly) defects to another political party, he is deemed in law to have automatically vacated his seat in the House of which he is a member" (Supra page 242) (Addition made) However, the apex court continued "No similar provision was made/or the Vice President even for the President If the legislators had intended the Vice President or even the President to suffer the same fate, they would have asserted that provision in clear terms" at 243. The absence of clear provisions also applies to the offices of Governor and Deputy Governor.

The Supreme Court was very mindful of the lacuna in the constitution concerning defections from one party to another by members of the Executive, the President, Vice President, Governor and Deputy Governor and the evils associated with same. At 211 (supra) “Although defection or cross-carpeting to another party or dumping the original party that sponsored one for election to a particular office" which is created by the constitution or in the same vein, condemning or criticizing that party or its members who by virtue of the same election hold some offices created by the constitution, is painful, unconscionable and immoral, it is however not illegal". (Emphasis).

Yet the Court in line with the settled philosophy of the law that the duty of the court is Jus dicere and not Jus dare - to declare the law and not make law” held “I hold the strong view that "law making" in the strict sense of that term, is not the function of the judiciary. Let there be no incursion by one arm of the government into that of the other that will be an invidious trespass" (supra) at 245.

Thus from the Supreme Court decision in AG FEDERATION V ALHAJI ATIKU ABUBAKAR (SUPRA) which is the locus classicus on cross-carpeting and defection form one party to the other we can make the following propositions of law:

• Cross carpeting by any member of the Legislature at both Federal and State levels i.e. Senate, House Representatives and State House of Assembly automatically makes the seat of such member vacant except where such persons come within the exceptions provided in sections 68 (1) (g) and 109 (!) (g) of the constitution.

• There is no sanction or restriction on members of the Executive i.e. President/Vice President, Governor/Deputy Governor. Such members of the Executive can defect or carpet-cross at will.

• In the case of such members of the Executive, even where their Carpet-Crossing or defection is painful, unconscionable and immoral, it is neither illegal nor unconstitutional.

SPECIAL COURTS NOT NEEDED.

Recently, the chairperson of the Economic and Financial Crimes Commission, EFCC was reported in the media as demanding for special courts for the prosecution of Economic Crimes. Madam Farida Waziri was quoted as lamenting the failure of the Agency to secure necessary convictions of accused persons as being due to the absence of special courts to try economic and financial crimes.

This type of advocacy and corresponding lamentation is of course not new having been around with us for quite a while.

In fact, it was prevalent in the military era, where any one in government or close to government could influence the promulgation of a Decree to set up a court, popularly called tribunal to deal with specific situations, ie Rent Tribunal, Armed Robbery Tribunal, even Failed Banks Tribunal, so if more than 10 years into constitutional democracy, there is still a lingering thirst for tribunals and special courts, that is very understandable.

However, beyond this romantic nostalgia, the reasons for the demand by the EFCC helmsman for a special court need to be closely examined in the face of the existing constitution, legal and even practical frame work- Mrs. Waziri is quoted to have said that complicated Court procedure is in the way of prompt and successful prosecution of accused persons particularly of high profile cases. How much of this is factual, legally valid or merely sentimental?

While it is natural under certain conditions to call for radical solutions including special courts for special situations after all as Shakespeare said “unnatural situations doth breed unnatural thoughts" and the problem of corruption and abuse of office in Nigeria constitutes a special situation that must be fought in a peculiar manner, yet we must not lose sight of the fact that we are under a constitution which is supreme and all actions must be guided by the constitution and law. Thus there can never be a resort to illegal means to achieve a legal end, as fighting corruption with illegal means is corruption in itself- A quagmire which the immediate past helmsman. Mallam Nuhu Ribadu fell into, driven by his revolutionary zeal to fight corruption lie constantly resorted to extra- legal means which alienated him from a cross-section of the more objective citizenry who though impressed by his passion to tackle corruption headlong, disapproved of his tactics. He was to experience first hand what it means to be a victim of extra-legal tactics when he was removed from EFCC, demoted in rank and eventually booted out of the police. Having himself been an Apostle of extra-legal means most Nigerians except those who benefited from his rampaging tactics could not sympathize with him. Many felt he deserved what he got.

The point being made here is that the commission and indeed, every agency of government must strictly follow the path of due process and rule of law laid down in the constitution, by conducting its affairs, investigations, arrests and prosecution before the courts known to law, i.e. the Federal High Court and the State High Courts.

The EFCC in particular has the advantage of a number of statutes such as the EFCC (Establishment) Act 2004 the Money Laundering Act, the Advanced Fee Fraud Act and a Few other legislations to support its activities. In addition a number of hardworking and diligent judges have been assigned to determine EFCC matters expeditiously. Several of the provisions of these laws arc radical compared to the old laws; seizure and forfeiture of Assets, obtaining of evidence; etc all aimed at facilitating the work of the Agency.

Thus the question to be asked at this time, is what else does the EFCC need to effectively discharge its duties? Perhaps the agency, will only feel confident to do its work diligently, when it does not need to lift a finger to get a conviction, when the accused persons are denied the presumption of innocence, are not entitled to counsel of their choice, are not entitled to challenge the admissibility of evidence even in the case of tutored and contrived evidence. May be then the clamour for special courts will cease and the lamentation about failed prosecution will no longer arise. But then not only will we need to amend our constitution but then the very essence of our judicial system will have to change from being adversarial to being in the nature of a Spanish inquisition. The truth of the matter is that the EFCC is probably its own worst enemy. Where mere investigation are being conducted into the activities of high profile Nigerians, routine invitations of prominent Nigerians by the commissions is deliberately leaked to the press (presumably to assure the public that the agency is up and doing), when the concerned individuals are arraigned, the arraignment takes front page in National Newspapers, with the executive accused persons escorted by a retinue of security aides as if a Mafia Don or Drug Baron was on trial. After the accused plea is taken in respect of a ridiculous number of charges at times 100, 120, 150 and even more, the celebrated accused person is then driven off Gestapo-style.

The lawyers add to the drama by granting press interviews arguing their cases even more brilliantly than they did in court for media consumption and the court of public opinion. With this grand display the public is primed to believe that the accused is a goner with no hope of escape .except that after the initial grand- standing the prosecution soon becomes lethargic, the prosecution might abandon the prosecution or becomes guilty of indolent prosecution such as tendering uncertified statements of accounts under the Evidence Act on the ground that computer generated evidence being a new innovation in evidence which requires no certification, which results in court based on settled principles rejecting the said evidence. An error for which the agency rather than admit its fault instead goes to the press to blackmail the judge for "Frustrating the war on corruption" after all it is the court of public opinion that will eventual decide the case, is it not? This resort to extra legal means of course is bound to boomerang, as the public is not always as gullible as some imagine. In the particular instance, assuming the learned trial judge was wrong, which is quite debatable in the face of a long list of Supreme Court decisions, all the agency needed to do as to go on appeal.

But perhaps the agency's greatest undoing is the resort to the highly controversial plea bargaining, a legal concept of American origin, it is note- worthy that even in its country of origin it has a well laid out procedure which is strictly applied. Furthermore, certain, classes of felonies are not subject to plea bargain.

But under the EFCC, very serious corruption cases of over 120 counts that would have seen public officers facing "200 years" in prison apart from forfeiting Billions of Naira of stolen funds to the Nigerian State are bargained away that at the end of the day the high profile accused person is found guilty of only one of the over 100 counts and is given the option of paying a meager N1 million out of the over N1 billion involved in the corruption charge, the Igbinedion case is a classic illustration. When to the list of compromised and bungled prosecutions is added the inconclusive prosecutions of several high profile Nigerians whose arraignment was celebrated with funfair like, Prof. Grange, Prof Borishade and Mr. Femi Fani/ Kayode. The public is bound to react negatively to the activities of the commission . And for this sad state of affairs the commission has no one but itself to blame. Not the laws, many of which were made to assist the agency, not the courts who have a duty to do justice according to law not sentiments or public opinion and certainly not by blackmailing defence counsel by accusing them of sabotaging the war on corruption. Defence counsel's duty as ministers in the temple of justice does not include assisting the prosecution in securing conviction against his client even if the same is the nation's worst criminal. In fact such conduct is highly unprofessional.

The EFCC rather than engage in self-pity and seeking undue advantage of special courts, should brace up to the challenge of fighting corruption pro-actively. This can be done by de-emphasizing media publicity for cases, but investing in the best investigative methods, retraining and training of officers, engaging the best prosecutors even seasoned legal practitioners including SAN's who can be encouraged to take up a certain a number of anti-corruption prosecutions either pro-bono or for subsidized fee as part of the proposed re-certification scheme for lawyers, de-emphasize plea bargaining and prosecuting to logical conclusion of cases particularly all high profile cases. While this will not always end in convictions but the inevitable convictions even in a few cases will go a long way to emphasize the commitment of the agency to fight corruption to a stand still.

It is such systematic albeit slow approach rather than the unfair and unconstitutional advantage to be derived from special courts than can guarantee success in the long run for what is a marathon crusade, not sprint, against corruption.

RETAINING THE RANK OF SENIOR ADVOCATE OF NIGERIA,

What started off as pockets of protests amongst a few radical lawyers and a handful of others frustrated in their legitimate quest to be admitted to the rank of the inner Bar has all of a sudden developed a life of its own metamorphosising into a movement that has a whole class of lawyers in its fold. I am talking of no other than the movement for the abolition of the rank of senior Advocates of Nigeria, ironically led by certain Elders of the otherwise conservative Premier Branch, the Lagos Bar. This movement coming at a time when even the Supreme Court had occasion to berate certain members of the inner Bar thus "what kind of country is this where senior Advocates of Nigeria are used to mess up the judiciary? We will not allow this kind of practice. This is wrong", in a recent failed attempt by embatted Anambra Politician Dr Andy Uba to unseat Peter Obi as Governor of Anambra State. The time has come to take a very critical but objective look at the rank of senior Advocate of Nigeria SAN and its continued relevance to both the legal profession and the administration of Justice in Nigeria. Yes, the highly coveted rank of SAN is seriously under attack and justifiably so. Several reasons, some of them self-inflicted are responsible for the bad blood and negative reaction that the otherwise lofty status generates in recent times.
Some of the reasons include:
i. The sheer arrogance and pomposity many in the inner Bar unusually display both in and out of court. The recent botched attempt to register the Body of Senior Advocates of Nigeria incorporated is a clear manifestation of this tendency.
ii. The disposition only to take the privileges and advantages without a corresponding willingness to provide leadership and make sacrifices. Example, the SAN'S ARE AUTOMATIC National Executive Committee NEC members but only a handful ever turn up for meetings, members of the Inner Bar have been lobbying seriously to be made Court of Appeal and Supreme Court justices at the expense of other judges who rose through the ranks yet, there are no guarantees that a SAN will readily make a better judge. The rank of NBA Presidency is now conventionally reserved for silks at times in the face of more committed non-SANs with a track record of service to the Bar. Yet, when a proposal was made for the SANs to pay more for annual practicing fees, the silk resisted strongly inspite of dominating the commanding heights of the profession.
iii. The silks dominate the mega briefs in the profession, charging huge fees for services which a competent non-silk will perform excellently for infinitely lesser fees.
iv. Unlike in the past, many silk cannot be credited with distinction in any area of the law and quite a number after getting the award show no interest in the development of the law but rather venture into areas completely unrelated to law like business and politics yet at every opportunity are quick to remind others that they are Senior Advocates of Nigeria. On the other hand, there are many lawyers completely sold out to the law and its practice who are strangely denied the award yearly.
v. Closely related to the last consideration is the emergence of instances in the legal profession where God Fathers who have the ability to make their children, wards and protegees SAN at the expense of more experienced, much older and more competent lawyers. Thus the highly exalted rank of SAN has been hit by the infamous Nigeria factor reduced to the status of political favours to be dished out to loyal cronies and at other times to the highest bidder.
vi. There is also the issue of application fee which the authorities explained unconvincingly as being necessary to weed out unserious applicants and unconfirmed miscellaneous expenses necessarily incidental to obtaining the award.
vii. The last two factors have ensured a succession of SAN's in some families and chambers.
viii. Opponents of the rank insist that the privileged status works, against the attainment of equity and justice by the courts as many judges are easily overwhelmed by the mere presence of a SAN in a cause or matter to tilt the balance of justice unfairly in favour of the Senior Advocate.
ix. Still some of our more radical and egalitarian colleagues question the justification of a special class within the rank of lawyers pointing out the classlessness of the American Bar. They also point out to the fact that in Ghana, the status of Senior Advocate of Ghana has since been abolished and that even in England the country of Origin of the Queens Counsel there are on going debates as to the continued relevance of the rank to modem day dispensation of justice.
x. Finally, the involvement of quite a few silk in unwholesome and unethical practice and conduct constitutes very bad advert for the rank of SAN. These arguments are formidable and very thought provoking for quite a few of us who still believe in the retention of the rank in spite of all odds. Yes, we see the great abuse to which many a Silk has subjected the exalted rank to nor do we play the Ostrich about the mediocrity that has come to be associated with the rank in recent times, but to the extent that the rank of Senior Advocates of Nigeria is built on the ideals of excellence and distinction to which all legal practitioners, should aspire to, so long will some of us desire the retention of those ideals. The fact that we might not attain such a rank in our life time is another matter, indeed to dwell on that can only rob ones analysis of objectivity which unfortunately is in very short supply on this debate. Many on both sides of the argument maintain their positions either based on where they are now or might end up, let us strive to raise this very serious debate above personal and parochial considerations of I, me and myself, or what is in it for me?
Returning to the theme of excellence the rank was instituted in 1975 and has been warded almost yearly ever since till date, taking a random sample of the first half of the awards between 1975 - 1992, perhaps we may detect any awardee to whom distinction could not be ascribed, Chief F.R.A. Williams, Mr. Kehinde Sofola, Chief G.O.K Ajayi. Prof. Ben. Nwabueze, Chief Olisa, Chukurah, Mr. A. N.Anyemene, Sir Clement Akpamgbo, Chief Ladosu Ladipo, Prof. A. B. Kasunmu, Chief R. A. Fani-Kayode, Mr. Fidelis Nwadialo, Mr. Abayomi Sogbesan, Dr Mudiaga Odje, Chief Toye Coker, Chief Mrs. Tolake Solanke, Mr. E. O, Sofunde, Mr. L. N. Mbanefo and Chief Wole Olanipekun. Let someone point out any one of these 20 SANs some of whom are dead but many of whom are still living who were not lawyers of the highest distinction. So the rank of SAN was undoubtedly at inception linked with excellence, which is a high and lofty ideal to which we should all aspire. So if in the other half of the award, excellence and distinction have now fled, yes there is a problem but the problem cannot be innate in the rank since it was not part of it at inception, it was a problem that arose with time. In other words the problems now associated with the rank of SAN are of recent origin and can thus be tackled from source. The reasons responsible for the fall from the Olympian heights of the status of SAN include:
a. The dethronement of merit in the selection process.
b. The emphasis on loyalty and affluence above competence.
c. The emergence and pervading influence of Godfathers.
d. The emphasis on technical number of cases over quality of
cases and advocacy; which some lawyers have described as the preference for quantity over quality.
e. The ever-present issue of Geographical spread. These factors are neither exhaustive nor do exist in water tight compartments so will be examined together as they in fact tend to overlap.
The most damaging factor responsible for the bad light in which the rank of SAN is now seen by a large section of society, legal and non-legal alike is the obvious dethronement of merit in the elevation of lawyers from the Outer Bar to the Inner Bar. As lawyers in society, we are natural light bearers and the whole society watches with rapt attention everything we do both individually and collectively. How many times have our clients asked us why Mr. Lagbaja who has a reputation as a good lawyer is not a SAN why Chief Tamedu who is reputed to be an excellent advocate both within the legal and non-legal circles is yet to be conferred with the exalted rank. Recall, the general embarrassment to the whole profession of the non-award of silk to the indefatigable activist, quintessential law publisher and consummate advocate. Chief Gani Fewhinmi for several years until
less than 10 years. Now, if it is non-lawyers who recognize the competence of our members for the award, imagine us learned colleagues who know a lot more equally deserving colleagues who have not been accorded the award. Very senior colleagues who have contributed to the profession as advocates, who have themselves trained other lawyers even SANs, who have developed the law both in court, books, journals and even membership of critical committees yet for strange reasons have never been thought good enough for the award. I will not on grounds of decorum mention any of the living but I think there can be no greater indictment of the award, that
persons such as the late Mr. Fola Sasegbon one of the pioneers of the shipping and Maritime law practice in Nigeria or Prof. Jadesola Akande, a first rate constitutional law author and teacher were not rewarded with the award in their lifetimes but at every award there is a substantial number of awardees of modest abilities and anonymous contributions to the development of the law, whose main claim to distinction is the affluence of their practice and their loyalty to one of the awarding Godfathers. But the question is the silk a reward for wealth and commercial balance sheet of practice or professional ability or competence?
This is where some of use have a serious problem with the revised Guidelines with the emphasis on the opulence of applicants chambers as opposed to quality of advocacy. It is in fact conditions such as this that promote the emergence of God fathers who are ready to invest in the applicant for personal gains by making available to him finances, a well furnished chambers and an offer of partnership that is more technical than substantial. This approach puts at an undue advantage lawyers with deep pockets over their less materially endowed colleagues but more able and committed to forensic advocacy. It is submitted that there should be a reversion to the old criteria that places professional ability over material well-being.
Equally, counter productive is undue emphasis now placed on the technical number of appearances in both the Supreme Court and the Court of Appeal. A counsel may have none or very few cases in the Supreme Court but may never the less be a Superior advocate both in the written and oral form to a lawyer who sleeps in the Supreme Court.
Thank God for the written address system that has been adopted in most of the Jurisdiction in the nation at the High Court level, all applicants should be required to submit a copy of the Written Address filed under their hands along side copies of the decisions submitted for application to the Privileges committee for assessment. That should be a most revealing exercise.
In respect of the observations about the domineering influences of SAN's in the administration, this argument is neither here nor there. A large number of judicial officers I have had the privilege of appearing before for well over 23 years .are not in the least intimidated by even the "Ancient" SAN; they accord them all the rights and privileges befitting their elevated status but by the same taken hold them to the highest standards possible as leaders of the Bar, errors and omissions that would have been over looked for lower ranking lawyers are with SAN's strictly viewed. Submissions and applications made in bad faith usually on grounds of Senior Advocates standing rather than on law and procedure, are politely but firmly refused at times with punitive costs.
It is a fairly common phenomenon for certain silks to vow not to appear before certain junior judges when the major "sin" of the judicial officers that qualifies them for the "Junior" status is the refusal to indulge learned SAN's erroneous submissions and professional excesses.
Even the comparison with American Republicanism is misplaced. Nigeria and USA have radically different historical and cultural roots. The Americans started off as a persecuted settlers Haven. So from the onset the philosophy of the New world was to reject the Order of the Old world. Here, most although not all, our traditional customs were based on a well-established social stratification that recognizes nobility, integrity and success through hard work. Thus our practice of modem day republicanism must naturally flow from our historical and cultural background. And as for Ghana jettisoning the rank, our local realities are certainly different and we cannot be expected to follow blindly our West African brothers. After all it is different strokes for different folks.
The issue of national spread is an extremely sensitive one, which goes to the root of our existence as a nation. In any case, it is a constitutional provision all that can be said at this stage is that the policy must be applied responsibly so as not to undermine the spirit of excellence that ought to pervade the award of silk.
Ultimately, the most formidable argument of the abolitionists is ironically its weakest and albatross. The argument that since the rank of SAN has been highly abused and no longer connotes distinction to many, the same should be abolished. This is an extremist argument obviously inspired by anger and frustration but which if followed to its logical conclusion will only result in absurdity; a reductio ad absurdum.
In all sincerity, what institution, office or area of our rational life has not been plagued by abuse, corruption and mediocrity? Is it our values, education, admissions into schools, appointments of public officers even judges, elections both at general elections. Even now at the Bar, Police, religion, politics and government even our corporate existence, as a nation is not free from the ills of corruption nepotism or mediocrity. We might as well in creating the Utopian society go all the way abolishing these ills, abolish the Nigerian State as well.
The reasonable and practical solution to this serious problem is not the lazy and absurd throwing away of the baby and with the bath water as being suggested but a reinvention of the rank of SAN; be it from the point of view, criteria for appointment membership of privileges committee, status, duties and privileges etc, all aimed at ensuring that only the best are appointed and remain in the rank of SAN. There is nothing that says a strict code of conduct cannot be devised for members that erring members be sanctioned by way of suspension even outright permanent demotion to the outer Bar of errant members. That I submit is the only way of creating a rank or office that will stand the test of time not the lazy and destructive tendency to pull down everything a vocal section of society cannot lay its hands upon.

SAN: not a do or die affair.
For several reasons, such as limited number of appointment (to guarantee quality) life-span (which is entirely in the hands of Providence), fortune/Luck, several other factors all beyond human control, it should be obvious that not all brilliant lawyers will take silk in their life-time. Conversely, not every one who takes silk is permitted by Almighty God to live long enough to enjoy the rich benefit of the lofty title. A few years ago, a very brilliant classmate and colleague who had taken silk only a few years earlier passed on in a ghastly car accident.
These things are simply beyond us. But what is within our power while we still breathe is to excel in our stations in life and by extension areas of legal practice. Thankfully we have many unsung heroes who nonetheless excelled, and have continued to excel even without taking silk. Speaking for myself, I met or at least heard of the following non-silk who achieved distinction at the Bar or in the academic without taking silk, Pa J. A. Cole, Prince G. M. Boye, Chief R, A. Akinyemi, Mr. Fola Sasegbon, Mr. Adenugba Adesina, Mr. Fred Egbe, Mr. Alao Aka- Basorun, Chief A. A. Oguntuase, Prof. B. O. Iluyomade, Prof. Jacksola Akande, Prof. Abiola OJo amongst others who all passed to the great beyond. Amongst the living we have Chief Chris Ogunbanjo, Mrs. Hairat Balogun, Chief Badru Olaogun, Mr. Chiobi Ekpechi, Prince Yemi Adefulu, Senator Dipo Odie Jirin, Chief I. O. Ajijola, Prince T. A. Awosanya, Prof. U. U. Uche, Chief V. A. Odunaiya and several others who have achieved the greatest distinction in various aspects of the legal profession be it advocacy, solicitor practice, academics, legal publication and scholarship yet without the coveted silk status.
I do not believe that the history of the legal profession in Nigeria can be written without inscribing the above names and several others in gold though they never took silk (the living may yet do so).
I am fully persuaded that our watchword ought to be excellence and distinction with or without silk.

TAXATION AND ALL OF US

Taxation is as old as the human society. Evidence of its antiquated history abounds in the holy book The Bible - which records that Jesus Christ our Lord was born at a time when the reigning Emperor Caesar Augustus commanded a census of the whole Roman Empire for the purpose of taxation.
In His short yet most eventful life, the Saviour was recorded as endorsing the legitimacy (legality) of taxation as captured in the very popular phrase "Render unto Caesar what is Caesar and unto God what is God's", he practiced what he preached-recall the directive to Apostle Peter to go a fishing and use the coin retrieved from the mouth of a fish to pay for His and Peter's taxes. And for the evangelist in our midst at least too notable tax collectors who were public enemy No. l in those days, Matthew the writer of the first book of the New Testament and the diminutive yet irrepressible Zaccheus. It must be noted that the essence of taxation in those ancient times was as a tribute, an acknowledgement of servitude and an instrument of oppression.
Even much after biblical times, taxation continued to shape the course of history in several parts of the world; taxation by the British colonialists of the American colony led to the Boston massacre in 1770, where British troops massacred American citizens, Boston Tea party of 1773, which eventually led to the American Revolution War at the end of which the United States of America attained sovereignty. In the United Kingdom there was the obnoxious poll tax which led to several social upheavals in that nation in the course of history.
Coming nearer home, the British as part of its colonial administration in Nigeria introduced various taxes in Nigeria the most obnoxious of which was the poll tax which was meant to be paid by every adult, male or female. This of course only worsened the master/servant relationship between the British and the indigenes leading at times to many unrests the most prominent of which was the Aba Riot of 1929. There were also other localized social discontents in the colonial and immediate post-colonial era such as the Abeokuta women uprising led by irrepressible Mrs. Funmilayo Ransome - Kut and the deposition by the government of the defunct western Nigeria of Sir Olateru-OIagbegi as Olowo over tax related matters.
However, in spite of the inglorious antecedents of taxation world wide, since the dawn of the modem era when the symbiotic relationship of the society as represented by the government with the citizens became well detailed in a social contract taxation has assumed a very critical and positive role in all progressive societies; it is axiomatic that it is the civic duty of every adult in society to pay tax except in special and exceptional cases. Governments in all society demand the fulfillment of this obligation in return for which they provide basic conditions of living and necessary infrastructure, which allow each citizen to realize his full potentialities. This is the social contract in a simplified form.
In even the most advanced societies, where citizens are otherwise free to pursue their quest for happiness to the full at times bordering on licentiousness, the permissiveness of society never extends to payment of taxation. In the United States of America for example seen by many as the bastion of permissiveness the aura of liberty remarkable does not extend to taxation, The celebrated Boxing promoter Don King has fought many battles over the payment of taxation, several years ago Televangelist Jimmy Swaggart was embroiled not only in sexual scandal but problems of tax evasion, even now popular Movie Actor Wesley Snipes is in prison for tax evasion, and most recently a number of the highly charismatic President Obama's nominees could not get US ministerial confirmation over matters relating to payment of taxes. Across the sea in Europe taxation is no less seriously enforced, a few years ago popular Nigerian Televangelist Pastor Asimolowo had a running battle with the British tax officials on the payment of tax, but befitting of his status as a true man of God, he has since made the necessary adjustments to emerge last year as the highest tax paying cleric in the whole of the United Kingdom and one of the highest tax paying individuals in the nation.
Coming nearer home, in a strictly legal fashion there is a surfeit of legislation on various areas of taxation at Federal, State and even Local Government levels. Personal Income Tax popularly called the PAYE, pay as you Earn, Companies Income Tax Capital Gains Tax, Petroleum Profit Tax, Withholding Tax, Value Added Tax etc. Talking strictly on the theoretical plain, if the nation were to strictly enforce its sundry tax legislations there will be more than enough money to run the country smoothly and provide all the basic needs of the citizens, with little or no regard to the once free flowing Petro-dollars which has been the mainstay of the Nigerian economy in the last 35 years. But then in Nigeria the best theories count for nothing.
In this instance the reason why the nations tax regime has not been a major source of revenue earner for government at any level unlike in other places is not far fetched but rooted in our immediate past history. At Independence and for more than a decade thereafter, the nation's tax laws particularly in relation to the individual were strictly enforced. Even, the nation's jurisprudence on taxation of that era was quite rich and still provides veritable reference materials for modem day lawyers. ADERAWOS V FBIR (1966) LLR 195 FBIR V REZCALLAH (1962) ANLR 1 FBIR V ALUMINIUM 1 AG (1971) 2 NCLR 121. AKWULE V R (1963) ANLR 105.
But the increase importance of Oil revenue in the nation's economy following the astronomic rise in the influence of the Organization of Petroleum Exporting Countries OPEC from 1974 was to herald a paradigm shift away from taxation as a major source of revenue of government with double-edged result. Government did not need to bother itself with strict enforcement of the nation's tax laws on the citizens, since tax administration is expensive even in the most advanced societies, by the same token since the government particularly the Federal Government did not derive its money from the tax paying citizen, it felt no moral duty to provide the citizens with the basic conditions and, infrastructure necessary for the advancement of society. Thus the bulk of the money made by the nation in the hay days of huge oil sales went into private pockets to the detriment of the nation's development and progress. The citizenry for its own part developed its own reaction of not paying taxes to the state, in the belief that any such payments only went into private pockets to be shared by those in power and their cronies. This moral overhang has continued till date particularly at the Federal level and sadly enough, there is nothing till date to debunk this moral question. Even in the dying days of the military government when Tax Consultants - which ought to have read Private Enforcers were appointed to augment the fast dwindling oil revenue, nothing by way of development came the way of the nation from the huge sums of money raked in from companies. The administration of the Value Added Tax, VAT 80% of which is derived from Lagos State by the Federal authorities has not fared any better. In the premises of these historical realities every attempt by government particularly at the Federal level either to increase tax or devise fresh forms of taxation has always met with stiff resistance by the citizens, such as when a few years ago, the Federal Inland Revenue Service, FIRS sought to raise the amount of VAT from 5% to 15% citing the practice prevalent in the Western African sub-region, the citizens of the country rose in Unison with one voice against the proposal and the plan was promptly shelved. Unfortunately, till date apart form posturing and postulations such as the much touted Draft National Tax Policy there is nothing by the Federal Government to morally justify increased T'axation of Nigerians by the Federal Government or its agencies. This is most unfortunate!
However, the Lagos State Government with its performance since the inception of democracy 10 years ago and more particularly in the last 2 years of the administration of Governor Babatunde Fashola SAN has demonstrated clearly its moral entitlement to demand of its citizens, the discharge of their civic responsibility to pay their taxes as and when due. This is one government that can look any and every citizen in the eye based on its service delivery in virtually every area of life, health, education, security, roads and transportation, construction and repair of social infrastructure, to answer the question in the mind of every citizen why he needs to pay his taxes promptly. In this regard one notes with some degree of interest bordering on amusement, the recent visit of the nations Tax helmsman Mrs. Omoigui Okauru to the Lagos State Inland Revenue Service. Madam Okauru must be told in no uncertain terms that the Lagos State model will not work at the Federal level except the Federal Government matches its quest for more tax revenue with the ability to deliver the elusive "dividends of democracy" as Nigerians are entitled in the manner of the Americans 250 years ago to demand that "no taxation without performance".
In specific regard to Lagos States increased revenue drive based on the payment of Personal Income Tax while this is a most welcome initiative in the face of dwindling Federal Allocation based equally on even faster dwindling Oil Revenue and the global melt down but great care must be taken to get the maximum, not necessarily full support as there will always be tax-defaulters in any society, support of the citizenry. In this area the rate of assessment is most critical and the government must resist the temptation to rely heavily on the opinion of smooth talking and sartorially elegant consultants and technocrats who are cut off from the day to day realities of the citizens. Rather the government needs to do wide rage consultations with members of the private sector who are the real genuine and "grassroots" stakeholders in coming up with a realistic and practical rate of assessment that will guarantee success for the state's new tax initiative. With specific reference to the Rate of Assessment that is being advertised for professionals particularly lawyers, it is submitted that the advertised list is most unrealistic and needs to be downwardly reviewed to ensure massive compliance by lawyers.
If not the state administration led by a Senior Advocate of Nigeria will be put into an embarrassing position of either turning a blind eye to massive default by his colleagues and risk being branded biased in favour of his Constituency, or be forced to "descend heavily" on erring colleagues and lose vital support of his learned friends.
The model of realistic and practical assessment arrived at by genuine consultations with stakeholders should be applied across the board to all strata of Lagos society.

Men of God and payment of taxes.
Since this article started off by venturing into areas otherwise reserved for clerics and theologians perhaps it is only fitting that this article be brought to an end on this issue. As stated earlier on in this article, the Lord Jesus Christ, the author and minister of the Christian faith paid tax» so by rule of theological precedent, no clergy of the Christian faith can be heard to question the state's right to demand taxes of all citizens, believer or pagan. Historically the tax demanded by imperial Rome of her conquered people was very oppressive which was why tax collectors were most loathed by ordinary citizens yet Christ endorsed the tax and set a good example of paying the same. Whilst not claiming expertise or even serious knowledge of other faiths, it can be reasonably assumed that the civic responsibility of the Christian faith is equally replicated in other faiths.
However, practical concerns have been raised in respect of clerics, who do not earn a fixed salary in respect of their service to their Creator, how are these unsalaried men of God who depend on the free will gifts and donations of members of their congregations be assessed to tax? Here there are no easy answers. But let there be wide consultations with all stakeholders and sincerity on every one's part.
A real man of God who earns a salary ought not to lie about his status as a salaried worker or found it difficult to meet his obligation to the state. Neither should the state be carried away by the flamboyance and opulence of a handful of clerics to believe that men of God are cash cows to be milked for revenue.
But what is not in dispute is that where the Church or Mosque leaves the realm of the Celestial to engage in business like other mere mortals it is liable to be taxed like every one else. AREC V JDP (2007) 5-6SC96.

At the end of the day, the inescapable facts are:
(1) All of us as law-abiding citizens are under a duty to pay our taxes as when due.
(2) The rate of assessment must be fair, reasonable and realistic, not mindless, revenue driven assessment.
(3) The state must deliver and continue to deliver on the provision of amenities, infrastructure and conditions of living, that guarantee the greatest happiness of the largest majority.

A VIEW OF ELECTRONIC GENERATED EVIDENCE

One of the most heated debates within the rank and file of the legal profession is the issue of the admissibility of electronic generated evidence particularly computer generated statements of Accounts.
Opinions are sharply divided amongst lawyers as to the admissibility of computer generated evidence with all manner of views being expressed some logical, others plausible while some are extreme bordering on the ridiculous.
One of the more popular views expressed is that the Evidence Act being an Old legislation enacted on the 1st of June, 1945 did not contemplate computer evidence thus statements of accounts produced by the computer are inadmissible.
The decision of the Court of Appeal in UBA PLC V SAFPU (2004) 3 NWLR (pt 861) 516, that Statements of Accounts produced by the computer in the form of print outs are inadmissible under section 97(1) and (2) of the Evidence Act even though otherwise relevant. For good measure the lamentation of the Court of Appeal in that case of the need for the amendment of the Evidence Act to be able to admit computer generated Statements of Account is quoted with flourish. Yet another equally competing and popular legal view is that computer generated Statements of Account are admissible in evidence under the Evidence Act. The decision of the Court of Appeal in the case of TRADE BANK V CHAMI (2003) 13 NWLR (pt. 836) 158 which conflicts with the earlier cited case of UBA V SAFPU (2004) 3 NWLR (pt. 861) 516 where computer generated statement of account was admitted by virtue of Section 38 of the Evidence Act is usually cited off-hand by lawyers in this group. .
In recent times some high profile criminal cases conducted by the Economic and Financial Crimes commission EFCC where statements of Accounts generated by computer prints-cut were rejected for not satisfying section 97 (1) (g) and (2) (e) of the Evidence Act have only sparked off more heated debates as to whether the Evidence Act allows for computer generated Statement of Account with both groups above maintaining their hard line positions on computer generated evidence.
The humble view of this column is that neither of the conflicting decisions in UBA V SAFPU AND TRADE BANK V CHAM1 (SUPRA) satisfactorily answers the question whether computer generated evidence is admissible under the Evidence Act or not. Indeed by giving conflicting decisions on the admissibility of computer generated the Court of Appeal with due respect has only added to the confusion over the admissibility of computer generated evidence as every lawyer and Court has a perfect excuse to pick and choose between the two decisions in support of their reactions.
Beyond further fueling the controversy neither decision directly answers the question whether computer generated statement of accounts is directly admissible under the Evidence Act taking into consideration the provisions of section 97 of then Evidence Act.
On the question of whether or not the absence of the word computer from the Evidence Act which was enacted pre the computer age, ipso facto makes computer generated evidence inadmissible. It is submitted that there is nothing esoteric in the word computer or in the device itself, what is important to note is that computer generated evidence like any document is produced by mechanical process, whether it be IBM Machine, computer print out even the archaic manual type writer or typesetting machine. The essence of statutory Interpretation is to interpret the words of a statute in line with current realities. That is why the American Constitution is still being interpreted till date even though made over 250 years and the Magna Carta of 1215 was on the English Statute Books for over 700 years before the statute was rested about a quarter of century ago. At no time did the age of the law stand in the way of its application to modem situations. Thus, with all due respect it is erroneous in law that on account of the old age of the Evidence Act and the fact that the word computer is missing from the Evidence. Act, computer generated evidence is inadmissible under the Evidence Act. In respect of the TRADE BANK V CHAMI case, it is submitted that the decision was delivered per Incuriam. On the nature of the Banker's Book/Statement of account admissible under the Evidence Act Section 97 was not adverted to, only sections 38 and 91 were referred to. The Court held that while section 38 is applicable section 91 was not. With due respect to their Lordships it has been held in a long line of Supreme Court case that a Statement of Account/Banker's Book to be admissible under the Evidence Act it must satisfy the requirements of section of 97 (2) (e) of the Evidence Act.

YASSIM V BARCLAYS BANK DCO (1968) 1 ANLR 171
YESUFU V ACB (1976) 4 SC 1
OGUMA V 1.BWA (1988) 1 NWLR (pt.73) 658.
Thus it cannot be correct that just because statement of account is generated by computer it is exempted from the strict certification requirements of section 97 (2) (e) of the Evidence Act.
If anything, the myriad of manipulations that a computer generated document could be put makes this strict requirement all the more imperative, We shall return to this theme later.
On the other hand the decision of the Abuja Division in UBA V SAFPU is not anymore helpful either. Even the lamentation about the need to amend the Evidence Act to be able to admit computer-generated Statement of Accounts is somewhat confusing.
As stated earlier there is nowhere in the Evidence Act that prevents the admissibility of computer generated statements of Account, so any talk of an amendment of the Evidence for that specific purpose is misplaced. In addition, it is not clear from the Judgment whether the refusal to admit the computer print out statements of Account is because it is simply a computer generated document or because of the provisions of section 97 (2) (e) of the Evidence Act were not met. The Court in fact held that the computer print out statement of account is relevant, so if it relevant is it not because it satisfies the provisions of the Evidence Act on admissibility and is thus cognizable under the Act. It is submitted that the Court ought to have limited its comments to the failure of that particular document to meet the requirements of the Evidence Act under Section 97 (2) (e) in which case the talk about legislative amendment to admit computer generated statement of account becomes unnecessary.
The view of this column is that computer generated statements of account just like any other computer generated evidence is admissible as documents generated through mechanical process but in the case of bank's statements section 97 (2) (e) of the Evidence Act as to certification must be strictly adhered to: to wit.
(a) That the book from which the entries were copied and made was at the time of making one of the ordinary books of the bank.
(b)That the entry was made in the usual and ordinary course of business;
(c) That the book is in the custody and control of the bank.
(d)That the copy has been examined with the Original entry and is correct.

UNITY LIFE & FIRE INSURANCE V IBWA (2001) 7 NWLR (pt.713)610.
YASSIM V BARCLAYS BANK DCO (SUPRA)
YESUFU V ACB (SUPRA)
OGUMA V IBWA (SUPRA)
All these decisions are Supreme Court decisions which are juridically superior to the 2 cases of TRADE BANK V. Chami and UBA V SAFPU which are not only conflicting but the source of so much controversy.
The above Supreme Court decisions are directly on point in respect of the admissibility of the Statements of Accounts/Bankers Books, thus remain the law on the admissibility of statements of account no matter how generated be it manually or by any form of mechanical process including by way of computer print out. It is in fact submitted that the compelling reason for certification is on account of the ease with which computer whiz-kids from all sides of the divide, be it those out to defraud others including banks and unwary customers or those on the side of banks and even prosecuting agencies bent on nailing a fraudster, can readily manipulate electronic records and documents for their parochial interest. After all, the primary rule of the computer m spite of all advancements is GIGO Garbage In Garbage Out. It is whatever information you feed into the system true or false that you get.
Certification remains the only guarantee against manipulated evidence from being freely admitted in a Court of law. The Supreme Court succinctly captured the compelling need for certification in the case of ARAKA V. EGBUE (2003) 7 SC 75 @ 84/85: "One main objective behind section 97 (2) (C) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the Original. This in addition to the need/or the preservation of public documents. In this age a/sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context a/section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process a/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”

We can add nothing useful to this observation of the apex Court.

CONCLUSION:
The Evidence Act even in its pristine form can readily accommodate computer generated evidence including computer print-out statement of accounts but such evidence must comply with the certification provision of section 97 (2) (e) of the Evidence Act. That remains the only way to ensure that only authentic computer generated statement of accounts rather than manipulated, forged, contrived or fake statements of accounts are admitted in Evidence.
Nevertheless, the entire Evidence Act needs to be overhauled to enact a modem and up to date Evidence Act for our dear nation to bring our law and jurisprudence of Evidence in line with the best global practices.

Ademola A. Adewale
Legal Practitioner.

In the temple of justice, when you want ferret out some facts or truths, truths unpleasant to your opponents, the minister you press to work is cross-

Amidst the popular clamour for electoral reform, one of the most recurrent issues of discourse is the question of the provision of a time-frame for the determination of electoral disputes.

It is not in dispute that most Nigerians would like a situation where all electoral disputes particularly those relating to the high office of Presidency and Governors are resolved before the holders of these Constitutional offices are sworn in and begin to discharge the duties of their office. Most are disgusted by the spectacle of Governors, Senators (and by extension the president) being sworn in, taking far reaching decisions, assenting to bills, spending public finds, earning jumbo salaries, appointing a retinue of Commissioners, Special Advisers, Special Assistants etc.; in short living the life of a Constitutional chief Executive for months and years only to be removed at times nearly 3 years after as has happened in several States such as Anambra, Edo, Ondo and Ekiti (though the jury is still out on the latter State in view of the re-run elections).

In fact the singular absence of a time-frame in the report of the Electoral reform Committee is enough reason for a cross-section of the populace to reject both the report and the government’s white paper thereon.

In principle, this desire of the Nigerian people cannot be faulted as it is most desirable that the people know the leaders they have chosen well before such leaders are sworn into office and begin to play the vital Constitutional roles which affect the lives of the people in a profound way. But this article will examine critically the practically and even legality? Yes, legality as this should not be assumed of a time frame for election petitions.

First the argument for a time-frame within which to conclude election petition: this is a very common argument that it bothers on criminality to allow election petitions to drag on for years while those with stolen mandates occupy public office and proceed to further loot the public treasury for a few years before they are thrown out. The conventional wisdom is that such a person should not only account for every sum collected but in fact be prosecuted and all his actions nullified. The reasoning here is that this is the best way to discourage people from electoral malpractices and stolen mandates.

Support for this opinion is found in electoral situations both at home and abroad. The 1979 Presidential election out of which the 122/3 States controversy which was resolved before the winner Alhaji Shehu Shagari was sworn in is cited as an example. On the foreign scene, the 2000 American Presidential Election which involved the Florida re-count debacle between Bush and Gore popularly called Bush V Gore which was also resolved by the United States Supreme Court provide ready ammunition for this school of thought. The group argues forcefully quoting Dr. Anthony Akinola in THE GUARDIAN of Thursday 19 March 2009 @ page 79 “someone who did not win an election should not, under any circumstances, be allowed to assume the position of President of the Federal Republic of Nigeria or governor of any State in the federation – even for just one day. The oath of office is sacred: it should not be administered when we are in doubt.”

Prima facie – at face value, this argument seems unassailable and admitting of no reasonable counter argument. But upon a calm and dispassionate evaluation of the situation if may be found that the matter is not as simple and straight forward as the advocates of a fixed period of time for the resolution of electoral disputes would seem to suggest.
In commencing a critical examination of the subject of time limitation for resolving electoral disputes it is important to stress, even at the expense of sounding pastoral, that there is nothing new under the sun. And as the Holy Book says “that which hath been is now; and that which is to be hath already been.”

The idea of time limit for the resolution of electoral disputes is not a such a new thing. As far back as 1982 in the 2nd Republic, The Electoral Act 1982 in Sections 129(3) and 140 (2) thereto provided for 30 (thirty) days for the resolution of electoral disputes either in relation to the Presidency, Governor, National Assembly and State Assembly posts. But the Supreme Court in the celebrated 2nd Republic case of Dr. Paul Unongo V Aper Aku (1983) 14 NSCC 563 held the issue of time limitation in the resolution of electoral disputes Unconstitutional.
A few years ago, a brilliant lawyer and potential silk in the person of A.J Owonikoko Esq. tried with all forensic advocacy at his disposal to get the Supreme Court to overrule the Unongo V Aku case in the equally celebrated case of Yusuf V Obasanjo (2003) 9-10 SC 53, but to no avail. The Supreme Court stuck firmly to her guns as held in Unongo V Aku’s case.

Why then would the apex court stick to this unpopular view”, which is now the cause of strange developments in which electoral matters are decided 18, 24 or 28 months after the wrong person has been sworn in and has benefited immensely at least from the lack of time frame in the determination of electoral disputes? No one other than the Supreme Court can best answer this question.

In Unongo V Aku’s case, the Supreme Court’s said “Any electoral enactment which specified a time constraint on the court to determine an election petition is to say the least very absurd and indeed defeats the intention of the constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election to seek redress in court.”

Also in Unongo V Aku’s case, the Supreme Court held that “there can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a court which ha an election petition ….. but such power cannot in view of the constitutional doctrine of separation of powers amongst the thrice arms of government, that is the Executive, Legislative and Judiciary, extend to the limitation of the time within which a case properly instituted in a court can be heard and determined. If the power were so to apply, as indeed applies under the Electoral Act, then it would, in my opinion, be ultra vires because. It amounts to unconstitutional interference with judicial functions.”

In the Yusuf V Obasanjo’s case the apex court held that “ it would appear to me that the decision in Unongo and a few others following, might have resulted in the most encouraging and assuring absence of the regimental fixation of time within which to determine an election petition in the present Electoral Act. That is a development for which the legislature receive my kudos. That is how it should be in a democracy.”

The court stated clearly that “it is certainly against all known principles of fair hearing as the court, by the provision (of time limit) is hemmed to a fixed date within which it must, as a matter of law, deliver judgment.” {Emphasis added}.

Thus, the Supreme Court based on the view that to fix time limit for the determination of election petitions will stifle or frustrate a parties right to fully ventilate his case, held that the 30 days period prescribed in the Unongo V Aku’s case was unconstitutional, and the 30 days period for bringing amendment under Section 132 of the Electoral Act 2002 of the Yusuf V Obasanjo’s case is unconstitutional.

Indeed, it is this desire to allow parties ample opportunity to present their case that prompted the apex court in the recent celebrated case on Interrogatories Abubakar V Yaradua (2008) 1SC (pt 1) 77 to allow the Appellant, Alhaji Atiku Abubakar to deliver interrogatories on Prof. Maurice Iwu even when the same was not front loaded with the Appellant’s petition as required by the Election Petition practice direction and to allow the Appellant’s appeal on the refusal to allow interrogatories by the lower court, which is an interlocutory appeal contrary to the provisions of the said Election practice direction which barred interlocutory appeals.

The overriding objective of all these decisions of the Supreme Court on election petitions was stated as being “the need to ensure that all relevant evidence is given to ensure that justice is seen to be done.” That the ends of justice ought not be sacrificed just because of the desirably to have the case disposed off speedily.” Most importantly because “courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing.

Thus on the strength of this welter of judicial opinion that the fair hearing of election petitions which entails granting all the parties, petitioners and respondents alike adequate opportunity to fully present their cases, which might take weeks, months and a few years, takes precedence over the desirability of speedy hearing of election petitions, does the clamour for time-limit to the determination of election petitions hold any water?

On a more practical in some level if some of the election petitions in some of the South-Western States had been more timely determined, would some of the petitioners had been able to call in the evidence of the British forensic Experts Adrian Forty, whose expertise exposed several instances of multiple thumb-printing of ballot boxes by the same voter/voters and various other electoral shenanigans that characterized the 2007 elections? At yet another level of comparative analysis, the comparison to 1979 Elections, 1983 elections, 1991-1993 elections or the 2000 American Presidential Elections are not always apt. there are certain fundamental differences between Nigerian elections post 1999 and all the above elections both locally and abroad.

Take the 1979 Elections for example. The problem that arose was not in relation to widespread electoral malpractices like ballot box stuffing, voter intimidation and the like. Rather the problem was in relation to the votes cast in (old) Kano State. Alhaji Shehu Shagari had secured ¼ of the votes cast in 12 States to Chief Awolowo’s ¼ of votes cast in 6States. But the legal question was whether Alhaji Shagari who secured less than ¼ of the votes cast in the 13th State of Kano, had satisfied the constitutional requirement of ¼ of votes cast in 2/3 of the 19 States of the Federation, which led to the hair-splitting argument as to whether a State could be divided into fractions or not. At the end of the day the supreme court had accepted the hair-splitting argument that a State could be split into fraction such that where a candidate secured ¼ of the votes cast in 2/3 of a State; that is 1/6 he could be declared a winner. This is of course not an occasion to determine whether the supreme court was right or not and volumes of books have been devoted to analyzing that celebrated case. What is important for this discourse was that the Awolowo V Shagari, 122/3 case was strictly a point of law issue which was decided in less than 3 months after the election and probably could be still so promptly decided, if that was the sole issue for determination. (1979) 6-9S.C 51.

Contrast that to the 2003 Presidential elections where allegation of malpractices were raised in 12 of 36 States namely: Adamawa, Kaduna, Enugu, Taraba, Ebonyi, Benue, Cross-River, Edo, Rivers, Bayelsa, Imo and Ogun State. And a total of 355 witnesses were called. In Buhari V Obasanjo (2005)7S.C (Pt1)1.

Still talking about the 2003 elections; in the Ngige V Obi’s case over 400 witnesses were called in relation to Gubernatorial election in a State (Anambra) with 21 Local Government Councils.
The 2003 presidential election, trial and appeal took 26 months while Anambra 2003 Gubernatorial elections, trial and appeal took almost 34 months to dispose off.

To cut down drastically on the spectacle of an election petition averaging two, three years to determine the President of the Court of Appeal issued Election Petitions practice Directions 1& 2 2007 aimed essentially at eliminating the calling off dozens of witnesses and long-winded lawyers speech. Reducing practically everything into paper-work, and the cross-examination of only the most vital witnesses. Thus after the 2007 elections, it was not unusually to see parties loaded the court with dozens of bags of fully loaded “Ghana-must-go” bags of documentary evidence and lawyers paperwork; petitions, motions, affidavits and written address. Already in existence of facilitate speedy hearing of these disputes and provisions of precedent to electoral matters over the common and general matters involving the common and ordinary man-section 148 of the Electoral Act. How many times have my ordinary Nigerian clients suffered adjournment of their cases because the presiding judge is away on an electoral tribunal or because the appellate courts are only able to attend election petitions? Extrapolate that by the number of practicing lawyers who do not have the good fortune of being on an election petition legal team and you have a fair idea of the effect on the system.

Yet with all these privileged status the election petitions still take an average of 20 months to get finally disposed off.
With regard to the American example the comparison is non-existent. The 2000 American Presidential debacle relates to disputes as to proper voting by the use of the voting machine – the notorious Chad; dimpled, hanging, pregnant, swinging door, tri etc in a handful of countries-equivalent of our local government area, certainly less than a dozen in the disputed State of Florida. Even then it took that great nation more than 5 weeks of earth –shaking political wrangling to deal with the situation before that nation’s Supreme Courts could bring the situation under control!

Would the famed American political machinery have survived if the dispute had been more widespread, say over 3 States? In any case, the 2000 debacle is child’s play to the controversy which usually surrounds a mere gubernatorial decisions in Nigeria. So the American system offers no useful comparison and assistance.

Finally, if as we have established it still takes an average of 20 months to resolve electoral disputes, with all our best efforts, how do advocates of time-limit propose that government be run in the interim by Senate Presidents or Speakers whose electoral mandates may be under judicial scrutiny? By caretaker committees of civil servants? Will that be democratic? I certainly hope not the usual mantra of by the courts! The judiciary must resist the popular clamour of being invited to get involved in the political terrain; no matter the pressure the courts must never be involved in politics administration lest she becomes like the proverbial elephant tricked into her doom by the deceitful praise singing. The courts are of course too wise to fall for such seductions.

At the end of day, the solution to stolen electoral mandates, long drawn electoral disputes, non-credible elections, is not constitutional amendment, electoral reforms, very stiff penalties for electoral offences, time-limit to settling electoral disputes. They all might help though. But the solution is a change of heart by all of us at every level to ensure free, fair and credible elections. Unfortunately the solution is not as easy as it appears; habits die hard!