RETHINKING TRIAL DE NOVO IN NIGERIA: LAW REFORMS

1. INTRODUCTION

In reintroducing the concept, “trial de novo”, this author is reminded of the fact that distinguished magnates in the legal profession have forerun his quest by carrying on their backs the wailings of a vast majority of persons over the issue of trial de novo and its impact on affected litigants and mere observers. To put in proper perspective, trial de novo means “from the new”; it is a new trial on the entire case, that is, on both questions of facts and issues of law, conducted as if there had been no trial in the first instance. While we embark on an all-round discourse, it is submitted by the author that the situation of unending trials across courts in Nigeria is an institutionalized problem caused majorly by the three arms of government – calling it a reckless omission or deliberateness all points to the fact that the draftsmen and interpreters of laws mostly define justice from an overfed point of view.

In this article, we shall consider what leads to trial de novo. We shall also look into the bottlenecks of trial de novo, as a concept; there would be need to also address the conflicts and recommend feasible alternatives or solutions. Bear in mind that Superior Courts of Record will be the focus as we turn to subsequent paragraphs.

2. TRIAL DE NOVO – LOOKING AT IT

As established, trial de novo means “afresh” or “beginning again”. Under Nigerian Laws, Practice and Procedure, a trial de novo comes into existence where a judge of a court is either deceased, elevated, retired, transferred or removed from his judicial office. The banal practice in Nigeria, following the creation of any of the mentioned events, is for the head of such court to reassign case files of the erstwhile judge to another judge of the court who must try the case afresh notwithstanding the stage of the trial. Looking at it, the mentioned events will establish the fact that such judicial officer is no longer a member of such court and it is the law that composition of judges is a crucial factor in determining jurisdiction. However, from a constitutional standpoint, there are no express provisions in the grundnorm that addresses or even mentions cause and effect of elevation, transfer, death, retirement, etc. with a trial de novo in view. It can be said that since the Constitution vests lawmaking powers in the legislature, subsequent statutes made by the legislature will be valid so long as not found inconsistent with the Constitution.

Notwithstanding what has been said above concerning the compulsory nature of the new judge in trying the case afresh, Order 49 Rule 4 of the Federal High Court Rules 2019 makes provision for possibilities of part-heard trials of the erstwhile Federal High Court judge and its implication under law . It reads:

Where a judge retires or is transferred to another Division and having part-heard a cause or matter which is being re-heard de novo by another judge, the evidence already given before the retired judge or the judge transferred out of the Division can be read at the re-hearing without the witness who had given it being recalled. But if the witness is dead or cannot be found, the onus of establishing that the witness is dead or cannot be found, shall lie on the party that wishes to use the evidence. (Underlined words mine)

We would understand from the above provision that the Federal High Court recognizes part-heard trials only in a situation of retirement or transfer of the erstwhile judge. It does not extend to death, removal or elevation of the judges. Also, regardless of the retirement or transfer of the erstwhile judge who part-heard the cause or matter, the trial will invariably start afresh though there is such a possibility for the new judge to read out pieces of evidence from the records of the erstwhile judge to the hearing of the parties so as to confirm if parties are relying on same or otherwise. A logical implication is that parties can choose not to rely on past records and just align themselves with an entirely new narration and evidence before the new trial judge. Instructive is the case of NGIGE V OBI (2012) ALL FWLR (Pt. 617) 738 at 757-758 where it was held, inter alia, thus:

On hearing de novo, the Court hears the matter as a Court of original and appellate jurisdiction. It means nothing other than a new trial. This further means that the Plaintiff is given another chance to re-litigate the same matter or rather in a more general sense the parties are at liberty to once more reframe their case and restructure it as each may deem fit appropriate. (Sic) (Underlined words mine)

Away from the mentioned events where trial de novo often thrives, in the event that an appellate court is unable to draw conclusions owing to a perverse judgment of the trial court, a retrial order may be given which implies starting the suit afresh . However, appellate courts are often reluctant to granting a retrial. They are often guided by certain salient considerations such as: (1) whether the plaintiff has established his case by raising the probabilities in his favour; or (2) whether the order of retrial will enable the defendant to improve his position during retrial to the prejudice of his opponent; or (3) whether the litigation will be unnecessarily prolonged; or (4) whether the proceedings are conducted by the trial court largely in conformity with rules of evidence and procedure; or (5) that there was no substantial irregularity in the conduct of the case. Instructive is MAFIMISEBI V ENUWA (2007) 2 NWLR (Pt. 1018) 385.

Before delving into some legal arguments surrounding the concept (trial de novo), it should be observed that the Court of Appeal and the Supreme Court are constitutionally fortified to deliver a valid judgment notwithstanding the death, transfer, retirement, elevation or removal of a justice as what counts is the majority decision vide s. 294 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (later CFRN). Worthy of note is that a justice in these appellate courts, who is in one of the mentioned events, can have his opinion pronounced in open court by the presiding justice during the delivery of judgment. In the event where such justice was not in any of such events but absent for other reasons while still a member of the court, the Constitution allows his opinion to be read if reduced into writing vide s. 294 (2) CFRN. Instructive is the case of ANYAOKE V. ADI (1985) 4 SC 213 where it was held that it was competent for one Justice to read his own judgment and also the concurrent judgments; and to read the fact that other Justices concurred to the judgment. It does not matter whether the absent Justice is even dead. If he wrote his opinion or expressed same orally before his death, another Justice can pronounce it.

3. LEGAL CONSIDERATIONS

There is often a battle for cases to move up from trial courts to the Supreme Court especially because of the snail pace of the justice delivery system. A look around reveals the steady growth of arbitration and while it is not a bad idea for parties to consider other forms of dispute resolution mechanisms as a matter of choice, litigation should not be the sacrificial lamb on the ground that it is impossible or impracticable to salvage the decay in trial advocacy. This author has identified trial de novo as one of the Egyptians many concerned Nigerians hope to see no more and we shall swiftly see why.

Just so that ramblings are in proper perspective, it is not to be canvassed here that trial de novo is bad for all intents and purposes – by implication, this author advocates for a further infringement on its usability to the extent that functional justice prospers. The practice in most High Courts of Nigeria is that a suit starts afresh once the erstwhile judge is transferred to another division (as well as for other earlier mentioned events) and if we think deeper as to the rationale, there will only be little to imagine. In the minutest of its rationale, there is the argument that the new trial judge might be more inclined to rendering inadmissible already admitted documents. This worry should be short-lived as the trial judge is in no way boxed into contemplations of legal impossibilities like reviewing the decision of the erstwhile learned trial judge; the judge can always expunge documentary evidence from his record during judgment stage as a mere marking of exhibits does not amount to proof of the case.

A decision to start a case afresh because of all mentioned events above might not raise brows if the cause or matter is yet part-heard. In this case, parties may not have suffered much time loss as the case was still in its preliminaries. It is submitted here that if the case has been part-heard, then it works hardship on the litigants for the case to start afresh – the convenience of the Bench cannot be placed on a higher pedestal at the expense of ensuring that justice is seen to be done between litigants. As is now common practice, a matter can remain refreshed like a Facebook Page all because of quick successions of transfer, elevations and demise of three to four judges handling an affected litigant’s case whereas if we sincerely inquire within, we would reach similar conclusions that it is not practically impossible for Judge B to continue a part-heard trial heard by the erstwhile Judge A upon a careful study of the records of the court. It is pretentious to place overwhelming theories on a physical inspection of demeanour of witnesses as paramount, when indeed truths and prevarications can be found in the accounts penned by the erstwhile judge.

One of the mentioned events that sure divided the legal community was that of elevation of judges to higher courts while there remained cases on the judges’ docket; the implication is that the part-heard matter loses its life with every memory of it definitely wiped out. This has been decided in a long line of notorious cases such as OGBUNYINYA & ORS V OKUDO & ORS (1979) NSCC 77; OUR LINE LTD V S.C.C. NIGERIA LTD & ORS (2009) 17 NWLR (Pt. 1170) 383 and the recent case of UDE JONES UDEOGU V FRN & ORS SC.622C/2019 (unreported). UDE JONES’ Case (supra) is known to most persons that followed the turn of events involving Orji Uzor Kalu – wounds of which we now treat quietly. In that case, the Supreme Court had the chance to apply Ut Res Magis Valeat Quam Pereat the principle that will give effect to s.396 (7) of the ACJA 2015 rather than defeat the legislative intention. The Supreme Court gambled away the chance to qualify the outstretched arms of trial de novo and relished to a pulp the fanciful technical ratiocinations such as “he has been elevated thus not a member of the erstwhile court”, “the Justice of the Court of Appeal cannot give a fiat to the new elevated Justice as it runs contrary to s. 1(2) (a) of the Federal High Court Act 2004”, to mention a few. One thing that cannot be rebutted easily is the fact that we cannot be more rational than our sentiments and if the Supreme Court really wanted to give life to s.396 (7) ACJA 2015, it could have done so relying on the need to cater for the missing gaps in the Constitution as regards elevation of judges. Problematic times, really – trial de novo automatic once elevated and trial de novo if the elevated Justice gets a fiat to conclude part-heard matters.

On the issue of another judge delivering the judgment of an erstwhile judge of that court, contemplating the mentioned events, it is interesting that a trial de novo could still be ordered on grounds that the judgment could not have been valid as the erstwhile judge ceased to be a member of the court. Little hope may have been set in motion following the decision of the Court of Appeal in the case of AGF V ANPP & ORS (2003) 15 NWLR (Pt. 844) 600 at 658-659 where it was held that the omission in the Constitution vide s. 294 (2) CFRN to provide for the delivery of a judgment by another judge of the same court was a mere lacuna. The Court relied on Ss. 21 and 23 of the Federal High Court Act to arrive its decision. For ease of reference, the said sections will be reproduced below:

S. 21. Where the Judge who shall preside over the sitting of the court is from any cause unable or fails to attend the same on the day appointed, and no other Judge is able to attend his stead, the court shall stand adjourned from day to day until a Judge shall attend or until the court shall be adjourned or closed by order under the hand of a Judge.

S. 23. Every proceeding in the court and all business arising thereat shall, so far as is practicable and convenient and subject to the provisions of any enactment or law be heard or disposed of by a single Judge, and all proceedings in an action subsequent to the hearing or trial, down to and including the final judgment or order shall, so far as is practicable and convenient, be taken before the Judge before whom the trial or hearing took place. (Underlined words mine)

The reliance on the practicability and convenience test in ruling that another judge could deliver the judgment of the erstwhile judge was sound and possible only because the Court was swayed by its sentiments and the need to secure a value judgment – laudable and dry behind the ears, definitely. Moreso, it could also make for good logic if the practicability and convenience test be extended to earlier mentioned events considering that s. 23 Federal High Court Act does not limit the test to delivery of judgments – argued here is that if a judge is elevated, transferred, deceased or removed, another judge of the court could stand in just so that justice does not become delayed. It is good that most laws of Courts have a similarly worded s.23 but the reasonable fear is that a sound argument could pop challenging the inheritance of the erstwhile judge’s case files when he ceased to be a member of the court. In fact, the entire gist in the later decided case instilled the fear further in the case of NANA & ORS V NINGI & ORS (2018) LPELR-46399 (CA) where it was held, inter alia, as follows:

In the case of BAKULE V. TANEREWA (NIG.) LTD (supra), it was held by this Court that decisions and orders made by a Court in a matter which later starts de novo before another Court of competent jurisdiction are not in existence and are lifeless in the new trial.

4. RECOMMENDATIONS

It is submitted that the problem may not lie with the Constitution, really – especially as cannons of interpretation are always on standby to ensure statutes are brought in conformity with public policy and convenience. If we must mitigate the hardship caused by trial de novo, we should consider the following key points:

Firstly, all Superior Courts of Record should have practice directions regulating instances of the earlier mentioned events as it is not expressly catered for in the Constitution and any statute book. There should be incorporated into the practice directions the provision that elevated judges could conclude part-heard trials; also, a provision enabling another judge to inherit the part-heard trials should be incorporated bearing in mind the practicability and convenience test. The logic that an ‘elevation of a judge makes for no jurisdiction’ should put in perspective the fact that it is possible for an elevated judge not to be criticized for serving two courts once it is seen that though he was appointed, he was yet to either take the oath of allegiance or declare assets vide s. 290 CFRN. The appointing authority should make sure that the elevated judge be given a grace period to conclude pending trials on his docket before resuming or functioning as a Justice of a higher court – the time frame being a reasonable time. This is even the practice in the United Kingdom as confirmed by Queen’s Counsel resident in that jurisdiction. To be added here is the fact that rather than practice directions, it could form as statutory provisions to avoid future sound arguments on the weight of a practice direction.

Secondly, a way to cure the mischief will be to amending relevant provisions of the statutes regulating the Superior Courts of Record such as the Federal High Court Act or other High Court Laws of States. There would not have been need for the Court of Appeal in AGF V ANPP (supra) to forcefully untie itself from the shackles of the bad mammoth practice brought by trial de novo, if s.23 of the ACT, for instance, had a proviso incorporating instances of the mentioned events with the ultimate conclusion that another judge of the High Court could continue with the part-heard trials such that where the case was even inherited before the erstwhile judge could deliver judgment on the day reserved for same, another judge of the court could do same. This in itself will forestall, in parts, the occurrence of unending or prolonged litigation.

The third and final point would be to amend the Constitution and clear the air ultimately as that will avoid or end the reign of rigid judgments of the Supreme Court on this matter since it is hardly the case that alters of technicalities are no more worshipped. The call for an outright amendment to reflect the mentioned events is put last because of the cumbersome procedure in effecting an amendment of the Constitution. It is however hoped that all arms of government, particularly the judiciary and their fervent love for trial de novo, rethink this concept and work towards dispensing justice to all and sundry remembering always that Justice delayed is Justice denied.

POSTSCRIPT

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STRIKING DOWN UNCONSTITUTIONAL PROVISIONS OF LAWS; IN WHOM RESIDES THE POWER?

—Patrick Omodia Esq

BACKGROUND

The Bayelsa State Governorship Election Tribunal holden at Abuja in PETITION NO: EPT/BY/GOV/03/2020 delivered its judgment nullifying the Governorship election for non-compliance with the provisions of Section 138 (1) d of the Electoral Act 2010 (as amended) on the 17th day of August, 2017. Neither the ratio decidendi nor the entire majority judgment is the concern of this paper. This write-up is concerned with an excerpt from the dissenting judgment of Hon. Justice Muhammad I. Sirajo. In fact, the excerpt is not a material part of the dissenting judgment but it however caught the fancy of this writer. The excerpt reads thus:

“I find that there is clearly a conflict between section 138 (1) (d) of the Electoral Act which makes unlawful exclusion of candidate a post-election matter and the provisions of section 285 (14) of the Constitution which makes it a pre-election matter. Being a pre-election matter, contesting the election of the 1st Respondent in excluding a candidate at an Election Petition Tribunal as a post-election matter ran contrary to the provisions of section 285 (9) & (14) of the Constitution. I would have struck down the provision of section 138 (1) (d)) of the Electoral Act for its inconsistency with the provisions of section 285 (9) & (14) of the Constitution but for want of jurisdiction to do so, as such powers resides only in the regular Courts, this being a special Tribunal with special and specific jurisdiction .” (emphasis supplied)

THE POSER

Flowing from the above, it is pertinent to inquire as to whether the Tribunal was in error. In other words, does the power to declare offending provisions of a law (Act of the National Assembly or Law of a State) void for its inconsistency with the provisions of the Constitution vest only in the “regular courts”?

It is the opinion of this writer that the said power is not the exclusive preserve of the “regular courts”. The Tribunal is right only to the extent that Election Tribunals are not among the regular courts in Nigeria. The “regular courts” under the Constitution are as listed in section 6 (5) (a)-(k) of the Constitution as follows:

(5) This section relates to:-
(a) The Supreme Court of Nigeria;
(b) The Court of Appeal;
(c) The Federal High Court;
(cc) The National Industrial Court
(d) The High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) A Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

Although an Election Tribunal is not a Court, it still has jurisdiction to make a declaration to the effect that an unconstitutional provision of any statute is void, for reasons which are stated below.

UNCONSTITUTIONAL PROVISIONS OF LAWS ARE AUTOMATICALLY VOID

Section 1 (3) of the Constitution states thus;

If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.

The implication of the above provision is that the Constitution is the supreme law of the land and the highest legal authority. Therefore, no law can validly run inconsistent with the provisions of the Constitution. The ability to determine whether a law is inconsistent with the provisions of the constitution is not and cannot be the preserve of the courts to the exclusion of other tribunals established by law to determine disputes. Once a tribunal has jurisdiction to entertain a dispute (in the case of an Election Tribunal, it has exclusive jurisdiction to determine whether a person was validly elected to the office of a Governor, member of the National Assembly or a House of Assembly ), it is entitled to interpret the laws it adjudicates on and therefore make a finding as to whether the said laws are consistent with the provisions of the Constitution, findings which are binding and subject only to an appeal to an appellate Court. This must be differentiated from decisions of administrative bodies which are administrative or executive in nature and are not interpretative in nature but are made in execution of laws.

Once there is a finding that the provisions of a law are in conflict with the provisions of the Constitution, there is nothing left for the Court or Tribunal to do but to declare the said provisions null and void. Indeed, from the provisions of Section 1 (3) of the Constitution, any provision of a law that is unconstitutional is automatically void. This has been the attitude of the Courts in a host of decided authorities such as NATIONAL UNION OF ELECTRICITY EMPLOYEES & ANOR. V. BUREAU OF PUBLIC ENTERPRISES where the Apex Court held thus:

It is trite law that under the consistency test that the validity of any law is determined by its consistency with the provisions of the Supreme Law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall to the extent of the inconsistency be void, in support of this proposition see Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82). Also, see Section 1(3) of the 1999 Constitution and also Adisa v. Oyinwole (supra) and Attorney General of Ondo State v. Attorney General of the Federation & Ors. (2002) 9 NWLR (Pt. 772) 222 per Uwaifo JSC.

See also the case of UGBOJI v. STATE where the Supreme Court held as follows:

My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section one, made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. Ondo State vs AG of the Federation and Ors (2002)9 NWLR (Pt 772) 226.

From the above, an Election Tribunal needs no further special jurisdiction to make such a declaration.

Where an action is void, it is a nullity and a Court need not make an Order setting it aside before it becomes a nullity. This was the position in MAMMAN & ANOR v. HAJO. Same principle should apply to a void provision of a law. In fact, the Court of Appeal held in the case of ODEYALE & ANR. V. BABATUNDE & ORS. that a person need not comply with the provisions of laws which violate their Constitutional right.

Therefore, there is nothing sacred about declaring certain provisions of a law void for inconsistency with Constitutional provisions. If the Election Tribunal wanted to decline jurisdiction to declare Section 138 (1) (d) of the Electoral Act void, then it should not have made a finding that there was an inconsistency in the first place. A finding of inconsistency automatically renders the said provision of the Electoral Act void. If this point is not convincing enough, let us consider the next point.

EFFECT OF SECTION 4 (8) OF THE CONSTITUTION

Section 4 (8) of the Constitution provides as follows:

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

The above provision grants Courts the power to review the validity of laws made by the National Assembly and Houses of Assembly. In the case of UNONGO v. AKU & ORS., the Supreme Court enthused thus:

This Court had occasion to consider the scope of the first limb of section 4(8) of the Constitution in Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1982) 3 N.C.L.R 1 at p.4D wherein Fatai-Williams, C.J.N. as he was then, said: “By virtue of the provisions of section 4(8) of the Constitution, the courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.” I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the courts ought not to entertain and must not entertain their jurisdiction under section 4(8) over the conduct of the internal proceedings of the National Assembly unless the Constitution makes provisions to that effect. I said at p.46: “I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers. However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements.” As the courts respect the right of the legislature to control its internal affairs so the Constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts.

Eso, JSC, in ATTORNEY GENERAL BENDEL STATE v. ATTORNEY GENERAL FEDERATION opined as follows:

The powers conferred on the courts by section 4(8) are wider than the inherent powers to interpret the constitutional system such as ours. The express provision of the powers vested in the courts and the mandatory nature of it indicate to my mind an intention on the part of the framers of the Constitution that the Courts should have this power to scrutinize the exercise of legislative power by the National Assembly. The inherent power is provided for in section 6(6)(d) and the ultra vires doctrine could be applied in respect of any law which violated section 4(2)(3) but yet, the Constitution stipulated section 4(8). It seems to be one of the many checks and balances contained in our Constitution. It is also unique among written Constitutions.

Thus, Section 4 (8) of the Constitution grants the Courts full jurisdiction over laws made by the National Assembly and Houses of Assembly, including the power to nullify unconstitutional provisions of laws. It is apt therefore to say that in Nigeria at least, judicial review of legislation is a power exercised by virtue of Section 4 (8) of the Constitution. Now, let us reconsider the wordings of the said section.

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

From the above wordings, it is clear that the same power vested in the Courts is also vested in Judicial Tribunals established by law. It therefore implies that whatever has been stated in the above authorities that applies to Courts of law also applies to judicial tribunals established by law, especially as they do not state that such powers are for the Courts “only”.

WHAT ARE JUDICIAL TRIBUNALS ESTABLISHED BY LAW?

Although the word ‘Tribunal’ or the phrase ‘Judicial Tribunal’ is not defined in the Constitution or any statute, respite can be found in case law. A judicial tribunal is simply any institution with authority to determine the rights, duties and liabilities of persons. This was the position of the Court in the case of UTONG & ORS V. UTONG & ORS where the Court of Appeal quoted in approval the dictum of Kingdom CJ of the West Africa Court of Appeal. In this case, a Council of Elders performing customary arbitration, deriving its authority from custom, was held to be a judicial tribunal. From the above authority, a Judicial Tribunal need not be an institution with a formal setting. It is enough if it engages in dispute resolution and derives its authority from some law, charter or even custom. Arbitration Houses may even qualify as judicial tribunals, going by the definition given by the Court of Appeal. Thus, once an institution which determines the rights, duties and liabilities of persons is established by law, then it is a Judicial Tribunal established by law, properly so-called. Election Tribunals are institutions established by Section 285 of the Constitution for the determination of questions as to whether a person was validly elected to an office. Nothing screams “judicial tribunal established by law” more than this.

Section 4 (8) of the Constitution also implies that it is not correct to state that only the Courts have power to interpret statutes. Judicial Tribunals established by law such as Election Tribunals also possess that power. This is particularly so as Courts or Tribunals established by law do not adjudicate on disputes in a vacuum but in accordance with the position of the law. On this score, let us hear the words of the Court of Appeal on the ability of an Election Tribunal to interpret statutes in the case of AKUNYILI & ANOR V. NGIGE & ANOR where it held thus:

Undoubtedly, this Court is not the only court saddled with the interpretation of the provisions of statutes relating to election matters. The Tribunal in the course of entertaining election petitions routinely interprets provisions of the amended Constitution relating to election matters as well as those of the extant Electoral Act.

The above is exactly what the judicial tribunals established by law do. They interpret laws that relate to their jurisdiction. The Election Tribunals, for instance, have power, by virtue of Section 285 of the Constitution, to determine whether some categories of persons have been duly elected. In determining the question, the Election Tribunal considers the facts of the matter vis-à-vis the position of the law (Electoral Act, Section 138 (1) (a) – (e) thereof) to see whether there are grounds for nullifying the election or returning the petitioner as elected. Nothing can scream “interpretation of statute” more than this. Since the Election Tribunal has power to interpret statutes, it remains to be seen how that power of interpretation does not extend to declaring unconstitutional provisions void.

CONCLUSION
One interesting aspect of the excerpt from the dissenting judgment is that the learned Tribunal did not cite any authority in support of its position. The void for inconsistency rule in Section 1(3) of the Constitution is automatic and need not the declaration of a regular Court to take effect, such a declaration is certainly not the exclusive preserve of the regular Courts either. Insofar as the Tribunal is empowered by law to interpret statutes in resolving disputes and for as long as it remains empowered by Section 4(8) of the Constitution to review the validity of laws made by the National Assembly and Houses of Assembly, it cannot be correct for the Tribunal to refuse to do the needful when it finds an inconsistency between the provisions of laws and the Constitution.

THE NIGERIA-CHINA COMMERCIAL LOAN AGREEMENT — LOOKING BEYOND THE CLAUSES IN ARTICLE 8 (1)

INTRODUCTION

On July 28, 2020, there was cause to reflect on the Beijing money once again. The headlines from the papers further troubled the troubled minds of Nigerians battling with societal ills and the pandemic. Headlines like “GALAXY BACKBONE: REPS UNCOVER CLAUSES CONCEDING NIGERIA’S SOVEREIGNTY TO CHINA” left hands of puzzled Nigerians resting on chins; also seen were intelligent remarks from lawyers and finance enthusiasts/experts interpreting the notorious Article 8 (1) of the Commercial Loan Agreement as safe and avant-garde.

This paper considers Article 8 (1) of the Commercial Loan Agreement signed between Nigeria and Export-Import Bank of China (EXIM Bank) which allegedly “wills the sovereignty of Nigeria” in the $500 million loan for the Nigeria National Information and Communication Technology (ICT) Infrastructure Backbone Phase II Project, signed in 2018. A critical look beyond Article 8 (1) of the Loan Agreement determines either of two things: Whether the Beijing Money is a subtle predatory deal with hegemonic intentions? Or whether the China’s Belt and Road Initiative (BRI) is a fair lending practice targeted at strengthening infrastructures of developing countries?It is the position of the author that while the clause in Article 8 (1) of the Loan Agreement is not one that surrenders the sovereignty of Nigeria to the Republic of China, the ripple effects of China’s advancement of excessive credits to Nigeria could indeed cause Nigeria her sovereignty. It is submitted here that sovereignty is a product of political and economic control devoid of external interference and if held as accurate, we just might be looking at neocolonialism. Away from all forms of conspiracy theories, this paper is more channelled towards due regard for caution as we currently cannot boast of a Passover feast as recession looms.

Quick answers to questions above will be addressed as well as common issues bordering on feasibility of a nation-state to waive its immunity, the grounds, and the type of lender that could demand for clauses in Article 8 (1) and for what reason. We now must turn to the meat of the matter.

THE UNCOVERED IGNORANCE

The members of the House of Representatives raised alarm over “lethal clauses” in Article 8 (1) of the commercial loan agreement. For ease of reference, the Article 8 (1) provides as follows:

“The Borrower hereby irrevocably waives any immunity on the grounds of sovereign or otherwise for itself or its property in connection with any arbitration proceeding pursuant to Article 8(5), thereof with the enforcement of any arbitral award pursuant thereto, except for the military assets and diplomatic assets.“

From its wording, the borrower merely waives its jurisdictional immunity and its immunity from execution as is typical in loan agreements of this sort. The alarm by the House Committee on Treaties and Agreements on grounds of the above provision is possibly a case of not appreciating the term, “sovereign immunity”. It is the position that a sovereign immunity, or state immunity, is a principle of customary international law, by virtue of which one sovereign state cannot be sued or brought before the courts, arbitral tribunals, to mention a few, of another sovereign state without its consent. Reading this definition into Article 8(1) will reveal that Nigeria consents to waive its sovereign or jurisdictional immunity as well as its immunity to the execution and enforcement of an arbitral award. It was not a waiver of Nigeria’s right to political will and independence or her right to self-governance without interference from China. One take home is that both concepts appeal to fine margins.

From the understanding above, it may not be accurate to conclude that the Nigerian Government used her sovereignty as a bargaining chip as that goes beyond the scope of a waiver of sovereign or jurisdictional immunity. Also, the grounds for a waiver are rather inexhaustible and it comes down to the reasons of a state wanting or willing to contract. Easier to answer however are the ways by which a state can waive its immunity. They are: (1) By prior written agreement, (2) By instituting proceedings without claiming immunity (3) By submitting to jurisdiction as a defendant in a suit; and (4) By intervening in or taking any steps in any suit (other than for the purpose of claiming immunity). It is safe to say that the waiver of jurisdictional immunity was done by way of written agreement vide Article 8 (1) of the Commercial Loan Agreement.

BEIJING MONEY – BEYOND THE BRI

China, through its Belt and Road Initiative (BRI), has funded loan agreements in many African Countries. They have a track record of assisting these developing countries in very key infrastructural projects and since their interest concession is cheaper than most creditors’ rates, they are the go-to-guys! In those developing states, similar clauses of waived sovereign immunity are in place as well as terms and conditions where the borrower defaults in servicing debts – save for military or diplomatic assets, China recovers its loans by taking hold of the infrastructures of its borrowers as contained in the commercial loan agreement. Even this sounds typical; clearly mainstream.

Well, it is Beijing money because there seems to be enough to loan. As a matter of fact, the loans advanced are often in large figures that it takes a miracle for developing countries to eventually honour its debt at the maturity date of the loan deal. With the too much loan facility in Beijing’s fat purse, developing countries often fight their temptations a short while only to give in to the possibility of concluding big projects that could propel economic activities and swell the Gross Domestic Product (GDP) enough to offset its indebtedness to the Chinese Government. Most times, and from recent ordeals, the borrowers regret their choices. To cite just few examples, in June 25, 2018, the New York Times reported the fate of Hambantota, Sri Lanka. With the rate of Sri Lanka’s debt ballooning under Mr Rajapaska, Hambantota port was handed over to the Chinese Government and 15, 000 acres of land around it for 99 years in December. Scary too is the 2006 loan to Tonga sought to rebuild infrastructure where from 2013 to 2014, the country suffered a debt crisis. The EXIM Bank of China, to whom the loans were owed, did not forgive them. The loans claimed 44% of Tonga’s GDP. In Zambia, the EXX Africa’s research shows how the Chinese Government seek control over Glencore’s Zambian operation Mopani and the country’s largest producer, First Quantum Minerals; the research shows that the Chinese firms are seeking to capitalize on the liquidation of Konkola Copper mines, a subsidiary of London-based Vedanta Resources (Zambia is Africa’s second-largest producer of copper). It would appear that the victims could not stop borrowing the Beijing money; sad as debt reliefs, renegotiation and restructuring proved abortive as China ever plays hardball. This is more than a BRI; the questionable motives of China should preach caution to the Nigerian Government.

The Beijing money has circulated in Nigeria since 2002 to 2018 and, according to one of the legislators, Ben Igbakpa, the EXIM Bank of China is Nigeria’s biggest bilateral creditor in nearly two decades having lent Nigeria a loan facility of $6.5 billion (N1.9 trillion) since 2002. As at last count, Nigeria is recipient of 17 Chinese loans to fund different categories of capital projects – Nigeria would still be servicing the Chinese Loans till its maturity date come 2038. With cheap concession rates and Nigeria’s trust in its debt servicing, the Government continues to borrow. The real question is ‘can Nigeria truly repay?’ Answering this, Dr Bongo Adi, the Director of Centre for Infrastructure Policy Regulation and Advancement (CIPRA), Lagos Business School, in an interview with Channels TV, had this to say:

“We have to look at the total debt and the capacity to repay not just to China but to our creditors. Our Debt independent revenue is at 96% now. That means for every N1 we earn, 96 kobo is used to refund loans. That has passed the critical threshold.”

“What it means is that we lack the ability and we don’t have the headroom anymore to repay because our independent revenue has been strangulated by our enormous debt hanging over the Federal Government as it stands now.”

If we do the math correctly, it would be agreed that we are not generating revenue that can be recycled; we are getting revenue for the purpose of offsetting loans. From Dr Bongo Adi, China is not our only creditor yet the statistics from Naira metrics, as at 21st May, 2020, showed that Nigeria owes China about $3.1 billion (more than 10% of the $27.6 billion external debt stock). In fact, should the $5.3 billion loan advancement from the EXIM Bank of China come to fruition in October, 2020, the debt further stockpiles. Experts believe that Nigeria will be unable to repay the large credits upon maturity date and a layman would be spot on in tying our inability to honour debts to lack of accountability, transparency, and responsibility to refund its loans. Slowly, we could be walking into the Chinese debt-traps – caution is the message as a reflection on the analysis of Nigeria’s sovereign debt sustainability (with the harsh realities brought the polity by the pandemic; the sudden crash of oil price; and the looming recession reported by the World Bank) shows that we are likely to be incapable of generating surpluses in order to meet debt payments.

THE CURIOSITY

The debt-trap diplomacy is the deliberate extension of excessive credit to a debtor country with the alleged intention of extracting economic or political concessions from the debtor country when it becomes unable to honour its debts. It is characterized as being exploitative and is mostly associated with China. The China’s loan deal has been characterized by the World Bank and International Monetary Fund (IMF) as not transparent. There is need to have a microscopic view of the similar traits of a typical debt-trap situation in many affected developing nation-states with the recent developments in Nigeria. It is curious how the National Assembly were bypassed by the Government to secure the commercial loan agreements which clearly ran contrary to s.21 (1) of the DEBT MANAGEMENT OFFICE ACT ESTABLISHMENT (E.T.C.) ACT 2003 which provides that:

“No external loan shall be approved or obtained by the Minister unless its terms and conditions shall have been laid before the National Assembly and approved by, its resolution.”

It is curious how during the probe, relevant documents pointing to the details, clauses, terms and conditions of the commercial loan agreement, were not before the Housing Committee conducting the investigation. It is curious much that the sole interest of Rotimi Amaechi, the Minister of Transport, was in the postponement of the inquiries till sometime in December or January when the loan must have been granted. He feared that further probing would make China withdraw its earlier promises of $5.3 billion loan advancement when the real fears are whether we are ready for a recession as our economy is splintered from the recent shocks. It is curious how China Civil Engineering Construction Corporation (CCECC Nigeria Railway Company Limited), a subsidiary company to China Civil Engineering Constructing Corporation, remains the sole contractor for the railway projects despite its being blacklisted by the World Bank on grounds of fraud and corruption. According to Naira metrics and Business Traffic, 5 other Chinese firms have been blacklisted by the World Bank. It is indeed curious that notwithstanding the counterpart funding, agreed by the Nigerian Government is that since China was financing the projects through the CCECC, the contractors had 100% execution right on them – this means that the materials and skills are imported from China thus undermining local industry and jobs. The Beijing money funds the project, creates a noncompetitive bid such that only its own company executes the projects. If the creditors get the 100% execution rights such that our natives cannot be entitled to employment opportunities to bring a boost in GDP, then it is not out of place to inquire the side the BRI is on.

FEARS – IN CONCLUSION

With 17 loan agreements financed and executed by China in Nigeria, a default means we lose strategic assets. While borrowing is a form of economic activity that could lead to a futuristic surplus when the borrowed money commissions lucrative projects, borrowing is a pathway to sovereign debt unsustainability.

Come August 17, 2020, there is need for the Law makers to “calm down” and consider the commercial loan agreements entered between Nigeria and China because the ripple effects of excessive credits cum an implosive bad economy could birth an economic colonialism as seen in Sri Lanka, Zambia, et al. A country is never independent when deprived economic freedom. The message is caution!

REFLECTIONS ON ORDER 6 RULE 4 OF THE COURT OF APPEAL RULES, 2016; MAKING A CASE FOR AN AFFIDAVIT OF NOTIFICATION

1. INTRODUCTION

This paper takes an all-round look at the implication of interpreting Order 6 Rule 4 of the Court of Appeal Rules, 2016 (hereafter The Rules) in literal terms. It might interest us to know that if we take a closer look at its construct, there is a strong possibility we conclude that it births an absurdity. In our short time here, we shall think on the cure to its absurdity as well as attempt making a case for an affidavit of notification in a situation where an appeal is out of time.

2. ORDER 6 RULE 4 – THE KNOWN TO UNKNOWN

The popular notion shared by many trial lawyers and authors remains that all appeals, by way of rehearing, shall be brought by way of notice of appeal and filed in the registry of the court below vide Order 7 Rule 2 of The Rules. Also, it is the practice that where an interlocutory decision as of right or that requiring leave of the court is to be challenged by an aggrieved party, where brought within time i.e. 14 days, it should be filed at the court below first. It is trite that once out of time, the court below becomes without vires to entertain the application for enlargement of time within which its own decision can be appealed against; the court below lacks jurisdiction as only the court of appeal has the vires to grant the application for enlargement of time when satisfied that the appellant has shown good grounds why the appeal was filed out of time and why the grounds of appeal should be heard vide Order 6 Rule 9 (2) of The Rules. It is equally the position that interim orders pending appeal, such as stay of execution and stay of proceeding, must be filed at the court below, first – some authors tie this to 0rder 6 Rule 4 of The Rules and it is even believed, albeit erroneously, by some trial lawyers that all applications pending appeal must be filed at the lower court before bringing or filing the application at the registry of the court of appeal. It is to this unknown we turn.

Order 6 Rule 4 reads as follows:

Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the court below. (Words underlined mine for emphasis)

Instructive from the above underlined words are “wherever under these Rules” and “application may be made either to the court below or to the court”. A literal interpretation of these set of instructive words would mean The Rules provide for applications that could be made to the Court below or to the Court of Appeal but a cursory look at The Rules shows that it does not provide for or state, for example, interim orders pending appeal such as injunction pending appeal, stay of proceeding or stay of execution. It neither provides that interim orders, for instance, must first be brought before the court of first instance. The question then becomes, where can one ordinarily source applications that could be made either to the court below or the court of appeal? The answer is within reach. Say we further consider the source of applications like stay of proceedings and stay of execution, there are various court laws that give the courts below the power to entertain and rule on interim orders pending appeal as properly spelt out under the rules of court of those courts. For example, s.13 of the Federal High Court Act allows the Federal High Court to grant injunctions and its rules vide Order 32 Rule 1 vests on the court the power to entertain and rule on applications for stay of proceedings or execution pending appeal. Sections 16 and/or 18 of the National Industrial Court Act 2006 vests upon the Court the power to grant injunctions and urgent interim reliefs which a stay of proceedings and execution ordinarily falls under; its rules has under Order 64 Rule 8 of the National Industrial Court Rules, 2017, the express conferment of the court’s vires to entertain and decide applications for stay of proceeding and/or execution. In fact, all high court rules provide for the power of the high court to rule on interim reliefs pending appeal. In answering the question formulated above, “where can one ordinarily source applications that could be made either to the court below or the court of appeal?” while it appears that the pieces of legislation aforementioned merely vests on those courts the powers to determine interim orders without stating that the powers it possesses in that respect may be made even at the court of appeal to indeed satisfy the phrase “wherever under these rules an application may be made to the Court below and the Court” vide Order 6 Rule 4 of The Rules, s.16 of the Court of Appeal Act best resolves the aspect that deals with “may be made to the court below and the court” where it provides inter alia that the Court of Appeal may make an interim order or grant any injunction which the court below is authorised to make or grant. This resolution of the aspect dealing with “may be made to the court of appeal”, when read in conjunction with Order 6 Rule 4, shows that interim orders pending appeal such as stay of proceedings should be made to the court below save where there are circumstances making it impossible or impracticable to so do.

Unresolved is the aspect of “wherever under these rules”, and it is because all applications which could be made to the court of appeal cannot be found in The Rules that one must read and interpret Order 6 Rule 4 by ignoring the phrase “wherever under these rules” as The Rules does not provide for the bringing of applications both in the High Court and the Court of Appeal – For instance, application for bail, stay of execution, stay of proceeding, to mention a few, are provided for either in specific Acts or Laws or under the inherent jurisdiction of the courts and as we have seen, it is the Act or Law that makes the powers concurrent between the lower court and the court of appeal such that “may be made to the court of appeal” vide Order 6 Rule 4 becomes satisfied.

Reflecting on the apparent absurdity of the literal interpretation of Order 6 Rule 4 of The Rules, the Supreme Court in MOHAMMED V OLAWUNMI [1993] 4 NWLR (Pt. 287) 254 @ 262, on the construction of Order 3 Rule 3 (4) of the Court of Appeal Rules 1981 (now Order 6 Rule 4 of the Court of Appeal Rules 2016) held as follows:

“Therefore, in order to avoid absurdity, Order 3 rule 3(4) should be interpreted as meaning “wherever an application may be made either to the High Court or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal except there are some special circumstances, which make it impossible or impracticable to apply to the High Court.” (Underlined words mine for emphasis)

This interpretation by the Supreme Court indeed clears the absurdity as it replaces the construction of words “wherever under these rules” with “wherever an application”. It is submitted that the remaining set of words underlined still buttresses what has been said earlier – the applications which may be made to both the court below and the Court of Appeal must be made to the court below save for special circumstances. The implication of the construct is such that where a specific Act or Law providing for the bringing of an application before the Court of Appeal does not make for such provisions to be brought to either the Court below or the Court of Appeal, it would be absolutely needless to make the applications at the Court below. A typical example is bringing an application for bail pending appeal. It would be agreed here that the various high court laws with its rules do not enjoy the jurisdiction to entertain an application for bail pending appeal. The only specific Act that provides for the bringing of such application is s.29 (1) of the Court of Appeal Act. For ease of reference, the said section will be reproduced hereunder:

“The Court of Appeal may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.” (Underlined words mine for emphasis)

Beyond a doubt, from words underscored, only the Court of Appeal has the vires to entertain an application for bail pending appeal. The effect is such that it would be incorrect to read an application for bail pending appeal into Order 6 Rule 4 of The Rules as the particular application is not one that may be made at either the Court below or the Court of Appeal. By way of re-emphasizing, not all applications can be trapped by Order 6 Rule 4 as one must first ascertain whether those are applications that may be made to either the court below or the court of appeal such that the application may or may not be brought before the court below, first.

3. MAKING A CASE FOR AFFIDAVIT OF NOTIFICATION

Having flowed from the known to the unknown, this segment may pose a bumpy transition especially after one must concede to the fact that there is no such application or affidavit shaped in form of an affidavit of notification. A strange application it would seem but the real question is, “upon what circumstances can this strange application be a true reflection of prayers sought by an appellant? Not to worry, an instance would be smoothly sketched.

Suppose an aggrieved litigant intends to appeal an interlocutory ruling but is now out of time, it is settled law that such applications can only be filed at the Court of Appeal since the court below lacks jurisdiction to entertain same. Say the aggrieved litigant has successfully entered his notice of appeal, it is equally settled law that subsequent applications be made to the Court of Appeal and not the Court below as the lower court becomes functus officio to so determine applications after the court of appeal has become seised of the matter to be re-heard. On the strength of this settled law, the aggrieved litigant filed a stay of proceeding alongside his notice of appeal at the court of appeal but is in a quandary wondering how best to notify the lower court that he has entered both the notice of appeal and stay of proceedings at the court of appeal since he appealed out of time. He has gone by way of an affidavit of notification to put the court below (trial court) on notice that His Lordship be aware of the developments but the court is unshaken and says failure to come by way of motion must see that proceedings go on – long and short, a preliminary objection is taken despite a pending appeal.

It must be understood that it is reckless to hold that all applications come by way of motion. In fact, one must wonder why same preached digest does not extend to applications for adjournments or applications to stand down a matter, for example. It is curious what such a motion must be headed with or whether the appellant (aggrieved litigant) is supposed to be praying the court for an order to further comply with the constitutional hierarchy of courts. In the case of VASWANI TRADING CO. V SAVALAKH & CO. (1972) ALL NLR (Pt. 2) 483 and MOHAMMED V OLAWUNMI (SUPRA) the Supreme Court held that where a judge of the High Court is aware of an application in a higher court like the Court of Appeal in a case before him, but deliberately chooses to ignore it, it is an attitude which borders on judicial impertinence and is an affront to the authority of the Court of Appeal. In other words, the question is whether the court was aware? It is always the position that the courts should abhor technicalities – the interest the affidavit of notification was to serve was to notify the court below and it is always commendable that the courts be more interested in confirming such developments by asking for the notice of appeal, examining appeal numbers on the stay of proceedings, to mention a few. It will amount to an affront to have been notified “strangely” of a pending appeal and a stay of proceeding yet working stubbornly to see that the matter proceeds. It is in this sense that an affidavit of notification could be used should one find it altogether bizarre to bring such notification of developments by oral means.

4. REFLECTIONS

It is the position, as abovementioned, that not all applications to the Court of Appeal must first be brought to the Court below as one can only determine the applicability of Order 6 Rule 4 of The Rules upon examination of the specific Laws or Acts providing for such applications and whether the applications “may” be made either ways.

It is the position of the writer, also, that one can rely on an affidavit of notification to make the trial court aware of a stay of proceeding entered at the Court of Appeal due to an appeal entered out of time. Since such affidavits are facts which are relatively harmless, it would be chaotic for any court to disregard same as though to foist a fait accompli on the Court of Appeal.

BILE COMMENTARIES

Crying inside because the rapists should not find my hideout

Defiled and murdered but eye witnesses scared of the men in uniform

Twelve years and defiled by eleven perverts! They spit at the mess. They curse with their mouth

To fight with placards and I am another corpse… the silence of leaders, the norm.

…………….

Injustice, insecurity and inhumanity! The burden of things we are into, things we shoulder about

To dream? A prosecutrix’s breasts for the sucking. The children of circumstances! You’re welcome

Called weak and vulnerable to abuse by men they birthed. Protest? No, just sit it out

Ignorance said it was short skirts or no company in the pew; ignorance won. More reasons to come.

………………

Stashing bile words within, consumed by the overwhelming sad events

Signs of the end of the world but not a way to see My God

Silence still! A knife in a rapist’s chest and I am reminded with cuffs, “self-help isn’t lawful!”

…………………

The girl child living in bondage! Not scared of a virus but the bigger problem man invents

Rape of all sorts! Brutal torturing until a submission! The gory images, My God!

Silence still! The system’s gone cold porridge. The recent catty historical events, a mouthful.

MARITAL RAPE IN NIGERIA — A RIGHT WITHOUT A REMEDY

THE INCIDENCE

There is a story. A narrative we may already be familiar with. It is a sad tale involving a married teenager, Salma Hassan “17”. You see, Salma Hassan confessed to killing her beloved husband in their home, Bauchi State. The dagger she used on his chest was recovered by the police. Why did she do such evil? That is not up for riddles, really. Her husband needed to consummate their blessed union that very night but Salma Hassan claims she had no idea that sexual intercourse was part of her marital obligations. She admits denying consent. She asserts that she got physically assaulted for denying her husband what we know as “his right to consortium”. When things got ugly, Salma Hassan swung a knife across his face sending the “back-off” signal. Her beloved husband dared his chi and Salma Hassan had cause to thrust her dagger in some delicate part of his chest. Rushed to the hospital, but the rest of him is history. It is to the quasi-chattel status of women that this work would consider in bits, briefly.

THE BAD LAWS

Bride price (the million dollar bride list especially) creates an ugly picture of women being items to be bought in the market by the highest bidder – highest bidder because there is the need to obtain parental consent. Whether parents’ blessings are overrated is a topic for another day. Uglier, a woman is a prospective married woman with a price on her head thus attracting bounty hunters from all parts of the earth – these days, persons of same gender status dare to dream of the bounty in Nigeria. Yes, customs and traditions are mammoth practices we inherited and must respect – does not mean we cannot tweak it here and there to bringing it in conformity with s.35 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (hereinafter referred to as CFRN 1999) which vests fundamental right to personal liberty on citizens (women included). The “selling” of women by their parents, births this quasi-chattel status of Salma Hassan as there is this underlying owner-slave status created when the love waxes cold – it is admitted that the choice between personal liberty and property sometimes present difficulty especially remembering the case of ONWUCHEKWA v ONWUCHEKWA [1991] 5 NWLR (Pt. 194) 739 where women were referred to as properties of men.

Another bit is the issue of consortium. There is nothing wrong with this right to marital company and affection, ordinarily. It expressly means that Salma Hassan’s husband had a right to demand sexual connection from his newly wedded bride. The inquiry becomes “does she have a right to say NO?” The thing about “right to personal liberty” means Salma Hassan had a choice to consent to sexual pleasures. If the refusal to consummate was wilful and persistent, then a petition for dissolution of the marriage was a remedy for the late husband vide s.15 (2) (a) of the Matrimonial Causes Act (hereafter referred to as MCA). The right to consortium does not rank higher than the right to personal choice of the other spouse and if the deceased had known better he would have slept that night calling “the swung knife across his face” a little marital misunderstanding. Take home that a basic liberty of a person ranks superior to property and contract (a contact to marry).

A bit more on the unravelling, is the question whether Salma Hassan enjoyed an independent legal personality upon marrying her deceased husband? It is necessary to understand that it would be a misconception to hold tenaciously the biblical account of a man and a woman becoming “one” in every sense such that a husband cannot kill his wife and be charged for murder; rather he kills his wife to justify the sin that is suicide. Fallacious it is! The true position is that Salma Hassan enjoyed her independent legal rights and protection under the Constitution. Why this comes up is because this misconception was impliedly told the society from the wordings of pieces of legislation that would be produced hereunder.

Section 6 of the Criminal Code (Nigeria) reads:

“unlawful carnal knowledge” means carnal connection which takes place otherwise than between husband and wife.

Section 357 of the Criminal Code (Nigeria) reads:

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape.

Section 282 of the Penal Code (Nigeria) reads:

A man is said to commit rape when he has sexual intercourse with a woman, against her will, without her consent, with consent obtained under duress, et al.

It is true that from sections 357 and 282 of the codes, a woman cannot be said to rape a man. Admittedly, the provision is archaic – and to the entire boy child, it is regrettable that the Violence Against Persons (Prohibition) Act 2015 (hereafter referred to as VAPPA 2015) which expands the scope of rape is applicable solely in the Federal Capital Territory. The point that is most relevant is Section 6 of the Criminal Code which excludes possibility of rape between spouses. It is regrettable that marital rape is not an offence known to law save in Lagos State vide its Domestic Violence Laws. Yes, it is for that reason that The Law wants us to disregard the viewpoint of “an attempted rape of Salma Hassan” and see her as a murderer.

The mischief in section 6 is that it aids the rapists or sociopaths who find pleasure in applying brute force to secure a sexual connection – the connection not being a meeting of minds but engagement of the private organs for a spouse’s selfish gratification (this law opens its doors to rapists who need a form of legal protection via marriages to bask further in their evil habits of raping women). You may not know this but section 282 (2) of the Penal Code, applicable in Northern Nigeria, says it is not a case of rape where a man has sexual connection with his wife forcefully provided she has attained the age of puberty. One may say the deceased husband had a right under the law to forcefully consummate the marriage and her ignorance of the law is not excusable. But it is unintelligent the treat a constitutionally guaranteed right to choice or liberty as having no say in this matter. Basic liberty would mean that Salma Hassan is not a property to be tossed, used at will and disposed as at when due. The right to privacy would mean Salma Hassan’s marriage to the deceased did not mean she lost a say over her body. The above constitutional provisions must ensure that s.282 (2) (supra) dies a natural death to the extent of its inconsistency with our Constitution.

THE FATE OF SALMA HASSAN

Some report that she was 17 at the commission of the offence, others say 18. Well, it is not exactly going to change the outcome should Salma Hassan be 17 or 18. Understand that under the law, a Juvenile Court can only try a young person who is under the age of 16 (sixteen) years notwithstanding the definition of “young persons” – a young person is a person who is above 14 years but below the age of 18. If Salma was 16 years at the time of commission of the homicide, she would be found guilty and detained at the pleasure of the governor or the president (as the case may be) vide MODUPE v STATE (1989) 9 SCNJ 1. To be mentioned is that Juvenile Courts lack jurisdiction to try offences where a child or young person is charged with homicide. Thus, if Salma was 16 years, she would have been tried in regular courts save that all the rules applicable to the sentence of a young person will apply vide s.3 of the Children and Young Persons Law, Kwara State, for instance (later referred to CYPL). If at the age of 17 years, there is a commission of a capital offence, then the outcome takes a twist. At 17, Salma Hassan can be found guilty of a capital offence and sentenced to death vide GUOBODIA v STATE [2004] 6 NWLR (Pt. 869) 360 – time of commission, not conviction is what determines the relevant age of the young person: See UWA v STATE (1965) 1 ANLR 356.

The reality becomes that Salma Hassan will be tried in regular courts for culpable homicide and the defence like “self-defence” may not cut it if we consider the fact that a man can forcefully gratify himself off his wife vide s.282 of the Penal Code (supra) – effect is, she cannot claim to be defending herself from a threat to life or unlawful force by her deceased husband since he was doing all he had to do within the law to consummate his sacral marriage. As a result of this bad law, Salma Hassan is in a very precarious situation and there is need to pick placards carrying “justice for Salma!”

THE WAY OUT

1. Lagos has recognized marital rape. All other states should. The VAPPA 2015 should be domesticated in all 36 states if we must protect the girl child and the boy child from sexual violence. If we have this law reform, Salma would clearly have a day in court.

2. If the legislature will not see to domesticating the VAPPA 2015, then the courts must ensure judicial reforms are in place. It was held in ORIANZI v A.G., RIVERS STATE [2017] EJSC (Vol. 60) 1 S.C., inter alia:

There cannot be a right without a remedy for want of right and want of remedy are reciprocal. The maxim ‘ubi jus ibi remedium’ is the latin rendition of the principle. The maxim is so fundamental to the administration of justice that where there is no remedy provided by common law or statute, the courts have been urged to create a new one. The courts cannot therefore be deterred by the novelty of an action. In other words, the law is an equal dispenser of justice and leaves none without a remedy for his right. Wherever there is a wrong, there must be a remedy to redress that wrong. Justice must not only be done but must be seen to be done.

It can be argued, under distinguishing, that from the penal statutes relied upon above, there was never a recognized right for Salma Hassan as she owed a duty to her husband to consummate the marriage. Yes, she had a duty and she can as well choose not to comply with the duty as she had rights to independent choices under the Constitution. Thus, Salma had a right to say “NO!” and the laws on rape excluding a married woman from persons who can give consent to sexual intercourse, is ridiculously insidious. Marriage is not a prison; “for better or for worse” does not mean a married woman should succumb to modern-day slavery! We have seen in LABOUR PARTY v INEC & ANOR (SUIT NO. FHC/ABJ/CS/399/2011) as well as SENATOR KALU’s case, the power the court wields to render null and void provisions of laws inconsistent with the Constitution. Salma needs justice and the society, our girls in particular, would indeed benefit from this judicial reform as it offers protection and recognizes the fundamental right of women to privacy and basic liberty in a world where it is constantly marginalised.

3. It is about time we stopped incidence of child marriage in Nigeria. It is sad that in Nigeria, there is no marriage age. Section 21 of the Child Rights Act 2003 (hereafter referred to as CRA 2003) pegged age of marriage at 18 years but it unfortunate that the Act borders on “child welfare” rather than “formation, annulment and dissolution of marriages” which is contained in item 61 of the 2nd schedule to the CFRN 1999 – the Marriage Act and the Matrimonial Causes Act, being the relevant laws made pursuant to the exclusive legislative list of the Constitution, failed to give the age of marriage. The effect of this is that it breaches the constitutional arrangement for CRA 2003 to make marriageable age in Nigeria. It is hoped that a legislative reform be in place to effect the intendment of the drafters of the CRA 2003 in the Marriage Act.

Item 61 was clear enough to restrict the law making powers such that the National Assembly cannot make laws as to formation of marriage and give age of marriage in the process with respect to Islamic Law and Customary Law. But it should be stated that due to the enormous child marriages springing up every now so often from customary practices and traditions – a wife of 13, for instance, will be expected to consummate a marriage and it would not be a case of defilement since s.6 of the Criminal Code excludes ‘husband’ and ‘wife’ from persons suable for unlawful carnal connection – some states have had cause to prescribe marriageable age. Some of the laws and their ages are s.2 (1) Age of Customary Marriage Law, Cap. 5 Laws of Rivers State, 1999, Girl-Child Marriages and Female circumcision or Genital Mutilation Law, No 2 of 2000 (Cross River) and s.3 Harmful Traditional Practices Against Women and Children Law, No. 10 of 2001 (Ebonyi) which peg the age of consent at 18 years. It is time all states have similar laws to protect the girl child from becoming subjectless properties or quasi chattels.

FEW WORDS

Salma Hassan was almost raped. She should be getting all adulations rather than seeing the chains or knowing prison bars. She is an example of a woman who attained liberation from slavish practices and the knife to her deceased husband’s chest symbolizes the voice of a true black woman. Justice must be seen to be done!

A PERSON IN LAW – A PAPER EARMARKED FOR DELIMITING JURISPRUDES’ THEORIES OF LEGAL PERSONALITY

INTRODUCTION

From the onset, it is almost a consolation that papers of this nature must succumb to the overriding enigma that this discourse champions. There is the concern that the above topic attracts phrases with unending legal philosophies which must be addressed first hand before dabbling into possibilities of unravelling “the person in law” and drawing needful demarcations from the entries of Jurisprudes’ theories of legal personality.

This paper will show that the theories of legal personality bear distinct traits of a corporate personality such that a unification of their various key elements helps explain the conception that is a corporation in law. The denials and arguments of jurists from each school of thought is a lot unnecessary if we consider the fact that the idea of legal personality of corporations is a creation of law tied basically to convenience, public policy, and no more. Beyond the theories, inquiries will be had to miscellaneous considerations of legal personality and it is most likely our questions stay unanswered.

LEGAL PERSONS

A Person in law or a legal person is a subject-matter vested with jural relations. According to Professor Adaramola, “the phrase ‘legal personality’ means the capacity of a human being or a juridical entity to be either a subject or an object or both of jural relations.” To sum it according to Sir John William Salmond, so far as legal theory is concerned, a person is any being to whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not. No being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.

It is not exactly easy to say these definitions are universal especially when one considers the fact that while Salmond opines that there is a difference between a natural person (a being to whom the law attributes personality in accordance with reality and truth) and legal person (a being, real or imaginary, to whom the law attributes personality by way of fiction, when there is none in fact), Professor Dias denies the separability of same such that one is not a human being in law where he lacks the legal personality being rights and correlative duties. The relationship in their opinions lies in the fact that Salmond in fact concedes that a man incapable of rights and duties is not a person in law.

It should be examined here, the legal status of unborn persons, dead persons and even beasts as there are misconceptions about their statuses every now and then. An unborn person is not a legal person strictly speaking. The foetus is regarded by a legal fiction as already born in accordance with the maxim, “Nasciturus pro jam nato habetur.” The unborn child could own properties although the ownership hangs on a contingency of actual birth. Upon actual birth, the child becomes clothed with legal personality. By actual birth there is a requirement that it is a living child such that a stillborn cannot be said to be a legal person. There are fine margins to some implications or complications during and after pregnancy and we would represent some of them in a number of paragraphs.

There is an eventuality where a pregnant woman is reckless as to ensuring her unborn baby is free from a rubella virus, for instance, which her doctor informs would ultimately lead to the deformity of the foetus when delivered. Should the pregnant woman agree to terminating the life of the child, the abortion laws will have her criminally liable – it would not be treated as a case of culpable homicide simply because the foetus never had a chance of being born alive. To stretch a bit more, if the foetus was terminated on the counselling of the doctor in such a way as to be read as “incite”, but the termination was not as to abortion but infanticide, it has been held that to incite someone to murder a child when it is born but which at the time of inciting is unborn, amounts to soliciting to murder a ‘person’. It would appear that there are traces of legal personality even when the child is unborn even as one must admit the decision was value-judgment driven. A typical jurisprudential inquiry thus lie in yet another consideration – what becomes of the criminal liability of the mother where the child in the woman is subjected to infliction of wilful or negligent injuries by reason of which it dies after having been born alive? Indeed, the mens rea separated by a disjunction leaves the two possible outcomes as “murder” or “manslaughter”. It is a typical case of infanticide because the baby lived even if for a split second; the concept of legal personality can vest in a child for a second and part company where there is no trace of life. The implication is that the conception of legal personality is not one to follow the dead to his grave as it relishes in abstraction awaiting another foetus to be born alive to host the jural relations it embodies.

The dead men, in like proportions, are not legal persons. It is an age long tradition De mortuis nil nisi bonum that of the dead, one should speak only of good things. The dead do not bite; they are most definitely not persons in the eye of the law. The law however recognizes three concerns of the dead men. These are a man’s body, his reputation, and his estate. Even these anxieties of the living that travels beyond the period of their death can in no way mean that to these specific considerations, the dead men bear the status of legal persons. It is the position that the rights and duties in the specific considerations here are vested in the beneficiaries, successors, or persons directly or likely to be affected by a violation of legally protected interest even as it must be admitted that the law recognizes the dying wishes of a dead man on how his corpse be preserved or to whom his fortune vests. The recognition is such that though no man owns the corpse of a dead man, it remains a criminal wrong to excavate a man’s body from the ground for anatomical research or to violate upon his right to a Christian burial , for instance. To open it up, on the reputation of the dead man, it can only be punished as a libel if the defamatory remark is an attack upon the interest of living persons. It is most probably dead-on to say the law seeks to protect the interests of the living.

As for beasts, it may be hasty generalization to address them as subjectless entities but on a closer look, it cannot be disagreed that they, as things, can possess anything beyond the status of “objects of legal rights.” No, the lower animals are not legal persons even though they are thought of as possessing legal rights when cruelty is meted against them. No, the lower animals are incapable of being called land or property owners even through the medium of a human trustee. To think of a possibility where a trust can vest in nonhuman beneficiaries, will lead to the consideration of trusts for the benefit of particular classes of animals as opposed to one for individual animals. It is in this sense that the trust is legally enforceable as it becomes a public or charitable trust in the eye of the law. As we might perceive the advent of legal rights in the lower animals from the consideration of offence of cruelty against animals and issues of trusts for benefits of a class of lower animals, it would reek of a misconception to equate such rights to the status of legal personality. Salmond reacts inter alia, “…there is no occasion for such accustomed mode of thought and speech.” The duties towards animals are considered, in law, as duties towards the society itself.

MISCELLANEOUS PROVISIONS

The definitions of legal personality show the vesting of juristic personality in corporations. They are referred to as artificial persons. Artificial means that corporations are creations of man. Creation must be such an overwhelming task that even Jurists, when faced with the real questions of proffering solutions to the controversies surrounding man’s creation, went astray in their legal philosophizing and causing more problems along the line. That corporations are artificial persons may apply fittingly to corporation aggregates but leave behind complications when a corporation sole is considered.

A corporation sole is a person in law distinguished for perpetuation and personification. This person is likened to an old soldier who never dies; there are incumbents who come and go but the spirit of the sole is for eternity save occasions where the sole comes to an end by sorrowful or some other loud circumstances – an instance would be a corporation sole like the Traditional Monarch which is a stool having kings sit on her to rule the land. Should the monarch be disregarded by the people such that a new system of government is accepted, does not the spirit of the sole join its ancestors? Or does the spirit take another form such that it becomes the corporation sole should the new system of government be something of same fashion with the British Crown? Just so we do not become guilty of creating more problems, there is need to segue into the concept of corporate personality.

The concept of corporate personality of a company was considered in the case of BULET INT’L (NIG) LTD & ANOR v. OLANIYI & ANOR where Kekere-Ekun, JSC held as follows:

“The concept of corporate personality was established a long time ago in the case of Salomon v Salomon & Co Ltd. (1987) AC 22 to the effect that a company is a legal entity distinct from its members. It has a distinct legal personality and is capable of suing and being sued in its corporate name. A company is a different person altogether from the subscribers to the memorandum and is neither an agent not trustee for them. It also has the capacity to enter into any agreement in its corporate name… A subsidiary company has its own separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa…”

The implication of the above is such that no person can claim ownership of a company. It has been held that a company continues in existence despite the loss of all its shareholders. It is this view that better strengthens Gower’s explanation of a company’s independence – according to Gower, where all members of a private company got killed by a bomb while at a general meeting, the company survived, “not even a hydrogen bomb could have destroyed it.” It is however doubtful whether the position in Re Noel’s Case and Gower’s explanation is the legal position in Nigeria especially as a combined reading of Ss.18 and 246 (1) CAMA reveals that a company must have at all times, at least two directors and shareholders. Gower’s explanation of a company’s independence with that example even leaves one in a quandary contemplating, maybe weakly, the possibility of an exaggerated viewpoint as his position was not supported by case law.This artificial person with legal personality is demonstrated in such a way that where a white man puts in place a covenant running with land to read “no negro occupant”, it would not be a bar to a negro company should it choose to acquire the premises. Certain worries about the effect of registration of a company may start with its very inception. The certificate of incorporation seems to be the instrument fuelling the company as a going concern if one considers that there would be a body corporate unknown to law should the certificate be subject to ruins. While the Act was clear on winding-up as the demise of the company, little emphasis was devoted to the certificate of incorporation. One can take the effect of losing a certificate as the death of a company pending when another certificate is issued. While the process of resurrection is smooth in the UK courtesy the Companies House, it may get a lot rough in Nigeria bringing a company back to the land of the living. Indeed, it can be pondered whether companies rank the status of cats having nine lives.

An examination of s.38 of the CAMA, on the powers of companies, vests all the powers of a natural person of full capacity on companies. The imperfection of man’s creation subtly breeds frightening frictions. It is agreed that companies survive its promoters who shake the world to see to its formation –it survives shareholders and the board of directors so long as not below statutory minimum. What evokes worry in this later section is the fact that the powers of a human person is given to companies even as it given powers to live beyond humans. To call a company a spirit may cause an aggressive rubbing of fingers on chin but to say it dabbles into the metaphysical may be a concept within the realm of logic. It is this quandary that has jurists unsettled whether the company took man’s personality or his human nature. Well, since the powers of the companies can be controlled by its memorandum of association or any enactment, overthinking the logic is a sure overkill.

There is the issue of “lifting the mask” of the corporation. It was always inevitable for corruption or illegality to spring up the moment we chose dogmatism over a flexible understanding of our own creation. The façade of the principal-agency relationship between “the company and its agents” grew on us that with the pungent injustice desperate majority stakeholders doles out on minority stakeholders, the corporate veil had to be lifted to pick the culprits and sometimes, spare the company, rather than seeing the company as a legally protected idea which must live by the codes of corporate governance especially as bordered on corporate social responsibility.

While we must not quibble over the common law and statutory imprints on lifting the corporate veil, there is this likely occurrence, in fact, that could cause holes in our legal principles. It is dead-on to say the doctrine of “lifting the veil” of corporate personality envisages that only the conduct of a select individuals is looked at with a view to imputing it to the corporation. What then becomes of the law when those individuals who commit grave illegality move over to company X? It is wondered whether Company X which has no relationship with the former company at the receiving end will have to lift its veil to fish out those individuals who in fact did it no wrong. The procedure may be a lot marred – so the suffering company lifts to realise the defaulters who have resigned and are employed in X. Then X will have to lift its veil despite the non-relationship or lack of principal-agency relationship between both companies. Does it not become more difficult where the defaulters are not even directors or in influential positions at Company X to warrant their conducts being considered since they do not constitute its class of ‘select individuals?’

About the corporation’s juristic personality, it should be said that some corporations are products of incorporation as others originate from statutes – public corporations. The statutory bodies bear a further demarcation between “bodies with corporate personality” and “bodies without corporate personality”. It is curious how nationalisation as the greatest social change would allow for set-ups of certain public corporations without vesting abilities to sue and be sued. Amidst the worries that an existing company becoming nationalised may run out of the good books of a president-elect or become a political or economic tool, there is the concern that the non-suability status does not fall in line with the tenets of democracy. It is for this reason that the decision in KPEBIMOH V BOARD OF GOVERNORS, WESTERN IJAW TTC must be appraised. Here, it was held that an “unincorporated body, created by statute, which is empowered by statutes to do certain acts which can result in injury to others must impliedly be taken to have the power to sue and be sued for those acts.” The decision is a lot reasonable.

Seguing to the union called marriage; it is said, in law, that we become one person. Nothing more than this, if imagined, downplays the effectiveness of ‘legal persons’ although such an expression was held to be a misleading expression such that taken lightly would imply that there could never be murder of one spouse by the other, but only a form of suicide. It is reasoned as a clumsy way of expressing the special rules governing a husband and wife. It is for suability status that in LION OF AFRICA INSURANCE CO. LTD. V MR AND MRS ESAN it was held that as not proper for a married couple to sue as Mr and Mrs Esan but should sue in their personal capacities as individuals and jointly as “Mr A and Mrs A” for instance.

Certain difficulties emanate when we consider the status of unincorporated bodies. The difficulties are not due to a lack of case laws but in the grey areas the Justices create in deliberate attempts to avoid reconciling the unsolvable legal puzzles ever stemming from man’s imperfect creation. It is trite that unincorporated bodies have no legal personality and can sue only through accredited members in a representative action or through its executives. It is trite that even upon registration of an unincorporated body, it still does not attain the status of a legal person; it is the mischief behind this trite position that we must turn.

If we consider a trade union, for instance, it has no legal personality though it can rightly be said to be a legal entity. It is an entity recognized in law and should it be registered, it is treated still as a body unincorporate on the mere grounds that it is not duly incorporated like legal entities under Part A of CAMA, for instance. In BONSOR V MUSICIANS’ UNION it was held that a member can sue a trade union as a legal entity for breach of contract. This case creates the exception that an unincorporated association can be sued in its name by a member when it is registered on grounds of procedural convenience. It is an exception because the unincorporated bodies are fated to suffer disadvantages like each member being personally liable for all debts; group properties not held in entities name but in trust; and lack of vires for members to sue the group though he can sue individual members (as Prof. Adaramola puts it, “he cannot sue the committee or the officials as it will be construed that he is suing his agents”).

To say it lies on procedural convenience will be to consider that time should be preserved in a way that the affected member does not need to go through the hurdles of fishing out persons who were party to his misfortune and otherwise. But to limit an action in this capacity to procedural convenience will only make sense if it can be tested against other forms of unincorporated bodies that are yet to be registered. There is the argument that members of a union come and go and as such res inter alios acta new members should not be directly linked or tied to errs of past members as such matters need not adversely them having not been part of the contract or transaction, but we see the law make exceptions every now so often that the effective status of “the legal persona” becomes a non-preached whim of the courts or The Law’s tickled fancy. It is in fact not out of bounds to so hold that Lord MacDermott and Lord Somervell’s decision to rely on procedural convenience to support the fact that the unincorporated union could be sued in its name was borne out of personal bias and a lot of dogma. It is dogmatic because the grounds for which they accept the union being sued in its name was because there was also a leeway of treating its status of being registered as an extra motivation. It is dogmatic because their assertions may go with the wind should the union have not been registered. If the issue of procedural convenience is anything to go by, then it means that the Registered Union was “a near incorporate” as it shared limited characteristics with the body corporates. It is a clear case of dogma that Lord MacDermott and Lord Somervell turned a blind eye to the legal status of registered unions when in fact, they assumed the state of a “quasi body incorporate”. It is a lot dogmatic to say the Union can sue in its name but never elevated to the status of a legal person despite sharing characteristics – the ‘procedural convenience’ ratiocination could pass for “trying too hard”, with all due respect. If a trade union could be sued in tort vide TAFF VALE’s case, then the concept of legal personality suffers a lack of concreteness from the everyday rigid bias of the Courts towards associations that are legal entities but not “incorporated” – whatever the incorporated status means, lately.

REFLECTIONS ON THE THEORIES OF LEGAL PERSONALITY

In no particular order, the theories would be represented in jammed paragraphs. Remarks of the author would fall side by side the Jurists’ theories.

According to THE FICTION THEORY, the ascription of legal personality to artificial things is mere fiction. To Salmond, “…the apparent absurdity of holding that a rich and powerful joint-stock company is a mere fiction of the law, and possesses no real existence, proceeds not from the fiction theory, but from a misunderstanding of it. No one denies the reality of the company (that is to say, the group of shareholders). What is indeed denied is the reality of its personality. A group or society of men is a very real thing, but it is only a fictitious person.” This theory is very close to what a legal personality is as the real shakers of the company are persons and not some “subjectless properties” as called it by the PURPOSE THEORISTS.

This later theory is based on the assumption that ‘person’ is applicable only to human beings i.e. they alone can be the subjects of jural relations such that the “so called juristic persons” are not persons at all. THE PURPOSE THEORY runs away from reality in stating that a company is no person at all; it is a denial of man’s ability to create a person. The lack of optimism in the theory makes for needful reduction of its visibility.If we consider THE CONCESSION THEORY, the reason why it was not treated in FICTION THEORY is unknown given that the Jurisprudes in the Fiction Theory were the same propounders of the Concession Theory. Well, the main feature of The Concession Theory is that it regards the dignity of being a ‘juristic person’ as having to be conceded by the state, i.e. the Law. The Concession would mean that you are only a legal person if the State vests such personality on you and we can figure for ourselves how much power this means for one State. It is indeed the case in Nigerian Jurisprudence, and businessmen can relate how they have been extorted by the “powers that be” just in securing a licence. It is to this that a consideration of THE THEORY OF THE ENTERPRISE ENTITY becomes self-serving.

The Enterprise Entity Theorists believe that the corporate entity is based on the reality of the underlying enterprise such that without the approval by law of its corporate form, it continues to subsist. When there is an approval of its corporate form, it is a prima facie case that the assets, activities and responsibilities of the corporation are part of the enterprise – it is in fact an utilitarian theory. It makes for a smooth understanding and gives more credit to the enterprise itself. The formation is in the agreement or business plan and the approval of the State of its corporate form does not oust its independent framework as an entity – no approval means the extent of responsibility and its existence are determined by the underlying enterprise. Apparently, the underlying enterprise wields so much power that it could be called the “unsung hero” in a time where we strive to place a meaning to the conception, legal personality. Its workings are not exactly plausible but its idea is rich in taste.

THE SYMBOLIST OR BRACKET THEORY approaches the discourse from a rather general sense which could even be argued as too streamlined or narrow in conclusion. According to Ihering, the members of a corporation and the beneficiaries of a foundation are the only ‘persons’. The theory has that a juristic person is but a symbol to help in effectuating the purpose of the group; it amounts to putting a bracket round the members in order to treat them as a unit. But then, inquiries will abound as to possibilities where there is no such ‘group’ — like a corporation derived from statute books. The theorists did not have it all figured out that they left out the possible scenario where it is a traditional deity requiring the vesting of a legal personality. It is the shortage in evaluation of the concept of legal personality that makes for this paper; the writer would have preferred the theorists provided solutions but that is a lot late to wish for.

Even HOHFELD’S THEORY on procedural convenience could have been dead-on but for the inclusion of “jural relations of a large number of individuals”. The number must not be large and it would ever be non-applicable to issues like the status of Songo, Budda, and other gods.

KELSON’S THEORY is to the effect that the totality of claims and duties is the person in law thus there is no entity distinct from them. The bundled proposition will mean that the concept of ‘person’ is always a matter of law and that the biological character of a human being is outside its province. This claim is wild but there is sense in the theory in that it recognises a corporation as distinct from its members. The query is in the narrow-mindedness in understanding that the concept of legal personality transcends just what status a corporation receives by the Law.

THE REALIST THEORY opposes the concession theory as they believe strongly that just as human beings are persons without concessions from the State, then so far as groups are ‘real’, they too are automatically persons. It negates the fiction theory as it likens corporations to human being and proclaims corporations ‘have a real life’. Professor Wolff had cause to test the accuracy in speech when he quizzed: “if this were true, a contract between two companies whereby one is to go into voluntary liquidation would be void as an agreement to commit suicide.” The theory holds that the group entities are ‘real’ in a different sense from human beings. They hold that the ‘reality’ is physical, namely the unity of spirit, purpose, interests and organisation. It is this theory that ate most of the corporation façade yet failed to explain the inconsistencies of the law with regards to corporations. In fact, to talk about spirits of a group is a clear case of fiction and to hold that the company has its spirit independent of its agents is a typical case of using one fiction to strangle another fiction – thus, the realist theorists deny expressly the propositions of the Fiction Theory but uses fictional attributes to patch together their theory.

CONCLUSIONS

The dabbling into the world of logic over the true meaning of legal personality could pose inescapable jam. As Dias said, “The error lies in supposing that there should always be logic. Unless this has been understood, the varied uses of the word will only make it a confusing and emotional irritant.”

The concept of corporations having legal personality makes for ease of doing business and it is from this angle that it would be deemed a dogma to allow for partnerships to have “quasi status” in terms of juristic personality but deny some other unincorporated associations same. The problem, with respect to unincorporated bodies as having legal personality or not, may have been put to an end in the BONSOR’s case if Lord Keith did not mumble with both ends of his mouth thus failing to be the tie breaker in the already 2:2 of the five Lords. It is best said that the vesting of legal personality in persons should be treated on special basis such that on grounds of public policy, it all comes down to courts giving value judgments. The strength of this assertion stems from the fact that while one must admit that a corporation, for instance, is an artificial person, there have been strong contentions that there are many other groups not incorporated but who need to have a status beyond “a legal entity”. If we could have unincorporated bodies having suability status in some respect – and without on other grounds – the flexibility status is not good for smooth conceptualization. There is a growing need to give effect to quasi corporations and there is nothing holding the Law from vesting legal personality on such occasions.

Away from the jamming of theories, since the issue of “lifting the veil” could serve as a watchman, there is probably a remedy if there is cause to vest legal personalities on enterprises intended by persons to be artificial. A registration of such enterprise could read as a vesting of legal personality if we must avoid having to lapse into further navel-gazing.

There is ever no end to legal personality and random views or a compendium of it could be gubbins upon a puncture by superior reasoning. Thus, it is contended that the fiction theory, the enterprise entity theory, the Purpose theory, and Hohfeld’s theory are good for scope as, combined, they speak of “convenience” to the extent that we do not accept that the artificial persons are “subjectless properties”.

According to Prof. Wolff, the only two kinds of legal writers are persons who have written on legal personality and those yet to. The views here are subject to banishment by further brooding but could serve as enough to let us think on jural relations.

POSTSCRIPT

This work does not reflect the referencing and it is with regret that I urge you to bear with the building questions in your minds that must have been resolved, maybe even dryly, in the endnotes.

There were difficulties fixing the referenced version here so you can get the referenced pdf copy revealing necessary citations and further information, upon request. Leave your mail address in the comment field and I will deliver it to you. This work may be beneficial to law professors, judges, lawyers, law students (especially students of Jurisprudence) and it is very much okay to share its contents.

COVID-19; THE GAMMON OR THE TRUE GUEST? TICKING THE HOSTS

INTRODUCTION

The author agrees that the above rubric suggests another venture into what the world already knows. The plague? Maybe too rough. The gammon? Sounds nearly impossible to maintain it is a hoax. The true guest? Maybe we can use some euphemisms. The hosts? This paper is very much interested in ticking boxes; say an inquiry into the inert roles of some affected countries and why we must survive today and react tomorrow.

THE ENEMY

There are reasonable fears filling our hearts. It is a very famous concern if the world is ending. Well, it is. It is not ending because of pandemics; it is ending because we humans have been inattentive to the effect of globalization on the one hand, the other face is that it ends because we inadvertently promote quicker misfortune when we poorly identify the doctrine of cause and effects. 

Before a pandemic, there was a coronavirus in Wuhan spreading in December of 2019. The world moved on as people in Wuhan moved from homes to graves; the virus moved on too. The virus moved to unfamiliar lands and became three things having attained its desired popularity: “COVID-19”, “the virus of the Orientals” and “the overstaying visitor”. It is such a difficult time. With over 1.35 Million cases, 75, 900 deaths and 289,000 cases of recovery, it is not unripe a time to philosophize about a possible extinction of the human race. Curious even is that the common enemy is not COVID-19. The Government is.

THE PHILOSOPHY OF ANGLES

It is probably beyond a doubt now that when there is an epidemic in country A, the wish of country B is that it does not extend to their territory. So then, one angle could be how much self-focused, self-centered and pathetic, humans could really be. If we must not be embittered, there is the optimism that country B’s reaction was no more than survival instincts – it is often a matter of fact to determine where a lack of empathy shifts from vices to virtues. At both local and international borders, this angle is called politics. It is narrowed down as mere conflict of interests; country A should understand. Where it is not a case of politics, it is one of genuine desire to survive the storm even if it means the entire country A be wiped out of earth. If it is not the black or white, it is safe to say the angles embody a plenitude of possibilities if we must consider the “grey”.

China, with over 81, 708 cases of the virus, has become the face of two months at the global scale. It is at this their time of difficulty that conspiracy theories have spread like wildfire. The conspiracy theories have become legal processes documented by the US Government against China – it all comes down to accusations of wrongful deaths of over 9,620 American citizens and the use of unapproved means of warfare; in this case, the coronavirus as biological weapons. It is this part that gets dicey – the question of whether the suit is inspired by a protection of public interests or if it is a suit of personal interest (a fight to maintain number one position in the World). It tilts towards the latter, unfortunately, if one recalls the slothfulness of Trump in shutting borders or if one considers China’s omission to give a global report concerning the epidemic. While there could be more than meets the eye, we may segue, for now, into floaters already found in the eyes.

It is not a time to nosedive into frenzy, so only the strong in heart should look up links of affected countries. The only positive thing about the virus is that immune systems can beat it and aid recovery; it is thus true that there is no cure. It is also true that our immune system can give in to Covid-19’s call to glory. It is not intended to scare us when it is scribbled here that it may take months to complete a thorough study of the roots of Covid-19 – it is said to be from Pangolins or Bats but Pangolins is unlikely because you will wonder why no case of the virus was reported from the sellers of Pangolins (it should read their community and not Wuhan’s). While not intended, it is however the truth. It is true that if miracles do not happen soon, then we would need a great deal of patience of further months or a year for a trusted vaccine to be in the markets – if we consider how much experiments will be undergone, side-effects on young and old, sick and healthy, genotypes and blood groups, the overwhelmed health practitioners must need the time. It is true that if the health practitioners join the panic distress, we are couple of steps closer to the end of time. It is also true that, like Rubella and Ebola, this virus may have no cure despite the exercised longsuffering. It is correct to say that patience is beyond a virtue in this circumstance, it is lucidly the only choice left for the governed.

It was man’s decision to bring wildlife closer to his niche. The epidemics so far have been ripple effects of man’s decisions. The records have been there but we have chosen to define “survival” as trusting we will not be one of the fallen men. Along the line, it was man’s decisions to wear a blindfold that the lessons of reality be his nursed ignorance. Our leaders got us to this point and as we fight for our lives today, we must not forget to fight for our compensation tomorrow. It is a socio-legal inquiry whether the acts or omissions of the President of the United States of America birthed two torts i.e. negligence and wrongful deaths? It is a socio-legal inquiry whether the President of Nigeria birthed same torts? It is a socio-legal inquiry whether China’s omissions birthed same torts. It is however not a prolonged inquiry on the hosts as we can focus on these principal offenders, amongst others.

The volatility of the tort of negligence is what has led courts to apply stricter measures. Even in its strictness, it is the position that value judgments will honour social interests, public safety and order over individual interests save in minor instances like contracts or employment affairs between persons of extreme opposite bargaining powers – the minor considerations could stretch beyond the just considered areas of law though. In a nutshell, the law of negligence, in particular, is a standing illustration of the fluctuating balance of value-considerations. Thusly, peculiar facts presented will inarticulately provoke discretionary justice. The applicability of this tort may rest on duty, breach of duty, cause in fact, proximate cause and damages. Its presence in an action bordering on this pandemic may thus assume safe landing.

It was a grave omission for Nigerian Government when her borders stayed closed to countries with only over a thousand cases of Coronavirus but open to lesser. It was a clear case of signing the death sentence of the governed and there are consequences for grave indiscretions. The decision to embark on reactive measures when there were early opportunities to be proactive has threatened the right to life of her citizens. The cause of the virus is not certain but how it spread to Nigeria is. The legal effect ties one to a possibility of stretching the right to life in the constitution as having been violated. Nigeria was never ready for a virus of this nature as it could not boast of facilities yet the Government hosted the guest. Can we say coronavirus led to the deaths of five confirmed deceased Nigerians? Or is it proper to bring a tort action of wrongful death against the Government for the death of the five persons? The reactive measures have been death notes too as it is foolish talk to put the hand-to-mouth majority at home without necessary palliatives and incentives – manna has not fallen from Heaven since and  it is certain that if the impoverished lot frankly abhor robbery, we may be reporting cases of death from starvation (it may be no news to a third world nation as starvation has killed more than the new virus). Right to life is legally protected and the presence of such a right attracts the duty of the governed and governors not to breach them. In this case, the government was reckless in matters of public safety and on grounds of value judgments; the family of the dead and the affected lot are entitled to monetary compensation.

With respect to the suit against China, say there is a splatter of doctrines such as: ex turpi causa non oritur actio and the last clear chance doctrine, the first defence may die on arrival as it puts the strict burden on the defendant to establish the illegal acts of the plaintiffs. While one can agree that the virus started in China it is a moot to say at what point the plaintiff acted illegally. The possibility of the latter defence for China is more promising if the tort of wrongful deaths comes with the tort of negligence. In this case, contributory negligence can be used as a shield to neutralize the tort of negligence if it is established that the plaintiff were reckless as well by not taking proactive or reactive measures themselves to avoid spread into all 50 states of the United States. Even this shield could be broken if the doctrine of last clear chance shows that (1) the defendant knew of the plaintiff’s situation, (2) the defendant realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (3) the plaintiff is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. The gist is that it is up for debate whether China owed America a duty to disseminate information of the epidemic early enough else it is a case of remoteness – parallelism between idealism and realism on the throbbing core at international conventions, is a call for deeper brooding. Ultimately, it is more a matter of the governed that have been affected, getting compensated for losses of loved ones and businesses.

Further on angles, what happens when the first and second world countries remain overwhelmed by the ever-increasing death tolls? It is simple. The third world countries would vanish slowly. A country like Somalia for instance, with no labs for testing Covid-19, ships specimens to the Kenya Medical Research Institute and other regional reference laboratories. If Kenya, during its own COVID-19 struggles, denies Somalia further reception, the death tolls in Somalia will stockpile – in fact, that they have seven confirmed cases is because they do not have the kits or facilities to handle the virus or determine the actual number of persons hosting the virus. We are observers of what globalization comes with and it is reported by biologists that this will not be the last epidemic. Still, it is good to hold that the environment is not the enemy but decisions of man.

CONCLUSION

It will remain in our hearts the very big question whether COVID-19 was an act of God? If it could be foreseen early enough and contained, it would have remained coronavirus without necessarily becoming a pandemic. The time for a global health system is long overdue – if we can have one powerful centre with strong health institutions in all countries, patterns can better be studied. There is need to prioritize public safety if we must remain extant. A study of patterns will be to aid the curtailing or prevention of further pandemics. It is not a hundred percent solution but it is the best thing that can ever happen to man and his relation with his environment. Stay safe.                                                 

THE CASE OF THE PROMISCUOUS HALVES

IN THE SUPREME COURT OF NIGERO, 2020
The Defendant, having been indicted for the offence of rape were convicted and sentenced to imprisonment for life with caning by the General Sexual Affairs Court of Ekito, Nigero. Aggrieved, the defendants filed a petition claiming robust errors of law, at the Supreme Court of Nigero. The records of proceedings having been entered with the grounds and issues for determination spelt out, the Chief Justice reproduced the facts birthing the extant controversy, in his opinion.

MARTINS GOOSE, C.J. The defendant, Tony, is the sole brother of the victim, Tracy. They are allegedly incestuous twins and same is held as so, due to undisturbed evidence led through the defendant’s unedited statement. The incestuous twins are aged twenty-one and from the records, they had fancied a secret marriage here in Nigero on the 25th December, 2020 at a place undisclosed from all the records before me. The date was picked in faith as December was to be the arrival time of their child. Also, they wished to throw a warm party for their like ‘Christians’ celebrating the reason for the season and the welcoming of their child into this accommodating earth. Tracy is a month pregnant today, March 31, 2020.

Sometime in January of this year, the incestuous twins renewed their vows of fervent loyalty to each other. They called it a renewal despite the legion temptations to copulate with a host of friends, foes and strangers; temptations to which they both could not resist. From the evidence of Tracy, she never told her beloved twin of her prior escapades but only did sometime in February when it became overwhelming on her how much she craved for fidelity with her twin. She admitted that it broke the heart of her twin after her confessions but went on to add, “Or so it seemed”. Tracy’s testimony was that she learned of the promiscuous proclivities of her twin from a next door neighbour, a woman, who claimed to have been carnally known by Tony. From the testimony, the woman, named Rita Sharp, told Tracy because she feared Tony was under unsolved psychological imbalances due to how frequent he choked her yelling Tracy’s name repeatedly before ejaculations. Rita Sharp never knew Tracy was more than a twin sister; Rita did not know Tracy was familiar with the choking techniques, I will say. I mean, this lack of knowledge is as narrated by the victim, Tracy Oji. The promiscuous realities of the defendant, Tony Oji, was contained in his statements where he mentioned having sexual affairs with different ladies although no names were highlighted – if the defence had called Tony to give evidence, maybe we could have compared names; though I doubt its immediate relevance to the petition before us.

From Tracy’s testimony, she confronted Tony that very evening following the confession from Rita Sharp. She cursed as the arguments got heated up; she yelled that he admits he was the one tearing them apart. He did not. He was busy unbuttoning his shirt while returning curse words. Tracy admits she lost it as she embarked on both verbal and physical abuse when she punched Tony in the face forcing a bleeding nose. She cried when he groaned in pains rejecting her advanced arms willing to examine level of damage; Tony caressed his nose and collected state of the bleeding with his narrowed eyes and hormones. By her testimony, Tracy started licking Tony’s face, the blood inclusive. Yelling had segued into a sensual atmosphere with maintained intensity in passion albeit for another agenda. Tracy admits they practically smooched from 10pm – 12am which was their longest foreplay before an eventual sexual intercourse. Material is that from Tracy’s testimony, there was penetration of Tony’s penis into her vagina and her consent was obtained by implication.

According to her, she withdrew her consent when Tony started to choke her with his both hands. Nothing was said about the motive so it may not be known exactly if it was an incoming ejaculation like previous sexual encounters between these incestuous twins. She alleges that despite yelling “stop it, get off me!” he kept choking and knowing her carnally. She placed the continuous sexual contact after the withdrawal to be between eight (8) and fifteen (15) minutes. When he was done, he became unconscious from all the bleeding forcing her eventual empathy. He was rushed to the hospital, became stable and arrested for the rape of his incestuous twin. Not the typical rape scenario I have ever witnessed, I must emphatically relay to My Lords.

The issues for determination centred on whether the rape conviction was the right verdict; whether the presumption of guilt in rape cases should not be considered as an exemption to the general pledge of innocent of accused persons until otherwise is proved? Of the fourteen grounds, these two issues are distilled, My Lords. While I cannot deny that I am taken aback by issue two, there is a more disturbing event which must see to the crumbling of this entire wastage of My Lords’ precious time. It is the perceived disrespect by counsel to the defendant/applicant who, with questionable nerve, boycotted the Court of Appeal. This is a court of order and it is immaterial that counsel suffered any form of mental defect; queries as to his enrolment to practice as barrister and solicitor in the Supreme Court of Nigero will be effected along the line as this inexcusable ignorance of the law is contemptuous.

My Lords, even if we shut our eyes to the defendant’s reckless lope from the trial court to this court, can we forgive and forget the choice to present a petition before us? I think not. To forgive this indiscretion will be to open dangerous precedents to the feeble legal practitioners ever submitting that sins of their incompetence should not affect their clients. They must think little of the equilibrium of adjectival laws with the theory of justice. The petition before me disrespects this court. To have summed up issues for determination from grounds of the petition must be a grave misconception that a proper appeal has been entered. To proceed to the meat of the issues is thusly an unripe sojourn. I am keen on avoiding labelling this an academic exercise as there is still a chance to appeal as of right to the court of appeal. Issues cannot be deemed joined in this matter and there is nothing before this Court – admittedly, I am willing to take a large bite but that will mean considering an improperly entered record of proceedings on the merit. In the interest of justice, this application is hereby struck out. Cost of Two Million Nero (N2M) awarded against the counsel to the defendant. Money to be paid to this Court for the embarrassment counsel has brought to Nigero’s Criminal Jurisprudence.

HART ROSE, J. I read the draft of My Lord, Martins Goose CJ., this morning. It is indeed straight to the point. I cannot find faults in the lead remark; now and here is not a platform for appraisals but we can soberly chirp like mourning birds, the scholarship of a breathing Sage. On the issue however, while My Lord’s position is trite, it is also trite that the rules of Court are not of a compelling nature but operate as guiding tools aiding the Court to do justice. It is trite that the Constitution mapped out jurisdictions of Court but it is also trite from case laws, decided by this Court, that when issues on jurisdiction are up for determination, a matter could still be held on its merit with judgment even written albeit not delivered. It is the position that such practice makes for ease as the court with discovered jurisdiction could choose to readily adopt the findings of the other Court. Let us not forget even that a case brought before a court without jurisdiction to hear such a matter should be struck out but could be heard on the merits in the alternative. The alternative being that say the matter was later discovered to have been proper before that court, precious time would be saved. I am of the opinion that my learned brother, Martins Goose CJ, should have taken addresses from counsel on why the petition was desired as means and why the Court of Appeal was not allowed to do its constitutional duty. My Lords, I will turn to the issues contained in the petition without wasting much time.

The first issue for determination is whether the rape conviction was the right verdict? Dismissing this petition, it is key to playback some ugly memories encountered by the rape victim. The Prosecution called four witnesses comprising the prosecutrix herself, Mr Anthony King (the medical examiner), James Black (Police Inspector) and Rita Sharp. The Defendants called no witnesses; no evidence was led as they rested on the evidence of the Prosecution. The prosecutrix was allegedly post-penetrated by the defendant but the issue of s.36 (12) of the Constitution became a very contentious battle for the centre. The trial court was clearly in order to have reasoned that the allegation was known to law vide s.36 (12) of the Constitution; it is not coherent to admit that s.6 of the Criminal Code meant the very first penetration and no more. It is, as the trial judge reasoned, unlawful carnal knowledge where the consent is withdrawn but there are subsequent penetrations of the penis into the vagina of the woman; the further sexual contact becomes verboten and it is this sexual violation that is deemed complete upon penetration – in this case, a further or post-penetration.

Established now, is the issue of post-penetration. The evidence led during the trial stage, crowned the full elements of the offence of rape/post-penetration rape. The prosecution must prove as follows: (1) That the accused had sexual intercourse with the prosecutrix, (2) That the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation, (3) That the prosecutrix was not the wife of the accused, (4) That the accused had the mens rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not, (5) That there was penetration. The question becomes: Did the prosecution prove the guilt of the defendant beyond reasonable doubt? I am inclined to believe so and reasons now come infra.

From the unedited statement of the defendant corroborated by the prosecutrix’s testimony, there was sexual contact between the incestuous twins. Rita’s testimony, with respect to the 2nd ambit of the legal onus of proof, was that she was peeping through the keyhole of the incestuous twins’ room during the heated up chats over infidelity. When asked “why?” upon cross-examination, she retorted there was no possibility of sleep with all the yelling emanating from the room of the incestuous twins. She claimed to have watched the entire sexual intercourse up to the choke, the withdrawal of consent and the “about 30 minutes” delay following the ejaculation and eventual end of sexual contact. While we can see the testimony of Rita corroborating that of the prosecutrix, passions are heightened with the inconsistency in time of “post-penetration”. It is good law that the court needs to warn itself when attaching weight to inconsistent evidence or testimony. It is not good law to insist that an exaggerated bit of a testimony renders other areas of the testimony, of no moment. In fact, what is important in computation of time is that of reasonableness. It is my position that upon a withdrawal of consent, 300 seconds of further penetration amounts to an unreasonable time. To this end, since five (5) minutes is the least of both eight (8) and thirty (30) minutes, the raised brows go unnoticed and the evidence becomes of rich probative value. The 3rd onus could have been up for a spectacle if they had proceeded with their secret marriage arrangement but since that is not the case; issues remain uncontroverted on this very onus. For the 4th onus, it is a case of recklessness and from the eye witness account and the testimony of the prosecutrix, the continuous choking of the prosecutrix and sexual contact undermined the right of autonomy enjoyed by the prosecutrix over her body. The medical examiner led evidence to show matching DNA which though was not a joined issue, was for further corroboration of a material onus. The medical examiner’s report revealed the marks of the defendants around the prosecutrix’s trachea; collected also, finger marks a lot suggestive of definite struggle by the prosecutrix at about same minutes thus corroborating the prosecutrix’s testimony. With all the collections and overwhelming evidence, it is obvious that the defendant is guilty of the offence of rape. The sentencing was just outright irreproachable.

For the second issue, I should say with my chest that the presumption of innocence should not be the case in rape trials. This perceived crude remark of mine is fittingly an obiter as the presumption of innocence is the law of the land save an amendment is sometime set in motion.
Case is now struck out. All parties are to bear their costs.

TEHINSE CHESTER, J. I did read the remark of my Learned Brother, Martins Goose CJ. Hastily, I adopt his submissions as mine as I hastily declare that the petition be thrown into bins of inconsequentialities pending its eventual ripeness before this Court if and only if the Court of Appeal is the next stop to be seised with the facts as reeled out by my Lord. Before I pass the baton, however, I am unsurprisingly interested in taking a bite at the cherry. It is by God’s Grace that we can still sit to consider arguments aplenty yet finding the spirits of wisdom in dispensing functional justice. I am drawn to the remarks of Hart J first because of its elegance, then because of its fallibility. It is to my mind, with every guard on courteousness, that where elegantly poised letterings suffer obvious blotches of fallibility, its scents become as cheap perfumes; its weight of relevance, almost as trinkets. With the foundation laid with a tinge of deliberateness, it is safe to consider my reservations even as I iterate my downright adoption of the Learned CJs remark.

With respect to the issue of jurisdiction, it must be seen and heard that after the trial court, the next court is the court of appeal. This is way beyond the rules made by the court of law; this is the grundnorm. To stress that this Court can determine the case on its merit in the alternative was no more than a clear mix-up as the matters to which this Court applied such methods bordered solely on civil appeals. This is a criminal appeal or an attempt at one with the face of a petition; it is not the jurisprudence to treat the criminal trial practice and procedures as of manifest similarity with the civil cases. The determination to bite at the merits of this narrative may have seen my learned friend, Hart J, revolutionizing the practice. This sentiment is not one that is new. I understand the sensitivity but the law is the law.

While I did not fancy the thoughts of taking bites on the merits save biting off edges of Hart J’s remarks, it is key to add here that the prosecution did not prove its case beyond reasonable doubt to my mind. It is simply difficult to see how the trial judge found the account of the prosecutrix as unassailable. It is not within our criminal jurisprudence to have “post-penetrated” a woman. The Criminal Code, vide s.6 stressed that the offence of rape is complete upon penetration. Since the prosecutrix consented to the sexual intercourse, there are no extant laws in Nigero stating that consent can be withdrawn. There are no laws like post-penetrated rape. In fact, it is as a case of waiver once prima facie case of consent is not a joined issue. To consider the medical examination, it reveals a sexual connection which was never a moot point but to say choke marks or finger scratching establishes rape beyond reasonable doubt is ridiculing. It is not true that DNA testing can prove rape. It could show a sexual contact but that does not establish a lack of consent. The marks around the trachea could not have proved rape as it was a routine choking sex – one which she admitted was the defendant’s way of making love to her. No. Not enough was done from the bulky medical reports. To take quickly the eye witness account, the exaggeration of 30 minutes was a stretch that must overreach the defendant. The definiteness is too striking and it creates a level of unreliability on evidence obtained of such a nature.
The consideration of the 3rd onus by Hart J appeared as a passing remark but it will be gleaned from the first schedule to the Matrimonial Causes Act that an eventual marriage of the incestuous twins was a void cause. They would only be judicially permitted if a judicial order was to that effect under affinity solely – since incestuous affairs could fall under affinity as under consanguinity, one must concede to the possibility of such marriage only if the condition precedent is met – this is merely buttressing s.4 of the Matrimonial Causes Act.

While I admit that rape is a gender discrimination crime, it will be a gender discrimination crime to presume any person accused of being a rapist as guilty. It makes for poor jurisprudence to call people alleged to be offenders as criminals without the person alleging having to prove the guilt of the alleged offender beyond reasonable doubt. The likelihood of wrongful convictions informed the perspective of the presumption of innocence as far as we can read the intention of the draftsmen of the Constitution. I cannot settle that the obiter was not crude. It is always the law that nine men out of ten who committed an offence, is better left to roam the streets a free man than a wrongful conviction of an innocent man. This, I ever thought, was chiefly basic.
The petition is struck out. I hope petitions are used in their proper courts from henceforth.

GOLD MANTIS, J. I read the draft of our learned CJ and I side with his position. While I believe I cannot possibly take a bite due to its legal implications, I will want to embark on an inquiry. Is there any such thing as finding a man guilty of incest in our written laws? Are there existing judgments from courts or the inhabitants that incestuous persons are corrupt persons getting their due if sexually abused by their “brother”? Whether correct to say the prosecutrix, as nominal complainant, came to court with clean hands? It is chief to say that a firm attentiveness to the sensitivity of the facts will amount to the progeny of a plenitude of inquiries. It is the criminal jurisprudence of Nigero that offences be contained in written laws but the reading of the Matrimonial Causes Act wherein consanguinity and affinity were deemed void and no more suffices to say that the impropriety to carry out such a marriage attracts inexistent criminal consequences. At best, the draftsmen in the Matrimonial Causes Act made it forbidden while attaching no teeth to bite defaulters. Since affinity is possible, it is safe to say that it is not unlawful to be incestuously wired. But there is the rebuff from the large majority of Nigero’s citizens against practice of this nature. It is largely labelled a curse and real soon the incestuously inclined minority will join the LGBT in the clamour for legal protection.

It is to my mind, not correct to reason that incestuously inclined persons are beneficiaries of karma when sexually abused. As far as we know, they are not sexual offenders and if the myth is accurate that there is definite reward in the society if their acts are allowed to breathe — a case of corrupting public morals— it is a matter of addressing whether it is one for private immorality or public immorality. While the need to consider this angle pends, the issue of coming with clean hands will be attended to. The apex court does sit as a court of law and equity. The maxim of interest is however neatly trimmed in civil actions and of rare traces in the criminal courts. Even, it is a question of whether a wrong done a complainant is indictable. Say we assume the issue of incest is foul, an analogy will help identify its immaterial nature where a crime is committed at the instance of another party. If a thief was killed by four men, the state will try the offenders for murder. That simple. The thief remains innocent until proven otherwise and it is not by extra judicial killing the “otherwise” is established. If an armed robber who is not charged to a court of law is raped by three men in the capital of Nigero where the Violence Against Persons (Prohibition) Act 2015 operates, you will see that the robber becomes a nominal complainant. The same is the fate of incestuous persons suffering acquaintance rape, stranger rape, et al.

On the issue of it being a private immorality, we are to consider whether the state can possibly be prosecuting the rape case of an immoral woman “in the interest of the state?” As much as we judges try to stay girded with the legal precepts, it is almost impossible to nurse no sentiments in a matter of sexual contacts between incestuous twins which occasions a case of rape. I am tempted to concede that I will not reflect on the merits due to no readiness to commit my brain into an everlasting severing of emotions from pure logic.

This petition is unfounded and hereby struck out. Parties to bear their costs.

BROWN J, I have perused the length and breadth of the Learned CJs remark. I cannot wriggle out of the emphatic ratiocination that no petition is proper before the court. As have every other Lord, I will bite the last of the cherry, the remnant so to say. I believe that the petition was intended as an appeal but I do not expect counsel to believe we would believe this ignorance is of little moment. Yes, it should be struck out immediately as it is manifestly incompetent. Flowing from the fact that the issue bordering on presumption of guilt was not an issue at the trial court, it is not the practice to sketch it here. But My Lords, now that it is before us, it is in the best interest of our criminal jurisprudence that it be heard. Conceding that a lack of jurisdiction of this nature renders all written essays of My Lords a waste of time, we can adopt these remarks as jurisprudential searchlights or academic advancements; the semantics. Before I segue into the issue of presumption of guilt, let me quickly add that I will not give my verdict on the legal correctness of the trial court until it goes through proper channels – it is only at that point that the further consideration of whether to disturb the findings of the lower courts below becomes material. I am addressing the issue of presumption because there may be need to establish a ligament with Hart J’s opinion which I very much think is in order. It is true that even this issue is not properly before My Lords. But the position of the law that appellate courts are not under a duty to hear matters on unfounded or incompetent originating processes do not extend to the discretionary powers of My Lords to make comments. It is on the strength of this discretion that I am enjoined to have the last bite.

Just as employed by My Lord, Gold Mantis J, I will be on a voyage of jurisprudential discoveries. My inquiries are as follows: (1) whether the grundnorm presumes an alleged rape offender, guilty? (2)Whether it is practically possible to prove a case of rape beyond reasonable doubt? And (3) Whether consent can be waived? I will turn to the very first inquiry.

The first line of inquiry is widely celebrated as one rooted in the black letters of the law vide s.36 (5) of the Constitution of Nigero. Since I have deliberately made myself a party after Hart J joining issues against the thinking of the majority on possible microscopic particles embedded in the provision of interest, there is need to reproduce it in full as well as its accompanying proviso. It has thus:

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;

Provided that nothing in this section shall invalidate “any law” by reason only that “the law” imposes upon any such person the burden of proving particular facts.

A take from the provision is that the constitution presumes a man innocent until proved guilty. The proviso went on to admit the existence of a presumption of guilt if any law imposes such persons the burden of proving particular facts. A substratum conceived from this fertile provision is whether the reading of “any law” was limited to the lawmakers? This is a matter of interpretation and that is especially what this court does. By way of clarity, “any”, from the Merriam Webster Dictionary, indicates “a maximum or whole”, “every”, “unmeasured or unlimited in amount, number, or extent; appreciably large or extended”. It is true that the choice words, “any law” can be argued to mean laws on every related or unrelated subjects such as laws of physics, karma, success, political thoughts, et al, but we are quickly narrowed by the next underlined phrase which addresses “law” with a definite article “the”. The legal implication of the phrase brings us strictly within the confines of the administration of justice or the rule of law. With this watering of our roots, My Lords, the question “what is law?” becomes material. While it is so that law-making is a constitutional power enjoyed by the legislature, it will not be accurate to say the judiciary cannot make declarations – these judgments of the court are, of themselves, laws. It takes a little brainstorming to conclude that case laws are primary sources of law and should in fact be read as being part of the intention of the draftsmen when it said “any law”. It means then that it is not the law that only the Evidence Act can impose the presumption of guilt or onus to prove particular facts. With this revelation, the presumption of guilt as contained in the Evidence Act are legally recognized albeit not to the point of being the peremptory exceptional circumstances the Constitution was willing to acknowledge. It is a fact that the Evidence Act did not address the presumption of guilt. It has that he who asserts must prove only and there exists a line between the two, strictly speaking. That the lawmakers did not particularly give exceptions to the offence of rape does not mean the field is covered to read “rape offenders are presumed innocent”. It could read that actually; but it should not mean that other or “any” other law cannot change the narrative in line with the enabling choice words of the proviso vide s.36 (5) of the Constitution. On the strength of this discovery, the prophecies of what the court will do remains what the law is. This means, I must add, that this Court has the power to interpret the proviso of the section above bearing in mind the public policy consideration. It is good I proceed a bit further to show the dire need why a presumption of guilt is proper in rape cases.

Stepping into the second inquiry, there are no two ways to look at the question of successful convictions of rape offenders. Persuasive is a 2016 report which shows only a 6% conviction rate of reported rape cases in the U.K. In France, it is a breath-taking 2.6%. Now this may be deemed a rightful implementation of functional justice even as we consider the age-long practice of freeing the guilty lot rather than convicting one innocent man. I am of the view that rape convictions in Nigero are minute because of certain ugly misconceptions that must be cured this very hour. This misconception borders on “consent” and it is with this I conclude, My Lords.

The third inquiry on whether consent can be waived is one that must be resolved. I do not agree with Tehinse J that once the initial penetration is granted, there cannot be a withdrawal of the consent. The timeous words of Asa Baber are for the soul:

Always take “no” for an answer. Always stop when asked to stop. Never assume “no” means “yes”. If her lips tell you “no” but there’s “yes” in her eyes, keep in mind that her words, not her eyes, will appear in the court transcript.”

It will never be legally sound to refuse the possibility of post-penetration rape. Given that our Criminal Code failed to define “consent” it is for this Court to resort to its wealth of knowledge in meeting with the demands of the victims or the state. If Tehinse J can deem the offence of rape as complete upon “initial penetration”, he can as well reason it out as “further penetration upon a withdrawal”. This expectation flows from the fact that it was an interpretation by my Learned Brother, Tehinse J that “complete upon penetration” meant “the initial entry of the penis into the vagina”. As a way of unlearning the ripple effect of such dangerous precedent, there is need to abhor further familiarization of oneself with the “unstoppable male theory” or the “women are chattels theory”. The privacy of a woman to her body is a right she enjoys and she does not become without a voice to say when she craves for sexual pleasures and when she wants to bail. It is barbaric to uphold that sexual contact cannot be overridden by event of subsequent withdrawal. As far I am concerned a woman should never be likened to a chattel even though I may concede to the sexual intercourse as a “chattel” which is traded between both parties – it is a sexual connection likened to a contract and even such trading atmosphere admits to “pacta sunt servanda.” So without hesitation, consent cannot be waived.

A step further into matters of consent reveals that since rape is a basic intent crime which falls under sexual contact without outright consent or an outcome of recklessness, failure to obtain consent is an outright case of rape. The petition before us has facts bordering on recklessness. While there is no desire to consider the merits, it is, for purpose of setting new and better precedents, which I must add that in determining issues of recklessness, the law has ever turned its back on the rape victims. What the law holds, where the defendant admits to sexual contact but pulls defences, is that a defence of honest belief is what must be considered and not “honest and reasonable mistake”. So we can see My Lords that in a defence of honest belief, say an accused asserts that he lacked the mens rea for the offence because he honestly believed that the complainant was consenting and never considered lack of consent, all that will be assessed is the genuineness or sincerity of that belief. Why my frowns could be short-lived with the possibility of honest and reasonable mistake, it is a grave misconception that in a case of rape, it is a question of whether the defendant could read the signs rightly in a quest to attain the implied consent; it should always be whether the victim was raped and not of the honest belief or reasonable story of how the rape offender imagined consent was given. It is correct to say even that the test for reasonableness could either take the form of:

1. What the reasonable person would have believed in the circumstances of the case;
2. Whether the belief was based on reasonable grounds; and
3. Whether the accused’s belief was reasonable.

My Lords, the bulk of the tests are fashioned in a way that too many attributes of the defendant are taken into account. It is true too that with tests of this nature, the reasonableness test sits more with the defendant than the victim. More so, the reasonableness is still a moot point whether it should be subjective or objective. Subjectivity will mean in relation to the frame of mind of the accused – troubling, why does it have to be about the knowledge or frame of mind of the accused than the victim? It is currently a clog making it nearly impossible to secure a conviction. My Lords, it is even canvassed in some jurisdictions that rape, a basic intent crime, carry a lesser offence like a mere assault if it is a case of reasonable mistake – it would seem like the mens rea is the yardstick for culpability. The failure to appreciate the truth that rape is worse than murder wherein the rape victims relive the horrible memories is the reason why there are silent law reforms on this matter – you will wonder why consent was not defined in our statute books or why the definition of rape in the Criminal Code has failed to meet with the international best practices.

With the presumption of guilt, the defence may rethink submitting unreasonable beliefs of consent on grounds of honest belief. Also, the presumption of guilt is not scary as imagined. The presumption is to even assist the court in forming an opinion as the defendant is compulsorily put on the stand to prove particular facts to evince an expected true narrative of what occurred between himself and the victim. It is not scary as it on a balance of probability; I mean, nothing in the Evidence Act shows that it becomes short of a proof beyond reasonable doubt where the presumption of guilt in rape cases is set in motion. My Lords, s.1 of the Administration of Criminal Justice Act imposes a duty on the court to protect rights and interests of “the victim”, “the defendant” and the state. With the machinery of the law tilted towards the benefits of the defendant, it is lucidly absent how justice can break free from metal lock laws or applications. I would wish an application requiring the interpretation section of s.36 (5) of the Constitution as it relates rape will come in subsequent years so we can reach a verdict once and for all.

POSTSCRIPT
Now that the judgment has been delivered, one may be nonplussed as to the realities of the above. It is safe now to echo that produced in its fullest is an imagination of the writer’s mind. The judges are fictional although the first four fictional judges carry first names of people dear to me. If the coined names fit into persons known to you, it is surely a matter of coincidence. The idea of the fiction is to draw legal reactions on the sensitive nature that is rape and capture the interplay of legal philosophies and government. The facts captured here may appear similar to challenges in some societies and this is probably not out of place as it is a representation of the permanent bottlenecks of the human race.

THE DEATH PENALTY; REJECTING THE ABOLITIONISTS’ APPEAL

1. INTRODUCTION

This paper reflects on the school of thought that death penalty should be abolished in all nation states. As such, this paper will reproduce summarised ratiocinations of well celebrated human right activists who double as abolitionists. It should be known that this paper will, from the kick-off, portray the writer as a retentionist of the abolitionists’ appeal. In fact, the writer will pursue the rejection to the conclusive remarks of this paper.
 
The death penalty chant is not a topical harangue. In most nation-states, it borders on retribution or deterrence as key motive for upholding the death penalty. Because it involves the taking away of lives, the penalty is attributed to very limited offences such as murder, treason, treasonable felonies, armed robbery (in some jurisdictions) and kidnapping (in some jurisdictions). While there is a category of persons in the retentionist school that subscribe to death penalty for all the above offences, other retentionists clamour for its application or utilization to only cases of murder. Well, this writer, while largely writing with respect to murder cases, sides with the school upholding all the aforesaid offences with a big request that the offence of rape be added to the list. This writer believes that rape is worse than murder as the victim is left to relive such ugly scene – in fact, the presumption of guilt is a tempting solution line. This temptation will be considered in another article. For now, we can conveniently head into the issues to be determined by our conscience, sentiments, sound logic, et al.

2. ISSUES FOR DETERMINATION

This writer joins issues with Ivan Simonovic on the following arguments/positions:

A. That despite the greatest judicial efforts, wrongful convictions are not avoidable. Capital punishment is simply too final and irrevocable, and makes it impossible to correct such mistakes. The consequences for human error are too grave.

B. That there is no conclusive empirical evidence that the death penalty deters crime.

C. That the death penalty is cheap only if it is carried out quickly. Putting in place the necessary safeguards to prevent wrongful convictions often makes legal proceedings lengthy and much more costly than the longest prison sentence.

D. That long delays on death row make the death penalty a cruel punishment (unacceptable from a human rights perspective).

E. That long delays in carrying out executions also postpone closure and psychological healing for victims and their families, in a way that (for example) the perpetrator’s return to prison to begin a life sentence without parole does not.

F. That not all victims’ families support the death penalty, and even among those who do and who desire revenge or closure through it, the great majority are left frustrated because only a small minority of perpetrators are executed.

G. That the death penalty is not imposed in a just and equal way. Those sacrificed on the altar of retributive justice are almost always those who are vulnerable because of poverty, minority status or mental disability.

H. That the use of the death penalty should no longer be perceived as an entitlement of a sovereign state because it violates human rights. No national interest can justify human rights violations such as the death penalty or torture. International recognition and protection of human rights limit state powers in this regard.

I. That as long as the death penalty exists, it can be misused, for example to target particular social groups and political opponents.

This writer, while appreciating the concerns therein raised by Ivan Simonovic, will show reasons why this position must be rejected. Narrowly, this writer will tackle the throbbing core from the perspective of the Nigerian Criminal Jurisprudence.

3. THE REBUTTALS

“That despite the greatest judicial efforts, wrongful convictions are not avoidable. Capital punishment is simply too final and irrevocable, and makes it impossible to correct such mistakes. The consequences for human error are too grave.”

Before nose-diving into the merits of this position, it is material to put to test the ultimate result of “the greatest judicial effort.” By every standard, if the bench is manned by incorruptible sages, is it any possible for a mathematical accuracy in their quest for truths in every allegation of crime? With the mammoth embrace of “presumption of innocence”, does it not go to mean that there is only one possibility where the judiciary, adopting of course the incorruptible sage status, exerts their “greatest efforts” in a quest for justice? To show a great deal of fair play, the proviso in s.36 (5) CFRN 1999 (as amended) which relates to validity of laws like s.167 of the Evidence Act, 2011 – where presumption of guilt is buttressed in certain respects – the legal burden of proof on the defendant is on a balance of probability. The main gist of the section is that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. On this premise, let us consider the merits of this submission.

While it is admitted that wrongful convictions can happen or do happen, it cannot be said that they are unavoidable. To assume that with the greatest judicial efforts we can never attain a world unmarred by wrongful convictions, will be to assume a great deal. The assumption goes to the root of the commonweal of the polis, generally, as it seems to question the axiom that the court is the last hope of the common man. An arrival of such a bold assertion by Ivan Simonovic presupposes the skeptical disposition he attains whenever a finding of “guilty” is the call in a murder trial. It is, perhaps, accurate to say there is no total faith in the judiciary – from the abolitionist standpoint.

Read in the inverse, will abolitionists be unbothered where despite the greatest judicial efforts, wrongful acquittals are yet unavoidable? Is there a possibility that there are murderers who get to walk the city roads as freemen because the prosecution was choked while pursuing the legal burden placed on him – the proof beyond reasonable doubt? It remains a food for thought what the abolitionists call justice when these questions call for their responses. If we must reflect on the issue being considered, it will be correct to say that Ivan Simonovic calls it unavoidable injustice despite the greatest judicial efforts to pursue justice for nominal complainants and the polis at large. The choice word, “greatest” speaks of heightened bias and it is not safe for a nation to uphold this kind of rhetoric as it cannot be gainsaid that citizens who cannot rely on the courts to administer corrective and distributive justice in its pure form, are in a hopeless state.

Beyond a doubt, capital punishments are final and irrevocable. It is not in question that human errors can pose as very grave. It is because of the possibility of wrongful conviction that we have appellate courts – the convict is presented further opportunities to prove his innocence. While the abolitionists will at this juncture address the issue of intervention of DNA testing in exonerating 140 death row inmates in the United States since the 1970s, it does not go to affect the core values of a nation-state that adopts the principle of preservation of human life (the victim in this case) and the utilization of death penalties as retribution or deterrence. It is argued even that the jury system during murder trials could prove a lot political especially the sentiments considered during jury selection. As an observation, these abolitionists from United States have not convinced the majority of people in their country nor have they succeeded in persuading their government otherwise. In fact, it will appear that with the paucity of data on the number of wrongful convictions per nation-state, it will be faulty to hastily generalize that this judicial slip is the global practice.

Besides, the argument of Ivan Simonovic is more of a recommendation to the retentionist school of thought than a submission to champion the abolishment. This writer believes that it behoves on all nation-states to ensure that the practice of convicting defendants when the legal burden on the Prosecution is discharged, remains the religion. It is not even convincing to say that because DNA Testing exonerated that number of persons after conclusion of murder trials since 1970, that it is unsafe to believe that the Court can rightly convict a person. It is not convincing to assume that because the DNA Testing facility will prove expensive at post trial stage, then we should abolish the death penalty. It is not convincing because you do not need DNA Testing where circumstantial evidence can prove a case beyond a reasonable doubt. Logically, there should be no further protests from abolitionists where DNA Testing is utilized more during trials. But truth is, the remonstration will not stop even with such improvement (assuming that the trials have ever been conducted in appalling conditions).

As has been mentioned already, the hierarchy of courts serve as more options for the defendant. They are not fanciful structures but a place where justice is dispensed. The argument that since the appellate courts play a limited role by considering questions of law and not facts canvassed at the court of first instance (trial court), should not even hold sway as good ground why wrongful conviction is unavoidable. It is the law that if records of proceedings from the trial court are not the exact capturing of events at the trial or the records were missing, it is for the defendant to impeach the records of proceedings. Where records are impeached, the facts become in issue. In fact, while we must admit that the appellate courts do not meddle into evidence evaluated by the trial judge, the legally recognized exception is that evaluation of documentary evidence are not within the exclusive preserve of the trial court vide EZEUKO V. STATE [2016] EJSC (VOL 43) 36 S.C. Also, while the appellate courts answer the legal questions, if the appeal is on mixed law and facts, facts become in issue. Even, while points of law are to be determined at the appellate courts, a retrial order can be made as well in the interest of justice. Point is, since the trial court observed the trial, the appellate court will be guided by the records as it is a moot court. If a trial court failed in its primary duty of making findings of facts on issues joined between parties, and the evidence is such that the appellate court cannot make findings and come to a decision on all the relevant issues, an order of retrial is the proper call.

Furthermore, it should be understood that a retrial order is hardly granted. It does not operate as injustice where there were no substantial irregularities in the conduct of the case; or where the proceedings were conducted at the trial court largely in conformity with rules of evidence and procedure, et al.

“That there is no conclusive empirical evidence that the death penalty deters crime.”

If the abolitionists call it mythical, it is actually on them to lead empirical evidence to establish otherwise at the international plane. It is heavy to swallow that while the abolitionists admit that it has been impossible to conduct public opinions of people in Africa and some other continents due to how repugnant the question may pose, they can suddenly hold the imposition of death penalty as mythical. They stand on assumptions ultimately without data to negate the simple logic that a death penalty as a law to deter A from killing B should make A realize the consequences of his actions; the penalty is justice in its richest vitamins. Point is, he who asserts, must prove. The ball has not left the abolitionists’ court despite their remonstrations.

“That the death penalty is cheap only if it is carried out quickly. Putting in place the necessary safeguards to prevent wrongful convictions often makes legal proceedings lengthy and much more costly than the longest prison sentence.”

If the safeguards intended here is the DNA Testing, it has been treated above. If the safeguards are the appeals, then it is true that it could prove costly especially for the impoverished. It is not conceded, however, that the safeguards will pose as much more costly than the longest prison sentence. The exaggeration appears to be part of the submission and it equates to it not being regarded. In fact, does the one second delay in executing a death penalty make it expensive? This is blurry. The cheapness or otherwise has no weight on the core values considered by nation-states. It is not good reasoning to state that a thorough establishing of necessary safeguards will be too expensive enough for life imprisonment without parole to be the recognized punishment. This reasoning fails to see the gravity of criminal wrong as murder on such a victim and his family while lying under the pretext of fighting for justice of the killer. It is misunderstood what this kind of human rights activism proposes to encourage. This position scarcely advances the argument of the abolitionists; if it advances it, the weight attached is infinitesimal.

“That long delays on death row make the death penalty a cruel punishment (unacceptable from a human rights perspective).”

There is need to halt and embark on metaphysical introspection on possible take homes from this fourth submission. Firstly, the choice words, “long delays” and “cruel punishment” could mean that the abolitionists have problems with the long delays on death row than with the execution of convicts when instant. Because of expected smart responses such as, “this is one other reason out of a bunch”, it is apposite the submission be tested as to weight.

If a convict is on death row for years at his own instance, especially where he has his case pending on appeal, does it become cruel that his execution is delayed? One will think not. Indeed, as established in NAFIU BELLO V. AG, OYO STATE [1986] 5 NWLR (Pt. 45) 828, it is sheer injustice where the execution takes place during the pendency of an appeal. That much is cruel because there exist further rights of the defendant/appellant. To ascribe theories of cruelty to a convict who has exhausted all his legal rights, will be needless tattooing on sound jurisprudence. The convict cannot become a victim of long delays on death row when, in nine out of ten cases, prays for longer opportunities to see another day. If there is one prayer of convicts, it is that pardon from the Governor/President finds them. Most of them want this delay, logically. To stress that the long delay amounts to cruel punishment is an admission by the abolitionists that they have not been paying attention.

From more introspection, the sentencing of the convicts by the court of law does not attach in its wordings, “immediately”. The punishment is complete upon the finding of guilt and pronouncement of sentence. It could not have been cruel at the point of sentencing save an innocent man was wrongly convicted. In line with the core values of retentionist nation-states, this is justice. It is in the position of the judiciary or the victim’s relatives to remonstrate when there is a delay and not a convict who has no legal rights anymore. The fact that the convict is made to hope against hope as the execution tarries is a matter of choice; this sentiment cannot make him a victim, this sentiment cannot lead a cavalry charge to bloody submissions that is “Abolition!” Again, the submission favours the retentionists to the extent that it is considered as valid recommendation if we must avoid prison congestions.

“That long delays in carrying out executions also postpone closure and psychological healing for victims and their families, in a way that (for example) the perpetrator’s return to prison to begin a life sentence without parole does not.”

No. what will never amount to closure and psychological healing is the acceptation of life sentence without parole as the punishment for killing another human with the requisite guilty mind and criminal act itself. No. Short, long or no delays at all do not determine whether a psychological healing will occur. The pain may linger forever but the State has only lifted part of the burden. There is a relief that the court has convicted the murderer; that closure or psychological healing reads from the execution of the convict is not a tested hypotheses – if tested, the outcome is yet published to show its universal or general resolve. The argument of closure and psychological healing leading to life sentence as proffered solution is not convincing for conservative nation-states. It is an argument from liberalists and the thing about the liberals is that they nurse the proclivity to abuse certain liberties – it is an abuse to the conscience of values of the society for one to advocate for life sentence under the pretext that it is how best he can grief with the families of the victim. The root of the death penalty is retribution and deterrence; the submission of the well-respected law scholar can be summarized as merely trying too hard.

“That not all victims’ families support the death penalty, and even among those who do and who desire revenge or closure through it, the great majority are left frustrated because only a small minority of perpetrators are executed”

It is true that not all families of victims support the death penalty. Their reasons are not in one figured box. It varies. But should the minority prevail over the majority ever willing to preserve the core values of the polis? This should be rhetorical. In 155 pages of the abolitionists’ side of the story, it was not shown how they arrived at the great frustration of the greatest number. They did not even reveal how they arrived at the conclusion that a minority of perpetrators get to be executed when many nation-states are so far, guilty of not publishing its executions. Even if the abolitionists are right as to the existing moratoria, how can we determine the level of frustration indeed if it is not a creation of the abolitionists sorely to amplify their voices? Besides, that a minority have been executed (say we assume but not concede) does not mean that the rest will not be. In an amusing way, it seems the frustrated party is the abolitionist – it attracts barrels of good laughs if they are frustrated that the execution did not come speedily in the best interest of the families of the victims supporting the death penalty. If this is so, then this becomes yet another recommendation as the debate should quench if closure can be guaranteed with speedy executions.

“That the death penalty is not imposed in a just and equal way. Those sacrificed on the altar of retributive justice are almost always those who are vulnerable because of poverty, minority status or mental disability.”

The pinning of death penalty is not done unjustly or unequally. The issue of poor or mentally disabled as sacrificial lambs is arguable. The mentally disabled on death row must have been determined by the court to be a person suffering under a mental disability, committed the criminal wrong at a time when he could deduce his right from wrong. It is not foul if the M’Naghten’s Rule is tested. While it should be admitted that this is injustice if ultimately the case, it cannot be seen how life imprisonment without parole becomes justice. Are we to fight for justice of murderers? It does not affect the root of death penalty even where we consider these odds. Again, it is like a recommendation as where there is such a transparent and unbiased system of Government, there is equilibrium. The clamour for equilibrium is a better way to advance the roots of the death penalty – ensuring retributive justice meets all convicts.

“That the use of the death penalty should no longer be perceived as an entitlement of a sovereign state because it violates human rights. No national interest can justify human rights violations such as the death penalty or torture. International recognition and protection of human rights limit state powers in this regard.”

With all due respect, the only violation here is the bold assertions slanted which are not legally protected. It should be understood that the foundation of all the abolitionists’ clamour is “right to life”. A constitutionally protected human rights of Nigeria, for instance, stresses that “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.” While right to life is protected, a death penalty negates one’s right to further enjoy such right. No. it is not in the place of a careless remark to have significant weight on the preamble of a nation’s constitution. It is near ludicrous to fight for justice of a convict who violated the right to life of a deceased victim. It is perceived that there are levels to this activism – one which this writer is not interested in stepping into.

International laws, treaties, et al, do not limit state powers in this respect save where there is existence of a treaty obligation or the customary international law practices. It does not limit the sovereignty where the laws are not domesticated; in Nigeria for instance vide s.12 CFRN 1999. The question now is whether the death penalty falls under the Jus Cogens? The answer is in the negative. The question of torture is settled under relevant provisions of the Anti-Torture Act, 2017. The issue of torture is cruel but it is definitely not established by the abolitionist that this treatment exists – even if it does, the best is a sanction of defaulting officers, costs, job loss or trial.

“That as long as the death penalty exists, it can be misused, for example to target particular social groups and political opponents”

Misused by whom? The courts? This submission seems to forget that while the politicians can pin allegations on adversaries, it is the court to find truths. If by misusing, Ivan intended the execution stage, what is the big deal about the motive? After all, all convicts on death row are to experience same fate – though it tarries, it will come to pass. This however admits to the exception of pardon.

4. RECOMMENDATIONS

It is apposite to conclude with the following:

1. It will not be bad to entertain a post-conviction or habeas review where capital offences are considered.

2. The courts should ever advise and in other cases, ask that another counsel represents the accused. The issue of half-baked lawyers trying to save lives when they need saving themselves should be prohibited. Only diligent defence attorneys should be recommended to handle serious felonies (any criminal case in fact).

3. The executive arm of government should be accountable or transparent. The governed are entitled to know the number of persons on death row, those executed, the reasons behind the moratorium, et al.

4. The court of law should stick to the principle in WOOLMINGTON V. DPP and should not convict if the legal and evidentiary burden is yet discharged.