The contents of this post
were first published as a Twitter Thread on Saturday, 27th September 2019. I
wish you a happy reading.

While witnessing the
proceedings in the P&ID Ltd v Nigeria case on 26th Sept I promised
to do a thread on how the Nigerian judiciary can save itself. I know I make too
many promises and don’t keep all. I am happy that I am able to keep this.

First of all, some house
cleaning exercises are in order. Without blowing my trumpet, I can say that in
the 6 years that I appeared before Nigerian courts, I gained an in depth
knowledge of the workings of the justice system in Nigeria, enough to also appreciate
the weakness. I have discussed extensively the weaknesses of the court system
in Nigeria. Some friends have suggest that I should consider a role in the
Nigerian judiciary or Federal ministry of justice. I have a deep love for
Nigeria, make no mistakes about it. But I am happy to contribute in another
role.

One of things I heard when I
was starting my first degree in Abia State University, and which stuck, was
that University is a place where you learn, unlearn and relearn. And for those
humble enough to unlearn and relearn, it is a refreshing experience. Thankfully
in the 12 months since I came for my 2nd degree, I have learned, unlearned and
relearned. What I discuss below is a combination of the things I learnt in my
Masters Degree class and some practical tips I picked from witnessing the
P&ID Ltd v Nigeria proceedings. I will discuss the above under five
headings; (i) jurisdiction rules (ii) Leave to appeal (iii) Adjournment of
cases (v) appointment of judges and (v) preparedness of judges. All of these
add up to fundamental question of case management.

In an article I published a few years ago, I joined the Nigerian
judges in condemning the unbridled rights that litigants have to challenge the
jurisdiction of courts to hear certain cases. In that article I argued that
preliminary objections to jurisdiction contributes in the delays and congestion
of cases in court. That’s correct. But I also made it appear as if it is only
in Nigeria that lawyers and litigants unduly resort to preliminary objections.
To an extent I was wrong.

Just like the case with
Nigerian court system, litigants in England also have a right to challenge
jurisdiction. In fact their rule is even stricter because if you don’t
challenge jurisdiction and enter appearance, you are deemed to have submitted
to jurisdiction. The only difference is that the English judges are better
equipped to deal with jurisdictional challenges. I dare say that it is not a
question of the rules of court but the judicial will to enforce the rules of
court. Join me as I seek to demonstrate this.

From experience, I have seen
cases that had no business in the Federal High Court e.g. land matters,
contracts etc. filed there. And despite the objection of the defendant, a smart
lawyer is able to maintain the case there. I hereby plead my right against
self-incrimination.

In Nigeria, to determine a
jurisdictional challenge, the court only reads the originating processes and
the motion objecting to the court’s jurisdiction, together with the affidavits
& written addresses, and then hears a few minutes of counsel’s oral
arguments. As a result, the judge is not able to appreciate the true nature of
the dispute and is therefore easily hoodwinked by smart counsel. In England,
there are actually proper hearings [sometimes lasting several days] on
jurisdictional challenges alone, with loads of evidence. At the end the judge
is in a better position to know whether the case is rightly or wrongly brought
before the court. And believe it or not, once the jurisdictional challenge is
determined one way of the other, most of the cases are settled. The explanation
for this is beyond the remit of this long thread. And we have not even started.

My simple suggestion? It is
admittedly a stretch to expect Nigerian courts to start by holding several days
of hearings on Preliminary Objections. But at the very least, Nigerian courts
can rely on the current rules and invite the deponents to the conflicting
affidavits to the witness box for questioning. I can bet you that by the time
the judges hear oral testimony of witnesses from the outset, on the actual
nature of the dispute, the judges will see through more than half of the
Preliminary Objections and be in a position to deliver better reasoned rulings.
And this does not require new laws or amendment of the rules of court.

The second point is the
issue of granting leave to appeal. Under the Nigerian constitution and the rules
of courts, some categories of appeals cannot be filed except you first obtain
permission of the court. And the case law is clear on what you must prove to
get leave.

Although the formulation is
different between Nigerian & English law, the principles are the same.
Under English law, to be entitled to permission to appeal, the proposed ground
of appeal must show that the appeal stands a realistic as opposed to a fanciful
prospect of success. Under Nigerian law, the requirement for the grant of leave
to appeal is that the grounds of appeal must show prima facie good cause
why the appeal should be heard, in other words the grounds of appeal must
disclose arguable issues.

During the P&ID v
Nigeria case, both counsel had hours to argue whether Nigeria should be granted
permission to appeal. The arguments were not abstract. Each ground of appeal
was scrutinized against the backdrop of these requirements. In the end, the
court granted Nigeria permission to appeal on some of the grounds and refused
to grant permission to appeal against other grounds.

Where that is the case, at
the end of the day, when you are granted level to appeal, it ensures that the
appellate courts i.e. the Court of Appeal and the Supreme Court are not unduly
burdened with frivolous appeals and only the appeals that have a serious chance
of success or will contribute to legal development will end up being heard.

In Nigeria, the prevalent
judicial attitude to the application for leave to appeal is “to allow them come
in”. This is the default look on the faces of My Lords when you stand in court
to say you object to an application for leave to appeal. In other words if you
inform the Court of Appeal that you are opposing an application for leave,
their default reaction is contempt, as though you are wrestling breast milk
from a suckling child. And in truth that is what you are doing.

One reason for this this is
the unbelievable rule of the National Judicial Council (NJC) which mandates
judges to submit a number of judgments every quarter. It is the same reasoning
behind stipulating a minimum number of cases that a lawyer must have before
being considered for SAN. In the end, it elevates quantity over quality.

This is also the case with
application for enlargement of time to appeal. Under our rules, an applicant
that is out of time to appeal must explain its delay in filing by giving good
and substantial reasons and then demonstrate that the grounds of appeal disclose
arguable issues.

However, our courts make it
clear that they would grant enlargement of time in almost all cases even when
the applicant has not demonstrated good and substantial reasons. The Nigerian
Supreme Court recently worsened matters when it held that once the ground of
appeal is on jurisdiction you need not give sufficient reasons for being out of
time. Incredible. So you can lose a case and then wait 20 years before bringing
an application for extension of time. All you need do is to garnish with a
jurisdiction based ground, however tenuous the connection.

Yet, these same courts will
still complain about congestion of cases in courts. It has been said that
appeals take an average 3 years to get a hearing date at the Court of Appeal
and 7 years at the Supreme Court. This is part of the reason. To put it
starkly, a lot of pending appeals are frivolous.

The next thing is the
adjournment of cases. This is one is really pathetic. Most lawyers have
experienced working all night or all weekend in preparation for a case only to
get to court and either the court is not sitting or the lawyer on the other
side asks for adjournment on the flimsiest of excuses. Sometimes with the
acquiescence of other lawyers. I might be exaggerating but if your mother died,
you dare not come before an English court to ask for adjournment for a case
that was fixed 6 months earlier. The court will slam you with punitive cost and
possibly report you to the relevant authorities. I am talking about costs in
the range of £50,000. I remember a Senior Advocate of Nigeria once asked for
adjournment of a trial in Nigeria because he had to preside over a family
function. In that case, the court rightly rejected his application. I bet you 8
out of 10 judges would have accepted.

On the two days I witnessed
the Nigerian proceedings in London, it was the only case listed for the day. On
14th June when the court heard arguments on the application to enforce the
award, there were several developments that would have truncated the proceedings.
In fact I concluded the court would not hear the case that day and after the
case was stood down, I had to leave for a prior engagement. I was pleasantly
surprised to read later that day that the court proceeded with the hearing. In
Nigeria, some judges happily line 30-40 cases per day, and only do justice to
5. And adjourn the rest. After keeping lawyers in court all day. Sometimes you
wonder whether our judges derive any special from seeing their courts jampacked
with lawyers. And you can’t tell me Nigerian courts are busier than English
courts. For me, it boils down to case management.

One possible remedy is the
award of cost. And in truth the rules of court are adequate particularly the
Rules of the High Court of Lagos State. It is simply a question of the judicial
will to enforce it. To be fair a Judge in the Federal High Court, Lagos is
renowned for awarding massive costs. But My Lord is an outlier. On the
contrary, a judge of a State High Court in Nigeria awarded cost of N2000 as
recent as 2018. It is indicative of the value each places on the profession.

The next issue is the
appointment of judges. In England to be appointed as a commercial court judge,
almost all the judges would already have been distinguished practitioners, with
some being Queens Counsel. And it shows. On Thursday I witnessed the
extraordinary sight of a QC making a mistake in his argument and whether a
particular case applied for a purpose. The judge told him he was wrong. Pointed
it out. The QC apologised in open court and said his interpretation was wrong.

Permit me to say nothing
about the appointment of judges in Nigeria. Except that we have a long way to
go.

Finally on the related issue
of preparedness. As a judge, whether you were supremely qualified when you were
appointed or otherwise, hard work and preparation pays. It was obvious to all
and sundry in court on Thursday that the Judge had read all the papers in the
file. And his questions to lawyers and engagement with the case demonstrated
that. I hear this was the norm with majority of Nigerian courts in the good old
days.

In light of the foregoing,
you will agree with me that whilst law reform is a good thing, the truth is
that a lot can be achieved with the law and rules as we presently have them.
Most of the things I have highlighted can be implemented from next Monday. All
that is required is the right judicial attitude. I am available to further
discuss these and other practical tips to improve the Justice delivery system
in Nigeria. And I can do this even without being a judge. Have a good weekend.

I am available on Twitter as
@OrjiUka

 Source: LinkedIn 

Introduction

It is not often that a
lawyer gets the opportunity to disagree with the views of a judge. Indeed by
the nature of the legal profession which we inherited from the English, apart
from the avenue of appeal against unfavourable decisions of judicial officers
provided by the Constitution, all lawyers are required to respond to the views
and decisions of judges by chorusing the customary, ‘as the court pleases’. But
as they say, sometimes Christmas comes early. A report I read in Thisday
Newspaper of Sunday 17th May 2020, has provided me a channel to express my
dissent not just from the views of several judges but also from those of a very
senior lawyer!

 The Thisday
Newspaper Report

In the report titled,
‘Judges Oppose Virtual Court Sitting, Say it’s Unconstitutional’ by Tobi
Soniyi, the writer reportedly interviewed certain judges on conditions of
anonymity to get their Lordships’ views on the introduction of virtual hearings
in the wake of the COVID-19 global pandemic. The summary of the report is that
these judges concluded that, just like the Supreme Court recently nullified the
conviction of Ude Udeogu on grounds that Justice M. B. Idris was no longer a
judge of the Federal High Court and the trial was therefore unconstitutional
and a nullity, the apex court was also likely to set aside trials that were
conducted via virtual platforms, on grounds that they were not held in public,
and therefore unconstitutional and a nullity. For the reasons stated below, I
fundamentally disagree with this characterisation.

The writer referred to the
provisions of Section 36 (3) and (4) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended) which prescribes that all trials must be
held in public, and expressed the view, on the strength of the feedback from
the judges, that the proposed virtual court hearings via Zoom or Skype for
instance, would in all likelihood contravene the Constitution. More interesting
is the fact that the writer referred to a previous decision of the Supreme
Court in support of the position, the case of Edibo v. The State (2007)
13 NWLR (Pt. 1051) p. 306 where the Court set aside a conviction of a
defendant by a trial court because the arraignment of the Appellant was not
done in a public place.

The above report, especially
its reliance on this case, has finally given me an avenue to discuss the near
complete erosion of the concept of ratio decidendi in Nigerian law,
which is symptomatic of an alarming deterioration of legal scholarship in
Nigeria among law students, lawyers, law teachers, Law Report editors and,
sometimes, even judges.

The Concept of Ratio
Decidendi

For the sake of the
uninitiated, Nigeria belongs to the legal clan of countries that practice the
Common Law system, and the bulk of the law practiced in Nigeria was received
from England. A chief feature of this Common Law system is the doctrine of stare
decisis [or judicial precedent] which literally translates as let the
decision stand. For this doctrine to be effectively applied, every judgment is
typically divided into two parts: obiter dictum and ratio decidendi.
The former constitutes the non-binding part of the judgment while the latter,
which literally interprets as the reason for the decision; the reasoning behind
arriving at a particular verdict by a Judge, is the part that has binding
effect. This is the law which we inherited.

In recent times however, it
appears to have been completely forgotten that not all parts of a judgment of a
court are of binding effect on lower courts. Indeed arguments began to emerge
in the past decade that the obiter dictum of the Supreme Court is binding. That
was of dubious provenance. Thankfully the Supreme Court quashed such reasoning
in the case of Adebayo & ORS. v. PDP & ORS (2013) LPELR-20342(SC).

In the places where we copied
our laws from, and indeed here in Nigeria [in time past], when a judgment is
delivered, the judgment would be studied to determine what is the ratio. Law
reporters for instance would distil the ratio from the decision and report it
for future use. This is admittedly no mean exercise. An illustrative example is
the recent article by Aaron Taylor, ‘In Search of the Ratio Decidendi’ LQR 2019
135 (Oct) 556 – 561 where the author traced the efforts of the English Court of
Appeal in defining what constituted the ratio decidendi in the case of R.
(on the application of Youngsam) v Parole Board [2019] EWCA Civ 229; [2019] 3
W.L.R. 33.

The point being made is that
what ought to be cited to a court as authority or judicial precedent is only
the binding part of the judgment, the ratio. Regrettably, what transpires in
Nigeria today is that once a court delivers a judgment, no one is interested in
finding out what the ratio is, the law reports will simply reproduce the
judgment and release what they term “holding” or “held”. No analysis and no
attempt is made to distil the ratio. Lawyers on their part wantonly single out
phrases in a judgment and cite before a court under the stare decisis
doctrine. Ultimately, some judges, for obvious reasons, make no attempt to distil
the ratio but swallow hook, line & sinker, both the ratio decidendi
and the obiter of decisions referred to them.

Practise has persisted
despite judicial warning

Incidentally a warning
against this practice was issued almost thirty years ago by the venerable
Chukwudifu Oputa, JSC in Adegoke Motors vs. Adesanya (1989) 3 NWLR
(Pt. 109) 250 at pages 274 – 275 when His Lordship issued the following
immortal words: 

It also appeared in rather
bold relief that there is now a tendency among our lawyers, and sometimes among
some of our Judges, to consider pronouncements made by Justices of the Supreme
Court in unnecessary isolation from the facts and surrounding circumstances of
those particular cases in which those pronouncements were made. I think it
ought to be obvious by now, that it is the facts and circumstances of any given
case that frame the issues for decision in that particular case. Pronouncements
of our Justices whether they are rationes decidendi or obiter dicta must
therefore be inextricably and intimately related to the facts of the given
case. Citing those pronouncements without relating them to the facts that
induced them will be citing them out of their proper context, for, without
known facts, it is impossible to know the law on those facts.

Regrettably, this warning
has gone largely unheeded. This is despite the fact that the Supreme Court has
consistently reaffirmed that position of the law. In the more recent case of Akeredolu
v Abraham (2018) LPELR-44067(SC), the apex court restated that, “it is
trite that legal principles established in decided authorities are not to be
applied across board and in all matters without regard to the facts and issues
submitted for adjudication in a particular case.” The Court referenced its
earlier decision in Emeka v Okadigbo (2012) 18 NWLR (pt 1331) 55 where
it was stated that a judgment should always be read in the light of the facts
on which it was decided and that the rules of stare decisis do not allow
courts to apply the ratio of a case across board and with little regard to the
facts of the case before them. The Court further placed reliance on Okafor v
Nnaife (1987) 4 NWLR (pt 64) 129, Udo v The State (2016) LPELR – 40721 (SC). 

Similarly it is a trite
principle in both English and Nigerian laws that each case remains authority
for what it decided. Therefore, an earlier decision will only bind subordinate
courts in a subsequent case if the facts and/or the law which informed the earlier
decision are the same or similar to those in the subsequent case. Where the
facts and/or the legislation which are to inform the decision in the subsequent
case differ from those which informed the court’s earlier decision, the earlier
decision cannot serve as a precedent to the subsequent one.

There is a plethora of
Nigerian decisions that support this principle including Godwin Ugwuanyi v
NICON Insurance Plc (2013) 11 NWLR (pt 1366) 546, Clement v Iwuanyanwu (1989) 3
NWLR (pt 107) 39 and Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (pt
864) 580, Fawehinmi v NBA (No. 2) (1989) 2 NWLR (pt 105) 558, Western Steel
Works Ltd & Anor v Iron Steel Workers Union of Nigeria & Anor (1987) 1
NWLR (Pt. 49) 284, Skye Bank Plc & Anor v Chief Moses Bolanle Akinpelu
(2010) 9 NWIR (pt 1198) 170. 

It is against this backdrop
that I invite you to embark on this journey with me to dispassionately consider
the facts and circumstances of the case of Edibo v. The State using
Section 36 (3) and (4) of the Constitution as the prism. In the end I hope to
convince you that the decision of the Supreme Court in that case is not good
authority for the contention by the judges or some other senior lawyers that
virtual trials do not come within the meaning of trials in public; or that they
are unconstitutional and therefore constitute a nullity under Nigerian law. Let
us begin with a look at the constitutional provisions at issue.

The Constitutional
requirement for Trials in Public

Section 36 (3) and (4) of
the Constitution are reproduced in all their glory below:

36“(3) The proceedings of a
court or the proceedings of any tribunal relating to the matters mentioned in
subsection (1) of this section (including the announcement of the decisions of
the court or tribunal) shall be held in public.

(4) Whenever any person is
charged with a criminal offence, he shall, unless the charge is withdrawn, be
entitled to a fair hearing in public within a reasonable time by a court
or tribunal…” emphasis supplied.

In view of the employment of
the peremptory word ‘shall’ by the drafters of the Constitution, the judges,
according to the report, argued that the requirement for public hearing and
determination of cases in Nigeria is mandatory. That is beyond disputation. The
bone of contention is, what constitutes a hearing conducted in public?

The case of Edibo v. The
State

In Edibo v. The State
the appellant, then a police officer, Insp. Simon Edibo, was one of ten persons
charged before the Benue State High Court in Makurdi, with the commission of
the offence of culpable homicide arising from a case of mistaken identity which
happened in 1997. It was not disputed that the plea of the appellant, who was
the 5th accused person at the trial, was taken on the 19th of January 1998 in
the Chambers of the Honourable Justice A. J. Ikongbeh. At the end of the trial,
the appellant and the 4th accused person, A.S.P. David Joshua (who subsequently
died) were each found guilty and convicted of culpable homicide and sentenced
to death. The appellant appealed to the Court of Appeal which promptly
dismissed his appeal, culminating in his ultimate appeal to the Supreme Court.
Thus, one of the issues posed to the Supreme Court was whether the Court of
Appeal was right when it held that taking the plea of the appellant in the
Chambers of the learned trial Judge was not unconstitutional.

In its consideration of this
issue, the Supreme Court in the lead judgment delivered by Tabai, JSC admirably
analysed some of its previous decisions on the question of trials in public,
including Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt. 50) 356; Oviasu v. Oviasu
(1973) 11 SC 187; N.A.B. Ltd. v. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR
(Pt. 413) 257 at 273; and Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 and came
to the conclusion that the taking of the appellant’s plea in the Chambers of
Ikongbeh J. was unconstitutional.

In Oyeyipo v. Oyinloye what
transpired was that the Supreme Court acted pursuant to its powers under the
Rules of the Supreme Court, heard and granted in Chambers, an
uncontested application to dismiss an appeal for want of diligent
prosecution, owing to the appellant’s failure to file the appellant’s brief of
argument within the period prescribed by the Supreme Court Rules. Similarly, in
Chime v. Ude, the Supreme Court suo motu and sitting in Chambers
dismissed an appeal pursuant to its powers under Order 6 rule 5(2) of the
Rules of the Supreme Court, once again due to the failure of the
appellants to file their brief of argument as and when due. When the
appellants thereafter filed an application seeking to set aside the dismissal
of their appeal, the Supreme Court dismissed the appeal.

On the other hand, what
transpired in Oviasu v. Oviasu, a matrimonial cause, was that the trial
took place in the Chambers of the trial Judge. Neither the parties nor their
counsel requested for the hearing in Chambers. At the conclusion of the
hearing, the learned trial Judge dissolved the marriage. On appeal the Supreme
Court allowed the appeal, set aside the judgment and ordered a trial de novo.
The basis for the decision was that the trial, having not taken place in
public, was fundamentally irregular. In N.A.B. Ltd. v. Barri Engineering
(Nig.) Ltd, the trial was conducted in public, however at the end of trial,
the court for inexplicable reasons invited both counsel into his chambers
and delivered the judgment wherein he granted all the reliefs claimed by
the plaintiff.

Aggrieved with this
procedure and the judgment, the appellant appealed to the Court of Appeal which
dismissed appeal. On ultimate appeal to the Supreme Court, the judgment was set
aside on the ground of constituting a nullity and a retrial was ordered. The
Court in particular held that the learned trial Judge committed a fundamental
breach of the provisions of section 33(3) and (4) of the 1979 Constitution [which
is in pari materia with provisions of Section 36 (3) and (4) of the 1999
Constitution] and that the said breach vitiated the entire proceedings at the
trial court.

The Ratio Decidendi of Edibo
v. The State

On the strength of the above
analysis, the Supreme Court in Edibo v. The State then proceeded to
issue what must be accepted as the ratio decidendi for its decision. The
court held that in view of the fact that the arraignment of an accused person
is the very commencement of a criminal trial; in light of the fact that any
criminal trial, no matter how well conducted, without the plea of the accused
person first and properly taken is a nullity; and since the proceeding of the
19th of January 1998, wherein the plea of the appellant and others were taken
in the Judge’s chambers was not only irregular, but also fundamentally
defective in the absence of any rule of court authorising Ikongbeh J. to take
the plea of the appellant in his Chambers; the inevitable conclusion was that
the entire proceedings were rendered null and void and the Court of Appeal was
therefore wrong to have upheld the trial and conviction of the appellant.

It is instructive that in
the case, the definition of public within the meaning of the
constitutional provision at issue is contained in the concurring judgment of
Tobi JSC where his Lordship stated thus, “[p]ublic means, for the use of
everyone without discrimination. Anything, gathering or audience which is not
private is public.”

Further, in a contributing
judgment, Ogbuagu JSC while deciding that a Judge’s Chambers does not qualify
as a public place stated that; “[s]urely and certainly, a Judge’s Chambers, is
not and cannot be equated to a hall in a public building that is used for
formal meetings.”

What the Supreme Court did
not decide in Edibo v. The State

As the above referenced
decisions of the Supreme Court have shown, it is neither the law that all
proceedings of court must be held in open court nor is it correct that no
proceedings can validly take place in the Chambers of a Judge. It all depends
on the peculiar facts and circumstances of each individual case.

Further, the various dicta
of the Supreme Court Justices are not sufficient to state that Edibo v. The
State is authority for the proposition that all court hearings or trials
must take place in a physical hall or building. The question of whether all
trials must take place in a physical building was certainly not one of the
issues formulated for the court’s determination in that case. Accordingly, the
reference to “a hall in a public building” in the judgment of Ogbuagu JSC was a
classic obiter dictum contained in a concurring judgment which was merely
uttered in the process of distinguishing between a Judge’s Chambers and a
courtroom to enable the court arrive at its decision that the trial was a
nullity.

In light of these, a number
of questions become pertinent in determining whether virtual trials conform
with the constitutional requirement that trials must be held in public, to wit:
what constitutes hearing conducted in public? Are hearings conducted via
virtual platforms, conducted in public? Must hearings take place in a physical
building to be deemed as having been conducted in public? Must the public have
physical access to the location of the hearing for it to conform with
constitutional standards?

Of all these questions, only
the first was considered and answered by the Supreme Court in Edibo v. The
State and that answer was given in the specific context of whether a
hearing which took place in the Chambers of a Judge ought to be deemed a
hearing in public. Nothing more, nothing less.

Having shown that the
Supreme Court did not decide that all trials must take place in a physical
building in Edibo v. The State it appears to me that the writer and the
[anonymous] judges fell into the error of reading into the word public found in
section 36(3) & (6) of the Constitution, the requirements of a physical
building which is clearly not contained in that section.

Chief Adegboyega Awomolo,
SAN’s intervention

While writing this article,
I came across a commentary by a very distinguished member of the bar, Chief
Adegboyega Awomolo, SAN on this pressing issue titled, ‘Virtual Court Hearing
Does Not Pass the Test For Proceedings Conducted in Public; There is Need for
Constitutional Amendment’ where the learned Silk contended that virtual court
hearings do not pass the constitutional tests of proceedings conducted in
public. The surprising thing is that he relied in part on the same Edibo v.
The State as well as the above referenced cases highlighted therein in arriving
at his conclusion. It is once again submitted for the reasons already provided
that the various dicta of the Supreme Court Justices in Edibo v. The State
are not determinative of issue of whether virtual hearings pass the
constitutional test for hearings in public.

Academic Writings on Hearing
in Public

Additionally the learned
Silk referred to the views of some learned authors on the meaning of hearing in
public. The first was Fidelis Nwadialo who in his book, Civil Procedure in
Nigeria, 2nd Edition, posited at page 674 thereof that, “hearing in public
entails a situation where the public is not barred… A trial is sufficiently
public if members of the public may have access to where it is taking place.
The actual presence of the public is, however, not necessary.” The second was
those expressed by J. A Agaba at page 524 of his book, Practical Approach to
Criminal Litigation in Nigeria, to the effect that, “the “public” here refers
not only to a formal courtroom but it must be a place where there is access by
the public.”

It appears to me that the
views of these distinguished authors, which constitute a secondary but
nevertheless important source of law in Nigeria, do not support the conclusion
reached by the learned Silk. On the contrary, in addition to the questions I
posed above, all these writers have said is that a trial would conform with
constitutional standards so long as members of the public have access to where
it is taking place and such place needs not be a formal courtroom! There is no
valid reason why a trial conducted virtually cannot comply with this
requirement.

It is gratifying that Chief
Awomolo SAN concedes that “public place” does not necessarily entail a
proceeding conducted within the four walls of a courtroom. His main grouse is
that virtual court proceedings do not have the feature of being accessible to
everyone without any hindrance of any sort, a well founded concern but which
can be, and indeed has been, addressed as will be demonstrated presently.

This concern accords with
the view of the aforementioned judges that since many Nigerians do not have
access to smart phones and data to access the virtual court hearings, then it
cannot be said that the hearings are without hindrance. In response, I have to
ask whether all Nigerians have the financial means to physically attend court
hearings especially those that take place at the Supreme Court in Abuja? If the
answer is in the negative, can it then be contended that the Supreme Court
hearings are unconstitutional? The answer is in the question.

It has been argued, and
rightly too in my opinion, by the likes of Mr. Tunde Fagbohunlu, SAN that
virtual court hearings [especially those without password requirements and
which can be streamed to the general public] are more “public” than any
physical court hearing, having regard to the well-known limited capacity of all
courtrooms in Nigeria.

The correct approach to
constitutional interpretation

One other argument by the
writer of the Thisday report is that the judges expressed the view that the
Supreme Court is known to be illiberal and inflexible in the interpretation of
the Constitution. With respect that position is at best uncharitable, having
regard to a long line of Supreme Court decisions to the effect that the
Constitution must be given an expansive interpretation, and at worst, patently
wrong.

There is a long line of
authorities of the Supreme Court where the Apex Court in no unclear terms
outlined what constitutes the Nigerian judicial approach to the interpretation
of constitutional provisions. Perhaps the most profound of these can be found
in the prescient words of Udo Udoma JSC in Nafiu Rabiu v. The State (1981) 2
N.C.L.R. 293, 326 where His Lordship held thus:

“My Lords, in my opinion, it
is the duty of this court to bear constantly in mind the fact that the present
Constitution … is a written organic instrument meant to serve not only the
present generation, but also several generations yet unborn … that the function
of the Constitution is to establish a framework and principles of government,
broad and general in terms, intended to apply to the varying conditions which
the development of our several communities must involve, ours being a plural,
dynamic society, and therefore, mere technical rules of interpretation of
statutes are to some extent inadmissible in a way so as to defeat the
principles of government enshrined in the Constitution. And where the question
is whether the Constitution has used an expression in the wider or in the
narrow sense, in my view, this court should whenever possible, and in response
to the demands of justice, lean to the broader interpretation, unless there is
something in the text or in the rest of the Constitution to indicate that the
narrower interpretation will best carry out the objects and purposes of the
Constitution. My Lords, it is my view that the approach of this court to the
construction of the Constitution should be, and so it has been, one of
liberalism, …”

The constitutionality of the
Guidelines and Practice Directions

The final and perhaps most
important basis on which this writer fundamentally disagrees with the views of
the judges and that of the distinguished learned Silk is that inadequate
consideration was accorded to the existence of the Guidelines and Practice
Directions authorising the courts to conduct hearings virtually.

Indeed the National Judicial
Council on 7 May 2020, issued Guidelines for Court Sittings and Related Matters
in the COVID-19 Period which authorised virtual or remote sittings. Before
then, the Chief Judge of Lagos State had signed the “Lagos State Judiciary
Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” which
came into effect on 4 May 2020. There is also the Federal High Court Practice
Directions 2020 For the COVID-19 Period which came into force on 18 May 2020
and a host of other Practice Directions.

In the case of the Thisday
report, the judges consistent with their view [albeit an erroneous one in my
opinion] that virtual hearings are unconstitutional, proceeded to posit that
the heads of courts have no powers to make Practice Directions that contravene
constitutional provisions. On his part, Chief Awomolo, SAN merely referred to
the Lagos State Practice Direction, particularly Articles 14, 15, 16, 17 and 18
thereto, which provide that virtual court proceedings will be open to the Judge,
respective litigants and their counsel, and concluded that same was
unconstitutional to the extent that they purport to exclude the general public.

It is instructive to note
that the said Lagos State Practice Direction did not expressly exclude the right
of the general public to access its virtual Court hearings and even if it did,
such provision (and not the entire Practice Direction) shall to the extent of
its inconsistency with section 36(3) and (4) CFRN 1999 be null and void using
the blue pencil rule. In the absence of any provision purporting to exclude the
rights of the general public, the Practice Direction must be interpreted to
recognise the general public’s right to observe the proceedings.

Further, and for the
avoidance of doubt, the National Judicial Council Guidelines for Court Sittings
and Related Matters in the COVID-19 Period expressly recognise the right of the
general public to access virtual Court hearings by providing in Item E 12 (a)
and (b) that Heads of courts shall ensure that there is live streaming of all
virtual court proceedings through a publicized Uniform Resource Locator (“url”
or “web address”) or the court’s or any other social media channel so that
members of the public can observe the proceedings; and that the details of
the virtual court sittings shall be published in the usual manner that the
court generally publishes its regular sittings provided that such publications
shall specify the nature of the sitting and shall indicate the web address or
social media channel where there would be live streaming of the proceedings.

In view of the above and
considering the fact that part of the ratio decidendi of the decision of
the Supreme Court in arriving at its decision in Edibo v. The State was
the difference between the two lines of cases, I am confident that the Supreme
Court will also uphold the constitutionality of virtual hearings conducted
pursuant to the NJC Guidelines and the Practice Directions. As earlier
highlighted, the Supreme Court relied in part on the fact that the Rules of its
Court authorised it to sit and hear uncontested applications in chamber in
arriving at its decision to uphold the proceedings in Oyeyipo v. Oyinloye and
Chime v. Ude.

On the flipside the Supreme
Court also relied on the fact that there were no rules of court authorising the
judges in Oviasu v. Oviasu, and N.A.B. Ltd. v. Barri Engineering
(Nig.) Ltd to hear a matrimonial cause in chambers and deliver a judgment
in chambers respectively, in arriving at its decision to nullify the
proceedings as being unconstitutional.

I therefore make bold to say
that the NJC Guidelines and the Practice Directions issued by the National
Judicial Council and the heads of the various courts respectively, authorising
courts to conduct trials and hearings virtually will serve to ensure that these
trials scale the constitutional hurdle of conducting trials in public. On a
lighter note I am curious to see the panel of the Court of Appeal that will set
aside a virtual trial conducted by a High Court under the new Practice
Directions and the NJC Guidelines issued under the hand of the Chief Justice of
Nigeria.

Conclusion

The summary of all that has
been said is that I strongly disagree with the view that virtual court
proceedings as contemplated by the NJC Guidelines and various court Practice
Directions, offend the extant provisions of the 1999 Constitution. In
particular I have given reasons why the case of Edibo v The State should
not be bandied as authority for that view. In the final analysis, this writer
posits that there is need for lawyers, law reports and indeed judges to revert
to the mentally exhausting but ultimately beneficial exercise of x-raying
judgments to determine the ratio decidendi. This is only way we can
prevent the disappearance one of the fundamental tenets of the law which we
practice.

Orji Agwu Uka

A Legal Practitioner
who writes from Lagos

And tweets from
@OrjiUka

Source : LinkedIn

Marriage is a formal contract between two consenting
parties (man and woman). Generally, every contract is subject to termination or
determination. Thus marriage as a contract is no exception. This article explores
the legal way by which a marriage can be dissolved. There are three types of
Marriage in Nigeria i.e. Islamic Marriage, Customary Marriage and Statutory
Marriage. It is pertinent to state that the kind of marriage contracted
determines the form of divorce. This article focuses on divorce under statutory
marriage. It presents the reader, with other available options when divorce is
not practicable.

The article will be analyzed under the following headings;

1.     
Matrimonial
reliefs

2.     
Dissolution
of marriage/divorce

3.     
Claim
for damages where adultery is committed

4.     
Alimony/financial
support

5.     
Procedure
for divorce

MATRIMONIAL
RELIEFS

Divorce (legally called dissolution of marriage) is a formal
process by which a marriage contracted under the law is terminated thereby
absolving parties of marital obligations. Dissolution of marriage is one of the
several reliefs available to a couple seeking judicial intervention.
Matrimonial reliefs are the remedies available to a party approaching the
court. Generally, the reliefs include;

1.     
Nullity of a Voidable Marriage: This is where the marriage is not
valid from the beginning but it is subject to one of the party to set it aside.
The grounds includes, pregnancy before marriage, insanity, inability to
consummate/impotency, venereal disease etc. The Petitioner must approach the
court within twelve months of marriage and show lack of knowledge about a
particular ground. The incapacitated spouse/the suffering couple cannot present
the Petition. The document filed in court containing the grounds is called
‘Petition’. The person presenting it is called ‘Petitioner’ while the other
party responding is called ‘Respondent’.

2.      Nullity of Void Marriage: This is a fundamental defect that rendered the marriage void
from the beginning. It provides no legal consequence i.e. ‘there is no marriage
in the eye of the law’. The circumstances include, non-compliance with law, if
parties are related by blood/marriage, lack of consent, under age and if either
of the party is lawfully married before attempting to contract another
marriage.

3.      Judicial Separation: This is where the court put parties apart and relieves them of marital
obligations. Here the marriage is subsisting, so none of the parties can
contract another marriage. The husband is liable for maintenance, and in case
of death; the spouse alive can share in intestacy. The order is discharged
where parties voluntarily resumed cohabitation (this means living together) or
make an application for cohabitation to the court.

4.      Restitution of Conjugal Rights: This is where the Petitioner makes application to the court,
requesting for restoration of conjugal rights (i.e. rights and privileges
arising from marriage, e.g. love, companionship, affection, comfort and sexual
relations). The petitioner must show readiness to cohabit, with evidence of
written request to the respondent.

5.      Jactitation of Marriage: This is where a person parades herself/himself as the
wife/husband of another when in reality they are not married. The Petitioner
can approach the court and seek for an order to stop the respondent from doing
the wrong act. A divorced wife may continue to use the husband’s name. However,
she is prohibited from using the name to commit fraud.

6.      Dissolution of Marriage (Divorce): This is the focus of this
article. Read below for comprehensive analysis.

DISSOLUTION OF MARRIAGE/DIVORCE  

Divorce is regulated by law. It is a meticulous judicial
procedure which the Petitioner must follow. There is only one ground by which a
Petitioner can approach the court for divorce. The sole ground is that “the
marriage has broken down irretrievably” (Section 15 (1) (a) Matrimonial Causes
Act). The duty of the Petitioner is to prove to the reasonable satisfaction of
the court that the marriage has broken down and cannot be retrieved. The
Petitioner must adduce supportive facts to convince the court. Some of the
supportive facts are provided by law (Section 15 (2) (a)-(h) Matrimonial Causes
Act). The supportive facts include;

(a)   
Persistent refusal to consummate by
the Respondent: This
is when the Respondent repeatedly refused to have sexual intercourse with the
Petitioner. This supportive fact is not to be pleaded if the couple had at
least one sexual intercourse after marriage. It is only pleaded where the
Respondent is yet to have intercourse with the Petitioner after the marriage.
The Petitioner must show repeated willful refusal to consummate from the
Respondent.

(b)  
Respondent Committed Adultery and the Petitioner find
it Intolerable: Adultery means a
situation where a married spouse have willful sexual intercourse with a third
party. The Petitioner must adduce evidence to convince the court that adultery
was committed. The court can infer adultery in the following circumstances; (i)
admission and confession (ii) Respondent’s cohabitation with third party (iii)
pregnancy (iv) frequent visit to hotels/club (v) contacting infectious disease.
In order to succeed, the Petitioner must show intolerability (i.e.  The adultery was unbearable).

(c)   
Respondent’s Unreasonable Behavior: This is where the Respondent acts
in a weird and irresponsible manner, thereby making it difficult for the
Petitioner to continue cohabitation. Irresponsible behaviors include: rape,
sodomy, bestiality, refusal to pay maintenance, insanity, incarceration above
three years etc., in which case parties have lived apart for at least six
months.

(d)  
Desertion: This is where one spouse separates
with the intention of permanently bringing the cohabitation to an end without
the other party’s consent. The Petitioner can present a Petition for
dissolution.

(e)  
Living apart for two years without
objection: In this
situation, the Respondent objection is crucial; because once it is shown that
the Respondent objected then the plea must fail.

(f)    
Living apart for three years: Once it is established that the
parties have lived apart for a continuous period of three years, the Petitioner
is likely to succeed because further evidence may not be necessary.

(g)   
Failure to Comply With Decree of
Restitution of Marriage. This is where there is a subsisting court order, directing the
respondent to resume cohabitation and there was non-compliance. The court will
grant dissolution.

(h)  
Presumption of Death: A person shown not to have been
heard of, for a period of seven years, is presumed death by law (Section 164
Evidence Act 2011). Once it is established that the other party is not alive,
the court will grant dissolution.

Note: At least one of the facts stated above i.e. (a)-(h)
should be pleaded, in addition to the ground that the ‘marriage has broken down
irretrievably’ before a Petition for dissolution of marriage can be granted.

CLAIM FOR
DAMAGES WHERE ADULTERY IS COMMITTED

Under the Matrimonial Causes Act, the Petitioner can demand
damages from the third party who committed adultery with the Respondent and
join the third party as a Co-respondent. However, the case of adultery cannot
be heard after three years from the date of commission. A man who commits
adultery with another man’s wife can be sued for damages. Also a woman who
commits adultery with another woman’s husband can be sued for damages.

ALIMONY/FINANCIAL
SUPPORT

 It is called
differently depending on the jurisdiction, whether it is called alimony,
spousal support, aliment or spouse maintenance; the meaning is the same. It is
a provision either by the husband for the wife or the wife for the husband
after divorce. The husband and wife may agree on the amount and the manner of
payment and summit it to the court for approval or the couple may allow the court
to decide on the amount to be paid and the manner of payment. The main idea for
alimony is to provide financial support for the spouse with low income. In
awarding alimony, the court takes into consideration the duration of the
marriage, number and age of children, quantum of income and the age of the
benefiting spouse.

DIVORCE
PROCEDURE

STEP ONE: The marriage must have broken down
irretrievably.

STEP TWO: Try to settle the problem by
reporting to family members. In case of cruelty or physical abuse report the
matter to the nearest police station.

STEP THREE: Contact a lawyer or a
Non-Governmental Organization or speak to a closed trusted friend/family, or
read article online about divorce.

STEP FOUR: Decide the appropriate matrimonial
relief, consider all the available options. Divorce should be the last option.

STEP FIVE: File a Petition in court. At this
stage the service of a lawyer is needed. A marriage conducted in Lagos Marriage
Registry can be separated in any State High Court in Nigeria. The resident of
the man becomes that of the woman immediately marriage is conducted. If the man
is not living in Nigeria the woman may have little issue.

STEP FIVE: Attend reconciliation meetings
(usually organized by the court). If reconciliation fails proceed to trial and
present all the necessary evidence and call necessary witness(es). In a
situation where the marriage certificate cannot be found, call at least two
persons that witnessed the marriage to testify.

STEP SIX: Wait for the court to deliver
judgment. It may take months or years.

STEP SEVEN: If the court refused to give an
order for dissolution of marriage (divorce), you will have to go back and
continue with the marriage. In this case you may gather additional evidence and
return to court or settle the differences and continue with the marriage.

STEP EIGHT: If the court grants your prayer for
divorce, you are free like a bird. At this juncture, cohabitation will be
terminated, move out to a place of your choice and live a happy life.

STEP NINE: If alimony was awarded in your
favor, relax and receive the money. Alimony will stop when the person receiving
it begins cohabitation with a lover or enter into a new marriage. If alimony
was awarded against you, then get ready to begin payment before the court sends
you to prison.

STEP TEN: Do not rush into another marriage
without understanding the person. If you are single reading this article, then
you are the luckiest person on earth because you will avoid the temptation of
rushing into marriage for the purpose of wealth, physical appearance and
material considerations. Money may finish, beauty and handsomeness will fade
away, but a good character will remain till the last breath.

Contact the
Author:

Email: okpibernardadaafu@gmail.com

Twitter: @OkpiBernard

Phone: +2349032116272

OKPI BERNARD
ADAAFU (OBA) ESQ ( LL.B, B.L, ACIArb,
MICMC)  is Associate at Kanu G. Agabi SAN
(CON) & Associate, Abuja.

It is a settled principle of law
and life that the law cannot envisage every circumstance.

BACKGROUND

Over the years and even before
colonization, disputing parties had always resolved their disputes by referring
same to a third party adjudicator or mediator as the case may be. The
traditional heads of the various villages or Tribes gave verdicts on issues and
the parties were bound to follow them. This system had an hierarchical path,
rising through varying levels.[1]

With the coming in of colonization,
the modern Court system was introduced with all its apparatus and all its
glamour. Individuals had to be specially trained to either be judges or lawyers
properly so called. A formal setting was introduced as what is referred to as a
court room. Arranged in such a way that the Judge sits at the helm of affairs
and centralized facing the parties with the parties on the other end and a
space created for witness(es). The setting will vary slightly with the Court of
Appeal and Supreme Court.

These Courts are ranked and
spread round the country with various heads. Their location is not hidden and
any person can go into the court sit, listen and take notes; Lawyers and non-lawyers
alike. The Court was and is seen as a sacred temple of justice where lawyers
and litigants argue out the law in a controlled atmosphere under the ever
bright eyes and mind of the Judge/Justices.

In Nigeria, the judicial powers
of the Federation shall be vested in the Courts to which this section relates,
being courts established for the federation[2].
The whole section aforementioned went on to talk about the judicial powers. One
pertinent question is did the Constitution
Create ‘‘Courts’’ or ‘‘Buildings’’?

PROCEEDINGS
TO BE HELD IN PUBLIC

Recently this simple word ‘‘public’’
has become a very complicated word especially among lawyers, hence, it has
become important to address the fundamental principles behind the idea and seek
to look into the idea behind the word.

What
is public?

Public means open or available for
all to use, share, or enjoy. A place open or visible to the public.[3]
 It is also defined as exposed to general
view: open[4]

It is also important for the
sake of clarity to also define the term ‘’Court’’. 

What
is a Court?

A Court is a governmental body consisting
of one or more judges who sit to adjudicate disputes and administer justice[5].
 The key words from the above are:

1.      Governmental
body

2.      One or
more judges

3.      Sit

4.      Adjudicate
dispute

Having set the foundation for
the discourse to follow, what then is the provision of our laws as regard to
determination of matters? Should they be in the public? Should they be hidden?
What is public? What is hidden? Does virtual proceeding hinder fair hearing?

The Constitution of the Federal
Republic of Nigeria 1999 provides as follows:

‘’The
proceedings of a court or the proceedings of any tribunal relating to the
matters mentioned in subsection (1) of this section (including the announcement
of the decisions of the court or tribunal shall
be held in public’’[6]

The key word is “Shall be held in public”

It is a very settled saying that
‘’Laws are made for man and not man for the laws’’ further settled is that man
should not be slaves to the law.  Going
from the above and with the current need for social distancing due to the novel
Corona virus ( Covid-19) and dire need for technology in the legal sector, can
it be said that virtual Court proceedings are illegal?

What
are Virtual Court Proceedings?

Virtual Court proceedings are
proceedings that are conducted electronically or using electronic means. These
proceedings can be of two types:

1.      Hybrid

2.      Fully
Virtual.

Hybrid

This type of court proceeding are
held with some of the parties in a a particular place while others will join
online. This can be in two forms to wit:

a.      Judge,
Clerk, Witness will be in court alone, others will join in online or

b.     Judge,
Clerk and lawyers will be in court alone, witness to join in online or;

Fully
Virtual

This method will see all parties
join in from separate locations. The Judge, Lawyers, witnesses will all join
virtually.

Presently, India and the United
Kingdom have been able to successfully test run and can effectively use virtual
hearings for their proceedings. Bolivia, Ecuador, and Argentina, have been able
to introduce virtual Court hearings for pre-trial detainees[7]

This work has earlier defined
the word public and what a Court means. It is now apt at this point to avoid a
thesis writing exercise and align the definitions with the law.

The law has quite unequivocally
stated that Court proceedings must be in public. However, public as defined is
not a building. Public simply means accessibility to all. The idea behind
virtual Court Proceedings is to ensure that justice delivery is possible even
with the difficulty caused by Covid-19. Virtual Court proceedings that are not passworded
or if passworded but shared cannot be said to be illegal especially if other requirements
are met. The Court is not a building, if not, transfer of judges will also be a
problem. As long as a judge can sit and adjudicate efficiently in matters,
Virtual Court proceedings cannot be said to be illegal or proceedings conducted
therein void.

Further, it is a trite principle
of law that what the law does not
prohibit, it allows. There is no law anywhere that states that Virtual or
Online Proceedings are illegal. All the cases prior to now were decided based
on private hearing in judge’s chambers not online in court rooms. Judges
chambers are secret places hence, the comparison will most likely fail the test
of time. I have seen and read the cases cited by Harold Benson in his Article[8].
It is important at this juncture to state specifically, that the cases of Edibo v State[9]
and Oviasu v. Oviasu[10]
where cases decided based on proceedings held in a judge’s chamber. It is
settled that the chamber of a judge is private. However, what is not settled is
whether the Court proceeding held virtually is public. There is no Nigerian
Authority on the point but using the principle of purposive interpretation, it
is clear that there is nothing wrong neither is it unconstitutional as the
writer stated or as argued in many quarters.

The Writer went further to quite
interestingly provide statistic on the issue of light and data for the average
Nigerian. The truth is while this statistic might be true, but if compared to
the risk and transport used to come to a Court room without assurance of the
Court sitting, it will be agreed that a virtual court sitting will serve
everyone better. The writer also made reference to the erudite definition by
Fidelis Nwadialo, this position is in tandem with this work, as Virtual Court
proceedings do not stop anybody, rather it allows for wider coverage as even
lawyers outside the seat of the hearing can watch. One good aspect of this
Virtual Court proceeding will present itself when the Supreme Court is giving a
judgment on a very important constitutional matter. Everybody/ lawyer will be
able to watch and hear the pronouncement on the issues irrespective of where
they are based and follow through immediately.

Lastly, the author has gone to
town with the restrictiveness and capacity of zoom or virtual hearings using
online medium. The current Court room capacity cannot take all litigants and
lawyers no matter how hard we try. The Average Court room will sit between 30
to 50 persons, while a free zoom meeting can take up to 100 participants who
can join in, with comfort, from their rooms. Capacity should definitely not be
a reason.

One major advantage that Virtual
Court sittings will help with is the issue of Court not sitting for various
reasons. Every lawyer at some point has been disappointed by the announcement
of Court not sitting despite getting to Court early and sometimes waiting for
Minutes or hours. Imagine a situation where all parties are to join virtually.
The inability of the Court to sit will not be overly felt as much as travelling
all the way from office to Physical Court. Secondly, with Virtual Courts, the
Judge can now sit at his convenience if the need arises and quickly dispense
with matters.

CONCLUSION

Man must change with the
changing times. A man must evolve with evolution. Like a lawyer that has just
been called to bar, overtime we learn and develop a suitable means to navigate
unfamiliar terrain.

The challenges with virtual
proceeding will be enormous and are enormous but that does not make them
illegal or contrary to the law. Once individuals can watch the proceedings and
can see and hear, the Court has done its part. It is like normal court
proceedings, some days parties absent themselves, does this then mean that they
have not been given fair hearing? definitely not.

Technology has come to stay and
it is important that the challenges associated are tackled. Court proceedings
held virtually are not illegal and cannot be illegal if conducted properly and
open for all and sundry to watch. It is safe to say that once the Court not
building is accessible, then the requirement of the law can be said to have
been complied with. In the case of Scott
v. Scott[11]
the House of Lords noted the right of
public access to the courts is “one of principle … turning, not on
convenience, but on necessity”. Again the above decision of the House
of Lords references the point of this writer that as long as access is granted,
venue or means should be of no moment.  

Thank you.

Babayemi
Olaniyan Esq, DRS, ACIArb(UK) AICMC, ACIS

Yemiolaniyan00@gmail.com

08134699398

The
history of rape and sexual assault dates as far back as the creation of man. Originally,
rape was thought to be, and defined as, a crime committed solely against women but
rape of males is now commonly criminalized and has been subject to more
discussion than in the past. Anti-rape activists have initiated movements
seeking to combat violence against and the abuse of women to give women a sense
of security. Unfortunately, what has now become common is some women, driven
by revenge and self-interest or based on false memories, make spurious
allegations of rape. It is no surprise that people in today’s world would
rather sign a consent form before engaging in sexual activity than not, in an
attempt to protect themselves from groundless accusations that could ruin their
reputations.

The
scandalous Kobe Bryant sexual assault case of 2003 began when the media
reported that the sheriff’s office in Eagle, Colorado, had arrested professional
basketball player Kobe Bryant in connection with an investigation of a sexual
assault complaint filed by a 19-year-old hotel employee. The lady accused
Bryant of raping her in his hotel room in early July. She filed a police report
and authorities questioned Bryant about bruising on the accuser’s neck. Bryant
admitted to a sexual encounter with his accuser but insisted the sex was
consensual. The case was dropped after Bryant’s accuser refused to testify in
the case (1).
We do not and may never know if indeed it was consensual sex. Also, notable is
the Rosewood massacre of 1923 which was founded on a white woman’s false
accusation of rape against a black man (2).
The Rosewood massacre was an ugly situation as many deaths were recorded. As
the saying goes, experience is the best teacher. Even if such experience was
another’s.

With
the constant people coming out against celebrities for sexual molestation,
harassment, rape charges, celebrities, athletes and high-powered business
executives who want protection from potential rape or other sexual charges are
obtaining consent forms for their partners to sign, acknowledging the pair is
about to engage in consensual sex (3). These forms are
however not solely for the celebrities or the high-ups.

The
Sexual Consent Form is an agreement that allows two (or more) adults create
boundaries and share permissions to create an atmosphere that is comfortable
among parties. The agreement is a more communicative, more comprehensive, more
explicit and clearer model of sexual consent than the “no means no”
or “yes means yes” approach. Succinctly, the sexual consent form is
an evidence of consent. Individuals who want to engage in acts that may involve
sexual intercourse, or other related activities may want to sign an agreement
in that regard. The parties can decide which sexual acts they wish to perform
ahead of time, allowing for a mutually enjoyable and safe sexual environment.
Since it is probable that things may get heated or escalate, the ‘Ratchet
Clause’ offers options for participants to add sexual activities to the
existing list by entering them into the consent form or agreeing to them
verbally. The sexual consent form includes an ‘Accidental Violation’ section
allows the parties decide whether it would be treated as an accident or as an
assault should there be a violation of the agreement without fault or intent.
Furthermore, the ‘Failure to Perform’ section recognizes the possibility of an
inability to perform the activities listed on the form and does not consider
this a violation of the agreement. Essentially, the sexual consent form is
consent made easy, nearly perfect.

One
may call this agreement a contract seeing as it satisfies the requirements or
the basic elements of a contract as stated in Bilante International Ltd. v.
NDIC [2011] 15NWLR (Pt. 1270) 407, which includes offer,
acceptance, consideration, capacity to contract and intention to create legal
relation. However, such document will hold no legal weight as a contract in
court for the primary reason that enforcing such an agreement will be contrary
to public policy, public morality and may cause legal difficulties. It is
necessary to clarify that the sexual consent form is not a contract in the
strict sense but may be good enough as proof of consensual sexual relations
between the parties.

There
have been concerns that this seemingly simple fashion of establishing consent
poses more menace than it genuinely attempts to solve. Professor Felicity Gerry
QC, a specialist in sexual offences, says that if someone signed a consent form
but was later forced to have sex, the document could undermine a rape complaint
(4).
People may even be coerced into signing an agreement. Felicity Gerry opined
that reducing Rape, a serious crime, to a civil matter or a breach of contract
is wrong and should not be endorsed. Like any formal agreement, the sexual
consent form can be abused or used as an instrument to commit crime.

 People want a safe and secure environment for
interpersonal relationships. Considering the possibility sexual consent to
create chaos, the easier way to alleviate false rape allegations would require
that laws are enacted to prosecute any person who makes false rape allegations.
In the United Kingdom, Individuals suspected of making a false allegation of
rape may be charged with the civil crime of “wasting police time” or
the criminal charge of “Perverting the Course of Justice”. Over a
five-year period ending in 2014, a total of 109 women in the United Kingdom
have been prosecuted for crimes related to making false accusations of rape (5). However, this also
does not come without its downsides (6).

Conclusively,
sex contracts have been introduced to help the conversation surrounding consent,
to avoid misunderstandings, and to create a more pro-active approach to
ensuring that sexual partners are willing participants. The sexual consent
form, disguised as a ‘knight in shining armour’, has demerits which overwhelm
its benefits and while the intentions may be pure, it is an overly-simplistic
and potentially harmful solution.

References

1. Johnston, Lauren. Bryant
statements to police at heart of hearing. CNN. February 2, 2004.

2. Bentley, Rosalind. The Rosewood Massacre: How a lie destroyed
a black town. February 17, 2017.

3. Thomas Heath, Steve Wyche. Pre-Sexual Consent Forms For Wary
Athletes.

4. Goldhill, Olivia. Sexual consent contracts’ are now a thing.
Would you sign? July 15, 2015.

5. Laville, Sandra. 109 women prosecuted for false rape claims in
five years, say campaigners. December 1, 2014.

6. Gibson, Megan. The Problem With Prosecuting Women for False
Rape Allegations. December 3, 2014.

Appointed in 2011, Hon. Justice Musa Nabaruma served  as the Chief Judge of Yobe State for about nine years without any stain or blemish to him as a person or to him as a Judicial officer. Justice Nabaruma was a quintessential Judge, an erudite Judicial officer and a personification of Judicial independence. Independent mindedness, judicial bravery, incorruptibility and deep knowledge of the Law are clear marks of his Lordship’ s  judgements.

The Legal and Political Community will not forget in a hurry his Lordship’s judgements of the Ondo and Anambra gubernatorial election petition tribunals both of which nullified the Respondents declared victories at the pool. Both judgements were confirmed by the Court of Appeal.  These and many more were the legacies of the legal and judicial giant of the Yobe State Judiciary during his life time.

My Colleagues and I at Dele Adesina LP commiserate with the Yobe State Judiciary, members of the Bar and Bench in Yobe State, His Excellency, the Governor of Yobe State and the good people of Yobe State on the loss of their illustrous son.

I pray God blesses his soul and may he rest in perfect peace.

Dele Adesina SAN