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PERSPECTIVES ON UNLAWFUL DETENTION IN NIGERIA by Kayode Omosehin

by Legalnaija | Sep 10, 2015 | Uncategorized

Credits – Google

One of the sacred liberties of man is
the liberty to move freely. Unless where legitimate exception is permitted by
law, any limitation on a man’s liberty to move freely is an infringement on his
fundamental right. In Nigeria, such infringement is actionable either as a
common law tort called false imprisonment or as a breach of constitutional
right of personal liberty guaranteed under Section 35 (1) of the 1999
Constitution of the Federal Republic of Nigeria (Third Alteration Act) to the
effect that “Every person shall be entitled to his personal liberty and no
person shall be deprived of such liberty save in the following cases and in
accordance with a procedure permitted by law”. It should be stated clearly
that different procedures of enforcement apply in pursuing a case of false
imprisonment and a constitutional right enforcement for unlawful detention. In
this piece, no distinction is made between false imprisonment and unlawful
detention except where such distinction is necessary for clarity.

Unlawful detention denotes a restraint
of a person in a bounded area without any justification. The infringement may
arise from a restraint by a private citizen as well as detention by agencies of
the government such as false arrest by the Police. The person so restrained is
said to be a “prisoner” so long as he has no liberty to freely go at any time
(however short) to any place he wishes without bail or otherwise. It is
important to mention that several other fundamental right breaches or torts
(such assault, battery, degrading treatment or even crimes) may arise from the
same act(s) which constitute(s) unlawful detention. However, unlawful detention
is the focus of this piece.

The following circumstances may give
rise to unlawful detention:

1. Being locked up in a
room, car, airplane, cinema, toilet, goal post or any other enclosure without
the victim’s consent;

2. Being unlawfully
detained in the custody of the Nigerian Police, Nigerian Immigration Service,
Economic and Financial Crimes Commission, Nigeria Armed Forces (including
Nigerian Civil Defence Corps), or any Nigerian Agency vested with or without
power to arrest and detain;

3. Being held up at a
gun point with threat of being shot if you try to move,

Elements of Unlawful Detention

There are three elements of unlawful
detention which the Nigerian courts have upheld over time and which a person
claiming unlawful detention must prove by credible evidence:

1. A total restraint on
the movement of a person. This is usually not difficult to prove unless where
the restraint is not a total restraint but a partial one.

2. The restraint must
have been without consent or justification. Where the plaintiff consents to
being restrained, he cannot longer complain about being restrained. However,
care should be exercised in knowing when consent to be restrained is revoked so
that any further restraint after revocation of consent will be unlawful and
therefore an unlawful detention.

3. There was no way out
of the restraint or restrained area. Please note that where an alternative way
out of the restrained area exists, the claim for unlawful detention cannot be
sustained if the plaintiff fails to take it. However, the plaintiff will be
justified for not taking the alternative way out of the restraint if doing so
will endanger him life or limb.

The above elements are co-extensive and
all must be proved. Where the plaintiff fails in any of them, the action for
unlawful detention will fail.

Credits – Google

Arrest and Detention by Police

Detention by the Police or any other
body or authority, no matter how short, may be a breach of fundamental right by
both the Police and the complainant. But that can only be so if the detention
is found to be wrongful or unjustified in the first place. The period of
detention is not relevant in making a case of unlawful detention. This is
because infringement of unlawful detention is a complete deprivation of liberty
of a person for anytime without lawful cause, however short. It is therefore
essential for the detained person to demand to be let out, the refusal of which
will make the infringement complete.

The power of arrest by the Police is
provided in section 24 of the Police Act and the power is undoubtedly wide and
susceptible to abusive interpretation by the law enforcement agency. Corollary
to the power of arrest is the power to detain a suspect under section 29 of the
Police Act. Similar provisions conferring wide power to arrest is contained in
the enabling law of the EFCC, NDLEA to mention a few.

However, the courts have interpreted
the provisions on the power to arrest and detain very strictly against the
Police. The test of whether a detention by the Police is unjustified turns on a
(sometimes) elusive question of whether the Police had a reasonable suspicion
that the detainee had committed an offence. It appears that the test of
reasonable suspicion may be a subject of manipulative interpretations. However,
the courts have agreed that the test is that of a reasonable man. Therefore,
the question usually asked is whether in the opinion of a reasonable man, the
detention by the Police is based on a reasonable suspicion.

Liability of the Complainant of a Crime

An unsavory part of a case of unlawful
detention is the role played by a complainant who has gone to the Police with a
false allegation that a person has committed a crime. The common saying
regarding oppression of man by man is no less exemplified by the use of state
machinery to harass and intimidate a private citizen. I am not by any means
suggesting docility in reporting a crime to the law enforcement agency. It is
in the interest of our collective security to ensure that no offender escapes
the wrath of the law. However, a considered caution ought to be exercised in
ensuring that an allegation of crime to be made to the Police is based on
reasonable, probable ground. Instructively, it is an offence under the Freedom
of Information Act, the Administration of Criminal Justice Law of Lagos State
and several other penal laws to give false information to a law enforcement
agency or any other constituted authority.

The law is well developed by Nigerian
courts on the issue to the effect that anyone who lodges complaint with the
Police, out of malice or in bad faith, leading to the arrest and/or detention
of another person (the suspect) is also answerable in law for the detention,
harassment and/or injuries caused to the suspect. Therefore, the determining
question usually asked by the court is whether in the opinion of a reasonable
man, was there a reasonable or probable cause to make the complaint to the
Police? If the answer is yes, the complainant has no liability in any action
subsequently brought by the detained person. But if the answer is no, then the
complainant (and the Police) are jointly and severally liable to the person so
detained for unlawful detention.

The plaintiff has the duty to prove
that the complaint ought not to have been made and that there was no reasonable
ground for making it. It is not enough for a plaintiff in a claim for unlawful
detention to plead and provide evidence that the defendant made a report
against him to the Police but he must also plead and establish that there was
no reasonable and probable cause for making the report or that the report was
made out of malice or bad faith. The complainant will be found liable where the
report made to the Police is based on false and incorrect information. See Agbakoba
v. SSS (1994) 6 NWLR (Pt. 351) 475 and Ejiofor v. Okeke (2000) 7 NWLR (Pt. 665)
363.

Some defence counsel have relied on
some Court of Appeal’s decisions in submitting that where an individual has
merely lodged a complaint to the Police and the Police thereupon “on their own”
proceeded to carry out arrest and detention, then the complainant is not liable
as the act of imprisonment is that of the Police. The foregoing submission is
not only curious in my view but also tends to put the blame of any wrongful
arrest (and detention) solely on the Police in that it exculpates the
complainant from the required obligation to ensure that only accurate, true and
correct information is supplied to the Police. I have earlier stated that it is
an offence to furnish wrong information to the Police. In other words, every
complainant is obliged to verify the authenticity of the allegation of crime
before reporting to the police. It is therefore inconceivable for a complainant
to plead to be excused from liability where a person has been wrongfully
detained on his false allegation. Any submission seeking to excuse the
complainant from liability in a case instituted for unlawful detention ought to
be discountenanced in any circumstance where it is clear that the arrest was
wrongfully made, particularly where any the following elements is present:

1. Where the Police
fails to investigate a defence of alibi; or

2. Where the complainant
is acting under malice or bad faith against the plaintiff; or

3. If the basis for the arrest is
otherwise an exercise of the plaintiff’s lawful right (e.g. right to lawful
assembly, freedom of expression, right to self-defence, etc) and therefore ought
not to have been arrested ; or

4. Where the complainant insisted
that the plaintiff must be arrested or engineered the arrest of the plaintiff;
or

5. Where the detaining authority
does not have the power to detain or in any other ways in which the complaint
leading to the detention ought not to have been made if the complainant was
acting reasonably.

The Test of Reasonableness and the
Element of Malice or Bad Faith

The common test of whether or not the
Police ought to detain a person is the test of a reasonable man. The test is
better appreciated in its application to cases than in definition. In applying
this test, the court tries to look at the allegation against the suspect
through the eyes of a reasonable man. A reasonable man, according to the
Supreme Court in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 is a man
with or who possesses a good, reasonable faculty who acts sensibly, takes
proper but not excessive precautions, does things without serious delay and
weighs matters carefully but not over specifically. So, if in the eyes of a
reasonable man, in the opinion of the court, the suspect ought not to have been
detained, the court will likely hold that the Police has acted wrongfully by
detaining him. Where the detention does not pass the test of reasonableness,
the detention will be declared unlawful.

In my own perspective, a man making a
complainant to the Police should be deemed unreasonable if he is any of the
following:

1. If he is acting on
vengeance or vendetta directly or indirectly against the plaintiff; or

2. If he is over-zealous
or acting under speculations, extremities or idealisms; or

3. If he supplies the Police with false or inaccurate information howsoever.

Bad faith and malice connote some bad
motive or ill-feeling nursed by the complainant against the suspect. The
position of law is clear that malice or bad in itself will not ordinarily
expose the complainant to liability if indeed the offence reported to the
Police was actually committed by the suspect. The truth of the allegation
overrides any element of malice or bad faith of the complainant against the
suspect, and is a complete defence to any civil action by the suspect. In that
circumstance, the malice or bad faith is just a motivation as the suspect is
culpable anyway.

However, where the allegation is false,
bad faith or malice will be imputed to the complainant. If for instance, a
creditor lodges a complaint of stealing to the Police regarding a debt owed to
him by a debtor, any detention of the latter on such complaint may give rise to
an action for unlawful detention. It will be unlawful (and therefore
unreasonable) for the complainant to report a case of stealing in respect of a
loan and for the Police to dabble into what in law is purely a private commercial
relationship between two citizens. Also, where a suspect gives statement to the
Police upon being arrested and claims alibi (i.e. that he was at another
place at the time of the offence and therefore did not commit the offence), it
will be reasonable for the Police to investigate his claim of alibi.
Detention without investigating the alibi will be unreasonable and can
give rise to the presumption bad faith. The foregoing are just instances, the
category is not closed.

The underlying meaning bad faith (and
when it can be implied) was clearly muted by the English Court in the case of Melton
Medes Ltd. V. SIB (1995) 3 All ER 88, in which it held in pages 889-890
that

“The term ‘bad faith’ has variety of
meanings in different contexts. Thus in the field of administrative law,
where the validity of a decision or act is challenged on this ground, it is
sufficient that the power to decide or act has been exercised for purposes
otherwise than those for which the power was conferred or without regard
to the relevant, or only the relevant considerations. There is no necessary
moral connotation.” (Emphasis
supplied)

I like to emphasize that the test of
reasonableness and malice or bad faith is appreciated more in practical sense
than in theory. Except in few instances, there is hardly any decided case which
serves as precedent for another in determining whether a detention or complaint
passes the test of reasonableness. Each case ought to be treated on its own
merits.

The Use of Police or EFCC to Recover
Debt

A rather strange practice of using the
machinery of the State as a debt recovery agent has featured recently in
commercial dealings. Nigerian banks and other financial institutions are in the
practice of employing the Police or EFCC to harass and intimidate their debtor
into reaching a compromise in respect of a debt owed. Whilst the details of
each of the cases are not the subject of this piece, it is important to state
that the practice is not only repugnant to commerce but also unlawful. It is
repugnant to commerce because it creates fear and tension in commerce and
discourages small business owners from subscribing to the opportunities offered
by financial institutions. It is unlawful because because the Constitution
forbids the use of Police or EFCC or any other state machinery to arrest and
detain a citizen without any legitimate reason. The courts have declared
that law enforcement agencies are not debt recovery agents and therefore should
not be consultants to banks and other financial institutions in recovering
debts from their customers. A case of unlawful detention may be made out
against a financial institution and a state authority engaging in this
unconstitutional practice.

Remedies for Unlawful Detention

The remedy for unlawful detention is monetary
compensation and public apology. Once a person proves that his right to liberty
has been infringed by a tort of false imprisonment, the court is empowered to
award compensation on liberal terms to that person against the party who
committed the unlawful detention and everybody who takes part in it. See Jim
– Jaja V. Commissioner of Police Rivers State and Ors. (2013) 6 NWLR (Pt. 1350)
225.

Injunctions can also be granted to
prevent recurrence of such unlawful detention. With a proactive legal team, unlawful
detention can be entirely avoided by an ex parte injunction (which is a
type of injunction granted by the Judge without the knowledge of the person
against whom the injunction is sought).

The plaintiff must make a claim for a
certain sum of money as the court is not Father Christmas and therefore will
not award a relief not claimed. The amount to be awarded varies depending on
several factors to be considered by the court such as the status and reputation
of the plaintiff, the duration of the detention, any pecuniary loss to the
plaintiff attributable to the detention, and so many others. The enforcement of
the monetary award made against the Police or EFCC is usually enforced by
attaching any fund in a Nigerian bank standing to the credit of the Police or
EFCC.

Nigerians are encouraged to challenge
the breach of their constitutional right by the Police or any other law
enforcement society. Nigerians should not be discourage by the rather slow
system of justice. The wheels of justice grind even, though slowly. It is by so
doing that we can have a better society free for us all. Many will become
richer by so doing.

Kayode Omosehin is a lawyer practising in Lagos, Nigeria with the law firm Ajumogobia & Okeke.

THE EVOLUTION OF DIVORCE LAW AND PRACTICE IN NIGERIA by ABIMBOLA LAOYE

by Legalnaija | Sep 10, 2015 | Uncategorized

Credits – divorce.legal

Background

Marriage is a universal institution
which has been in existence from time immemorial. It can be traced as far
back as the very creation of man and is considered to have spiritual, moral and
social significance in society. It is therefore revered as sacred and
thus heavily guarded by various religions, traditions, social norms
and laws alike .

In Nigeria, the sanctity of marriage
cuts across all regions of the country regardless of culture and religion. The
major types of marriages that existed in the pre-colonial era were the
cultural/traditional marriage and the Islamic/Maliki marriage. The type of
marriage practice was determined by the prevalent traditions or religions which
governed the society where the parties live in or where they originated from.

Although the main hub of a marriage is
bliss and happiness similar to fairy tale endings, marriage is soon found
by most to be a far cry from that . In fact for most parties the
protection of marriage by culture and religion lands them in the eternal trap
of marriage. In some cultures such as in the northern parts of Nigeria
women have little or no say in their marital lives as a result of the age old
culture of forced/child marriages and betrothal from birth.

The concept of Marriage and divorce
affects Nigerian women more than it affects men due to the deep rooted culture
that all women should be married leaving women with little or no
choice as to what direction or dimension their lives should take. Hence
more women are trapped in a hellish or short life as a result of
being stuck in abusive marriages.

Divorce or dissolution of marriage on
the other hand is considered to be an abomination because it is
perceived to whittle away the sanctity of marriage. The outright discouragement
of divorce by all societal forces creates unfair double standards,denial and
religious apathy; For example, the law against bigamy, a frequent occurrence
among men, including those professing Christianity, has never been invoked;
also the acceptance of concubines in the traditional Nigerian culture is
accepted by both men and women alike.

Various traditions and religions have
also been known to condone divorce by means as simple as a unilateral action of
returning the bride price to the parents of the bride; by simply professing
divorce by word of mouth three times(as is seen under Islamic
law), returning her to her parents’ house,or deserting
her by simply walking away from the marriage. Sometimes abandoning the wife
with children who she must cater for by herself whether she is capable
financially or not or whether she is old enough to cater for them or not (in
the case of child marriages).

The same cannot be said of the marital
standards set for the Nigerian woman. Women in the Nigeria are generally
subject to the whims of their husbands, who may choose to throw them out and in
the streets without any form of support if he so desires and without any
consequences whatsoever. The decision by women in Nigeria to divorce is not undertaken
lightly as the consequences of divorce are more severe for women . Women
are caught between the ocean and the deep blue sea whereby they have to make a
difficult decision of enduring an unhappy or abusive marriage or face the shame
that stigmatization that awaits any woman who dares to have the
courage to divorce her husband and father of her children. Seeking divorce
increases discrimination in jobs, sexual harassment, societal
ridicule,financial difficulty,loss of custody of children and loss of property
rights.

Common Law Marriages

The advent of colonialism brought about
common law marriages in Nigeria. In England there were several reforms which
are the bedrock of the Nigeria’s position today.The promulgation of the
matrimonial causes act in 1970 ushered in the co existence of common
law/statutory marriages, Islamic/Maliki marriages, and customary/traditional
marriages. Lord Penzance defined marriage in Hyde V. Hyde (1860) LR.I PD,
130 as:

“the voluntary union for life between
one man and one woman to the exclusion of all others”.

Under the law, marriage is generally
viewed in the law as a civil contract, an emotional bond and a financial
partnership. The procedure for the dissolution of marriage is likewise
expressly spelt out by the same act.

Divorce on the other hand has not found
statutory definition in any of the Acts. The rate of divorce in Nigeria has
increased gradually but slowly evidenced by the higher number of divorce
petitions brought before the courts. The astronomical increase in divorce in
Nigeria has been predicated on a plethora of reasons by various researchers
scholars such as the westernization of Nigerian citizens and the requisite
disappearance of “African values”. Others maintain the stand that the mothers
and wives of old would stay in a marriage even at the cost of their very lives.

Whether or not marriage remains a union
for life as stated by Lord Penzance remains an arguable topic. The Matrimonial
Causes Act created a window into the chance for a life of quality as against
being trapped in a mental and/or physical hell of an abusive marriage for
Nigerian women.While the courts recognise the fact that marriage is not an
institution that should entered into carelessly or recklessly, the courts have
also set a check and balance system by taking into consideration the fact the
human beings are not infallible for instance;marriages could go horribly
wrong to the extent of causing grievous harm mentally physically or both; and
the prevalence of child marriages in some regions of Nigeria may necessitate
the requisite dissolution or nullity of marriage.

It is for this reason the courts have
set up a check and balance between the sanctity of marriage and the need to
live a life of quality and dignity. Thus the general rule as contained in the
Matrimonial Causes Act that divorce proceedings cannot be instituted within two
years of the solemnization of a marriage without the leave of the Court the
only exception to this rule is on the grounds that the marriage has broken down
irretrievably. This tactic of making divorce proceedings cumbersome will
discourage divorce in our society.

Credits- google

The principle of the irretrievable
breakdown of marriage as a ground for divorce is based on the idea that:

“A good divorce law should be to
buttress, rather than undermine the stability of marriage, and when unavoidably
a marriage has broken down irretrievably, the empty legal shell of the marriage
should not only be buried, but buried “with decency and dignity and in a way
which will encourage harmonious relationships between the parties and their
children in the future”.

The court in the case of in Shokunbi
v. Shokunbi CCHCJ/7/76, p.1913 S.C also stated thus:

“It is the actual state of the marriage
that the court has to inquire into, as to know, whether or not, it is still
viable, rather than concern itself with the question of guilt or innocence or
either party which point is irrelevant”.

The irretrievable break down of
marriage must however be proven by the petitioner who must satisfy the
court of the existence of one or more of the following elements as contained in
section 15 (2) and 16(1) of the act:

Grounds For Dissolution Of Marriage:

1. That since the
marriage the Respondent has behaved in such a way that the Petitioner cannot
reasonably be expected to live with the Respondent. In Johnson V. Johnson
1972 11 CCCHCJ 94, unreasonable refusal of sexual intercourse, nagging
habitual intemperate consumption of alcohol and inordinate sexual indulgences
of the Respondent with all sorts of women particularly housemaids were held to
be weighty and unreasonable acts to expect the Petitioner to put up with.

2. That the Respondent
has deserted the Petitioner for a continuous period of at least 1(one) year
immediately preceding the presentation of the petition.

3. That the parties to
the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the Petition for divorce and the
Respondent does not object to a decree being granted.

4. That the parties to
the marriage have lived apart for a continuous period of at least three years
immediately preceding the presentation of the Petition. Here, there is no
requirement that the other spouse should not object to the Petition being
granted. This provision is a “no fault” provision which allow a painless.

5. That the other party
to the marriage has, for a period of not less than one year failed to comply
with a decree or restitution of conjugal rights made under the Matrimonial
Causes Act.

6. That the other party
to the marriage has been absent from the Petitioner for such time and in such
circumstance as to provide reasonable grounds for presuming that he or she is
dead.

7. If she has a
reasonable fear that her life, body or health is in danger; physical violence
is not necessary and reasonable fear of danger is enough

See the cases of Otunga v. Otunga
(Unreported) WD/119/70 of 19th April 1971; Oki v. Oki (Unreported) WD/80/70
of 30th July 1971; Ekrebe v. Ekrebe (1999) 3NWLR (pt.596) 514 at 517.

In divorce
proceedings, the courts put into consideration all issues affecting
parties to the marriage such as children, whether biological or otherwise and
other issues which were totally disregarded under customary law.Such matters include
the following:

1. Property Dispositions

Under the act settlement of property is
based on what the court considers to be “just and equitable in the
circumstances of the case” for the benefit of any or all of the parties
involved, whether the spouses and/or children of the marriage (biological or
otherwise). (See part iv of the Matrimonial Causes Act 1970).

This is unlike divorce under customary
law whereby the woman is expected to return every penny of the bride price to
the man, and also the woman is not entitled to any house even if it is jointly
owned with her husband

2. Child Custody

The courts determine custody and
maintenance of children based on the “means, earning capacity and
conduct” and “all other relevant circumstances of both parties to the
marriage, such as the age of the children. (See section 70 of the
Matrimonial Causes Act 1970).

This is unlike customary law which has
the general rule that any child born of the marriage belongs to the father,
with the exception of suckling babies the mother may keep until the father
requests for custody of the child.

PROCEDURE

The High Court in any Nigerian state,
with the exception of Imo, has jurisdiction over the dissolution of marriages
that have taken place under the act. Dissolution of marriage is commenced by a
petition issued against the party seeking the divorce (see order 3 rule 1 of
the Matrimonial Causes rules 1983).

Where leave is required to commence
divorce proceedings in court on the grounds stated in order 30 and 40 of the
matrimonial causes act, such leave may be obtained exparte by the party seeking
divorce (see order IV (1) matrimonial causes rule 1983)

Where the ground(s) for dissolution of
marriage is adultery, the alleged co adulterer must become a party to
those proceedings, (see order 3 rule 2(5) of the matrimonial causes rules
1983).

A judicial separation can be granted by
the court, allowing a couple to live apart but without dissolving the marriage.
Judicial separation does not allow parties to remarry; it is therefore not a
divorce in itself but serves as a precursor to actual divorce. The court may
then issue a decree nisi where satisfied that the marriage has indeed broken
down irretrievably. A decree absolute serves as the final order of divorce
wherein the court will issue an enrollment order evidencing the final
dissolution of marriage.

The matrimonial causes act does
not provide for the dissolution of a customary or Islamic marriage.

Review of The Matrimonial Causes Act

One of the first assignments tackled by
the Nigerian Law Reform Commission which was set up in 1979 was a review of the
Marriage Act. The commission pointed out the inherent flaws in the existing
matrimonial causes act and commendably set out to remedy the said flaws as
follows:.

1. Definition of
Marriage

The commission by its bill set out to
modify the definition of marriage to cover both the monogamous and polygamous
systems which is practiced under the traditional/cultural system and the
Islamic/Maliki system.

This innovation of the commission is
the creation of a system for the registration of both customary and Islamic
marriages. Such registration is voluntary and falls within the responsibilities
of the Registrar of Marriages.

2. Age

Age at the time of the marriage being
one of the greatest predictors of marriage is lacking in laws governing
marriage in this country. The commission recognized the absence of a legal
marriageable age for Nigerian and inserted in the proposed Bill a marriageable
age of 16(sixteen) years for boys and (14) fourteen years in respect to girls.

However the age of 14 and 16
respectively is pegging the age of marriage well below the constitutional age
of maturity as stipulated in section 29 of the 1999 Constitution of The Federal
Republic of Nigeria. This to my mind will not in any way encourage the
empowerment of women or improve the ordeal faced by Nigerian women. It will
rather encourage child marriages which have not benefited any economy in any
way.

See also Section 29 (4) (b). Sec 21 and
Sec 22 of the Child’s Right Act of Nigeria 2003 (CRA); Article 18 (3) of the
African Charter on Human and Peoples Rights; and Article 27 of the African
Charter on the Rights and Welfare of the Child.

3. Foreign Marriage

Again, the Bill provides for the
validity of marriages celebrated outside Nigeria if such marriages conform to
the lex loci celebrationis.

The Bill also provides for the
celebration in Nigeria of marriage under foreign law. The requirements however
include the giving of notice to the Registrar of Marriages, entry of the notice
in the Marriage Notice Book and the need for the Registrar’s Certificate.

4. Bigamy

The commission while taking note of the
non-enforcement of the offence of bigamy made the bid to strike a balance
between the abolition of bigamy as defined in the Marriage Act and the practice
of polygamy and polyandry under cultural/traditional and Islamic/maliki
marriages. the bill abolishes bigamy as an offence but still retains the
principle that an existing monogamous marriage constitutes a bar to a
subsequent valid marriage.

Conclusion

In conclusion the reform of
inimical practices without the sensitization to the fact that women empowerment
should be a matter of high priority will amount to nothing more than political
expediency and rhetoric. The improvement of the quality of life of women by
recognizing and implementing better access to career patterns towards self
development and independence will be necessary for any laws regarding the
protection of women and the promotion of dignity and a higher quality of life
to be effective.

REFERENCES

1. websites

1. ARTICLES

Bambo
Adesanya, San; Marriage, Divorce and Succession; the Legal Aspect.
Fr Titus Ikechukwu Nnabugwu ; Fault And
No-Fault Principle Of Divorce In Nigeria
Imam,
Ayesha. 25 October 2012. Correspondence with the Research Directorate
Makinde
Oludolapo Toyosi; Legal Framework Of Statutory Marriage Andevolving
Marriage Patterns
Restatement
of customary laws in Nigeria; 2013

3.
BOOKS

Charles
mwalimu; public law; introduction to the Nigerian legal system; volume 1
Barrister
Julie D.A. Oguara; The Monster Called Divorce: The Greatest Tragedy of
Modern-day Families

1. STATUTES

1999
Constitution of The Federal Republic of Nigeria
Child’s
Right Act of Nigeria 2003 (CRA);
Matrimonial
Causes Act 1973
Matrimonial
causes rules 1983
The
African Charter on Human and Peoples Rights;
The
African Charter on the Rights and Welfare of the Child all prohibit girl
child marriages.

DOES YOUR BOSS PAY YOUR PENSION?

by Legalnaija | Sep 8, 2015 | Uncategorized

Credits – Google

I
assume not very many people will be able to say yes to the above question, some
do not even know why I should ask such a question, others on the other hand do
not even realise that they should be getting a pension. Statistics show that a number of
organisations are not contributing to the pensions of their staffs as mandated
by law in Section 1 of the Pension Reform Act 2014.

The
law provides that –

There
shall be established for any employment in the Federal Republic of Nigeria, a
contributory pension scheme for payment of retirement benefits of employees.
The law particularly states that the scheme shall apply to all employees in the
Public Service of the Federation, FCT and the Private Sector. In the case of
the Public Sector, who are in employment; and in the case of the private
sector, who are in employment in an organisation in which there are 15
(fifteen) or more employees.

The
way it works is every worker who is due has a PFA (Pension Fund Administrator)
who keeps a pension fund account on behalf of the employee. A certain
percentage of the employee’s salary is deducted and paid into the account while
the employer also contributes a certain percentage to the account monthly.

Payment
or contributing to the pension of an employee is important as the objective is
to assist individuals by ensuring that they save in order to cater for their
livelihood during old age. If however, pension is so important to every
Nigerian worker, how come a lot of employers, most especially in the private sector,
get away without paying same.What is the National Pension Commission, a body
established to regulate, supervise and ensure the effective administration of
pension matters in Nigeria doing about it.

Most
especially as the Pension reform Act provides that any person who contravenes
provisions of the Act where no other penalty is prescribed commits an offence
and is liable on conviction to a fine not more that N250,000 or to
imprisonment for a term not exceeding one year or both.

Adedunmade
Onibokun

@adedunmade

Dunmadeo@yahoo.com

LEGAL REMEDIES FOR DELAYED FLIGHTS by Sogo Akinola

by Legalnaija | Sep 7, 2015 | Uncategorized

Credits – punch.com

Air travelers in Nigeria oftentimes have been cheated by airline
operators by delays without explanation, loss of baggage and unruly behaviour
from both on-ground and cabin crew members just to name a few. Most Nigerians
go through these hurdles everyday without the simplest apology from the
airlines.

Many airline passengers
are not conscious of the fact that they can be helped by the Nigerian Civil
Aviation Authority (NCAA) when airlines infringe on their rights especially issues
regarding delayed flights.

For
a passenger who has booked a flight departing and landing within the domestic
territory of Nigeria and has confirmed reservation on the flight and also check
in at the scheduled time or no later than 1 hour before departure time is
protected by Part 19 of the NCAA Consumer Protection Regulations which provides for Passengers’
Rights and Responsibilities and Airlines’ Obligations to Passengers. It
addresses consumer protection issues, including, compensation for denied
boarding, delays and cancellations of flights.

For
domestic flights, when an operating air carrier reasonably expects a flight to
be delayed beyond its scheduled time of departure, it shall provide the
passengers with reason(s) for the delay within 30 minutes after the scheduled
departure time and the assistance of:

(i)
After
two hours, refreshments such as water, soft drinks, confectioneries /
snacks and access to telephone calls, SMS and E-mails.

(ii)
Beyond two hours, immediate
reimbursement of flight fare in cash.

(iii) Between
the hours of 10pm till 4am, or at a time when the airport is closed at the
point of departure or final destination, the assistance of a meal, hotel
accommodation and transport between the airport and place of accommodation
(hotel or other accommodation) must be provided.

Aside
the immediate reimbursement in cash, the passenger can claim from 25% of the flight fare as compensation.

Complaint
Procedure

Every
airline shall have a designated officer for the purpose of receiving and
resolving complaints from its passengers. Such designated officers may liaise
with the Authority where necessary.

A Passenger may make a complaint with the Authority against an
airline in relation to the breach of air passenger rights as provided in the
Regulations by filling and submitting a Complaint Form(available online and at
all airports), after the consumer must have notified the air carrier of such a
breach and the complaint remains unresolved.

A
complaint shall be made in writing or electronically and transmitted to the
Authority.

Every complaint shall be accompanied
by:

(i)
A copy of the airline ticket (where
applicable);

(ii)
A copy of the letter to the air
carrier stating a claim for breach of air passenger rights;

(iii)
Any response or responses or
correspondence thereto;

(iv)
Any other relevant document(s).

If
the Consumer Protection Directorate of the NCAA rejects your review, you may
refer the matter to the Consumer Protection Council (CPC). Finally, if the CPC
fails to uphold your complaint, you may take the matter to Federal High court.

The airlines and
operators have responsibilities to make sure that the service they provide is
of quality. When next your flight is delayed simply smile back to the bank, it
is very easy.

BY- Sogo Akinola

OPINION: The Imperativeness of Justice in Nigeria: Fact or Fiction? by Arikor Ogonnaya

by Legalnaija | Sep 4, 2015 | Uncategorized

Credits- Google

“Do for others what you want them
to do for you: this is the meaning of the Ancient Laws of Moses and the
teachings of the prophets.” (Matt. 7:12. Good News Bible.)

Retribution
and reparation remain the two principal concepts behind establishing any
criminal justice system. The final end, cause or design of men, who naturally
love dominion and liberty, is the introduction of some restraint upon them, the
ultimate purpose which is for the preservation of their lives. Man is miserably
entangled in the web of deliberate amity, such that if left to his noxious whims,
he might inevitably self-destruct.

However
most Nigerians would reach the obvious conclusion, upon the slightest instance,
that justice is a rare commodity or a reserved luxury meant only for the sole enjoyment
and pleasure of the rich in Nigeria. As a poor person, don’t even bother about
dreaming of justice for you were not meant to be compatible with the concept of
justice. But it may peradventure interest the proponents of such idea that
justice can never be bought nor delayed; natural justice, that is. The truth
remains that you must reap what you sow. The conspicuous certainty is there. What
any individual who has bribed the criminal justice system simply got was the
human justice which has a temporary alignment. When the time eventually comes,
nature must take its due cut, and there can be no bargaining with that. As for
the law, it will remain blind if the ultimate goal were not justice.

Maybe
I am speaking Greek or Latin. With the constant news and instances of bribery,
corruption and intimidation emanating daily from our justice system; the clear
cases of ‘big’ men and politicians going scot free after it is clearly
established that they had brazenly stolen public wealth. Where and how then can
one claim that the much needed justice has been achieved in such cases? Sadly, it
is a world renowned fact that Nigeria is corrupt; the world has taken due
notice of this fact. On the contrary, however, virtually not all the cases of
corruption go unpunished. I stand to be corrected. Granted, such individuals
might have gotten some form of reprieve, but such reprieve lasts only as long
as nature is asleep. And when nature awakes, which must be sooner than not, apparently
such individuals must face the consequences of their actions.

The
laws of nature are totally unlike the laws of men. What man might think he’s
escaped with the fallible and corruptible laws of men, nature has that thing around
the corner waiting for him. What some people don’t understand is that former
Delta State governor James Ibori is currently facing the consequence of his
actions committed while in office, one way or the other. Even though the
Nigerian criminal justice system has failed in this regard, that doesn’t mean
another would fail. Same for many others like Ibori. The huge volume of adverse
publicity and public shaming they are getting from being harassed by law
enforcement alone and the subsequent extra-large amount of the inner turmoil they
undergo tell of the fact that nature is taking its course. There can never be
peace for the wicked.

A
friend of mine staunchly posits on the side that Karma’ is really not in existence, that it remains a creation of our
imagination; something which merely exists in dreams and fantasies. Apparently,
his view that Karma is hastened by
the fact that nobody has ever seen ‘Karma’
to know the form and structure he/she/it took; none can tell if ‘Karma’ were a he, she, or even sexless.
Hence the staunch insistence that Karma is not, and has never been in
existence. It would be pointless trying to argue against such view, though. The
result of such argument understandably will be ambiguous.

But
in order to cut a long story short, it is my belief that ‘Karma’ does indeed exists, and it remains very much alive, though
in what form or sex, I can’t tell. A simple illustration will suffice here: Once, a man living abroad sent some money to
be used in constructing a house for him back here in Nigeria. Because of the obvious
untrustworthiness which has pervaded social and family unions, he sought the
services of a professional building expert to build the house. The construction
engineer consulted, as is the norm of some, used the most inferior materials he
could lay his hands on in building the house. Upon arrival, the owner saw how very
beautiful and lovely the house looked. For having nothing to appreciate the
engineer, the owner there and then, during the house warming gifted the house
to the engineer. Immediately the engineer began crying profusely, and only then
did he confessed that he used inferior materials that might soon collapse the house.
Of course, anyone is free to draw whatever moral he/she’d to draw from the
above story but it is certain that whatever evil we may plan for others would
only boomerang at us one way or the other. Our Karmas are personal and they are
real.

Left
for man to impassionately or impartially judge between men, only a handful or
so can successfully deal equally between men without the negative complexities
of intrigues or the express likelihood of bias. That is to be expected for it
is mans’ nature to be swayed by emotions or filial or social affinities. Man
has always tended to cripple the law for his unjust demands. There are few
things that are incapable of swaying men, and they might not be found amongst
us here. That notwithstanding, it is not to be said then that justice can
permanently be denied.

The
experience of sister countries has provided us with a vivid opportunity to see
how well justice is the underlining factor of human existence and human
relationships. The realization of justice in Nigeria, however, requires more
than the adoption of aspirational laws. It requires a critical reassessment of
the reasons underlying our flawed criminal justice system. The starting point
could be a revamp of the wrong legacies which we’ve imbibed down the years.
Efforts must be made to unlearn the lessons already learnt. More significantly,
however, Nigerians must come to expect that justice in practice will reflect
justice on the books. Only then will the concept of justice move beyond the
books, and into the lives Nigerians.

Conclusively then, I will state categorically
that though the wheels of justice may be slow to grind, nevertheless they
surely must grind one way or the other. Retribution and reparation must be done
to any who transgresses. We just can not escape the inevitability of it. If
further proof be needed for the assertion that justice must run its due course,
the spherical nature of our globe is a pointer to that fact. What goes around,
comes around. Albeit it is a fact of life that anyone who has done wrong must
get his full measure back. No matter the time it will take, but it must surely
happen, one way or the other. Hence, I leave you with these instructive words
of the late reggae legend, Lucky Dube, “Be
good to the people on your way up the ladder because you’d meet them on your
way down. That’s the way life is.”

WRITTEN
BY ARIKOR OGONNAYA.

ADMINSTRATION OF CRIMINAL JUSTICE LAW IN FEDERAL COURTS

by Legalnaija | Sep 3, 2015 | Uncategorized

Credits – Google

The justice system in Nigeria has been plagued
with several factors which have contributed to the slow and unsteady grinding
of the law especially as regards criminal matters. These factors which seemed
institutional have led to the propositions of various strategies for reforming
the ailing system of administration of justice in Nigeria. Gladly, the
Administration of Criminal Justice Act 2015 has brought those reforms to the
fore.

For the purposes of criminal jurisdiction,
Nigeria is divided into the North and the South. The criminal justice system in
the north was based on the provisions of the Criminal Procedure Code (CPC)
while the south had its criminal administrative system based on the Criminal
Procedure Act (CPA). However the Administration of Criminal Justice Act 2015 merged
the Criminal Procedure Act (CPA), Criminal Procedure Northern State Act 2004 and
CPC into one principal Federal Enactment to apply to all Federal Courts across the
federation.

There are numerous laws contained in the ACJA
2015 which are welcome and have been needed for a very long time. A study of
these provisions reveal the aim of the Act is to promote efficient management of
the criminal justice institutions, ensure speedy dispensation of justice, protect
the society from crime and preserve the rights and interests of defendants and victims
of crime.

For instance, it was the culture of the police
to arrest a family member or kin in place of an accused person, however, Section
7 of the ACJA which deals with arrest prohibits arrest in lieu. This means a
person shall not be arrested in place of a suspect. Furthermore, the Police
have been accused of torture and inhuman treatment in the past hence the Act in
Section 8 also provides that a suspect shall be accorded humane treatment
having regards to the dignity of his person and shall not be subjected to any
form of torture, cruel, inhuman or degrading treatment.

It was a normal phenomenon for accused persons
to allege torture by the police before making confessional statements hence the
provision of S. 15 (4) ACJA provides for – electronic recording of confessional
statement on video or any other audio visual means. This is to curb the
allegations of violence on suspects while in custody and to prove the
voluntariness of that statement in court.

S.24 (1) ACJA also in a bid to prevent
congestion of police stations and detention centers provides for – the Chief Magistrate or where there is no Chief
Magistrate within the police division any magistrate designated by the Chief
Judge for that purpose, shall at least every month, conduct an inspection of
police stations or other places of detention within his territorial jurisdiction
other than the prison.

Section 270 also brings about the introduction
of plea bargaining – The Act states that – the defence can write to the
Attorney General for plea bargain; the prosecution may enter into plea
bargaining with the defendant, with the consent of the victim or his
representative during or after the presentation of the evidence of the prosecution,
but before the presentation of the evidence of the defence. Also the IPO must
also be informed of the plea bargaining agreement.

S. 293 -296 of the ACJA provides that a
suspect shall not be remanded for not more than 14 days at first instance and renewable
for a time not exceeding fourteen days where “good cause” is shown. At the
expiration of the remand order, if Legal Advice is still not issued, the court
shall issue hearing note to the Inspector General of Police and Attorney
General of the Federation or the Commissioner of Police or any other authority
in whose custody the suspect is remanded to inquire into the position of things and adjourn for
another period not exceeding fourteen days for the above mentioned officials to
come and explain why the suspect should not be released unconditionally.

Where good cause is shown, the court shall
remand for a period not exceeding fourteen days for arraignment of the suspect
and where good cause is not shown, the court shall have power to discharge and
release the suspect.

S.396 (7) ACJA – checkmates the effect of
elevation to the court of appeal from the high court wherein judges who had
been elevated will leave all case files and pending suits before their courts
behind, matters which are usually reassigned to other judges and directed to
start afresh. This is indeed another novel provision in the ACJA. Section 396
(7) ACJA provides that a High Court Judge elevated to the Court of Appeal shall
have the discretion to continue to sit as an High Court Judge only for the
purpose of concluding any part- heard criminal matter pending before him at the
time of his elevation and shall conclude the same within a reasonable time.

Sadly the ACJA applies to Federal Courts and
the F.C.T, meaning not the provisions will not be applicable to states and
state high courts, however Lagos State has passed its own Administration of
Criminal Justice Law which is similar to the ACJA. It is recommended that other
states adopt the provisions of the ACJA and ignore the provisions of the CPA
and CPC which have become old and archaic.

Adedunmade Onibokun, Esq.

dunmadeo@yahoo.com

@adedunmade/twitter

QUOTE

by Legalnaija | Sep 3, 2015 | Uncategorized

Credits – Dailypostng.com

The words of the then Speaker of the Nigerian House of
Representatives, Rt. Hon. Aminu Waziri Tambuwal at the public hearing of the
bill for the enactment of the administration of Criminal Justice Bill vividly
captures the need for continuous judicial reform of any nation.

“….human society is dynamic; the system of administration
of justice cannot be static but must be improved to create more effective and
efficient mechanisms, procedures and institutions for dealing with the new
realities and challenges in the society. This is because it is impossible to
have a sound economy without a solid foundation of good laws that can curb
anti-social behaviours and other disruptive tendencies. As we develop plans and
strategies for the economic and other forms of reforms, we also need to develop
plans and programs for creating sound laws and procedural systems consistent
with our commitment to our legislative agenda.”

From: Presentation at the
Nigerian Bar Association Annual general conference, Abuja 2015 on Current
Developments in Judicial Reforms in Nigeria by Obi Okwusogu, S.A.N, Fciarb

XENOPHOBIC LAWS IN NIGERIA

by Legalnaija | Sep 1, 2015 | Uncategorized

Credits – dailymaverick.co.za

South
Africa was in the spot light a few months ago after the Zulu king, Goodwill
Zwelithini, was reported to have said that foreigners “should pack their
bags and go back home”. The king later denied making those comments but
within days the violence had spread to the country’s most populous city Johannesburg.
The comment led to the harassment, assault and in some extreme cases the death
of persons who were immigrants in South Africa. These violent act was
criticized the world over and thankfully the South-African authorities were
able to get things under control, though a lot of damage had already been done.

Xenophobia
can be described as the fear of strangers or foreigners. In Nigeria, there have
been tensions between various ethnic groups in the past, some resulting in
violence. Nigeria’s online community is very active and can cause an issue or
comment to trend in a very short time, thus imagine a situation where a
xenophobic comment is shared and allowed to trend, this could pose a major
problem for everyone. That’s why our laws prohibit xenophobic or racist
comments even on online media.

Credits – cnn.com

The
Cybercrime (prohibition, prevention,etc) Act 2015 in Section 26 provides that any
person who with intent distributes any racist or xenophobic material to the
public through a computer system or network or insults or threatens persons for
the reason that they belong to a group distinguished by race, colour, descent,
national or ethnic origin, as well as, religion or who distributes material
which denies or approves or justifies acts constituting genocide or crimes
against humanity shall be liable on conviction to 5 years in prison or to a
fine not less than N10,000,000 (Ten Million Naira) or both”.

For
the sake of interpreting the law and trying to figure what can constitute a genocides
or xenophobic material, genocide means acts committed with intent to destroy in
whole or in part, a national, ethnic, racial or religious group. Racist or
xenophobic material on the other hand means any written or printed material or
any image which advocates, promotes or incites hatred, discrimination or
violence against any group or individuals.

It
is quite important that while tweeting and sharing on the web, we should be
careful not to make any inciting, racist or xenophobic statements. Not to also ignore the criminal liability that comes with assaulting another person or inciting others to commit assault.

Adedunmade
Onibokun, Esq

dunmadeo@yahoo.com

@adedunmade

The role of Nigerian lawyers in our society

by Legalnaija | Aug 28, 2015 | Uncategorized

Credits – google

The role of a lawyer
depends on where you find him. If you
find him in court, then he is a litigator, whose role is to plead the case of
his client before the judge, if he is an in-house counsel, his duty is to
promote and represent the best interests of his company, ensuring the company
does not go foul of statutory rules and regulations. Lawyers could also be
found in government agencies or private practice as well. The role of a lawyer
may vary from place to place, however, one significant role a lawyer plays is
to provide non-lawyers with legal advice. The lawyer is also the custodian of
the rule of law, it is said that a lawyer is a minister/priest in the temple of
justice and it is his duty to ensure that the wheels of justice keep turning.

Society has created many
rules and regulations for the co-existence of mankind and it is also the role
of lawyers to interpret these rules to society. A lawyer could be a superhero
sometimes, he/she represents clients who sometimes cannot pay or are in some
form of terrible jam, either self inflicted or by a stroke of luck/ill – luck. In
a nutshell, a lawyer is saddled with responsibility of using his services to be
there for anyone who needs his help, just like a doctor.

Credits – Google

In a democratic society
like ours, lawyers also play a vital role as the custodian of justice. The conscience
of the people and a bridge between the government and its people. Alexis De
Tocqueville once stated that “When one visits Americans and when one studies
their laws, one sees that the authority they have given to lawyers and the
influence that they have allowed them to have in the government form the most powerful
barrier today against the lapses of democracy”. The above quote shows the vital
role lawyers have played in developing and nurturing the United States of
America.

I don’t think I have always
wanted to be a lawyer, I remember my Dad once asked me if I wanted to be a
lawyer or a business man when I kept brimming with business ideas. I also
remember in primary school, I was about 7 and we were having a costume party at
school, I adorned the lawyer’s wig and gown and sang the words “I am a lawyer
in my country and everybody knows me well”. Maybe an angel was flying by that
day and decided to grant me my wish because I am now a lawyer in my country,
Nigeria. However, as I grew to understand my role and responsibility in the
larger society, I knew it was my duty as a lawyer to use my services to make my
country and the world at large a better place.

Credits – Google

That brings me to the question,
what is the role of lawyers in Nigeria today?

No doubt, Nigeria is experiencing
pretty interesting times. Corruption has finally reached epic proportions as
stolen loot is now usually calculated in billions of naira and dollars.
Terrorism is threatening from the North-East, the protection of human rights
are not issues on the front burner, the rule of law is not sacrosanct and there
is a major lack of enforcement of legal rules, regulations and procedures. There
is a complete lack of accountability in government and the moral fabric of
society itself is falling apart at its seams.

The Nigerian Bar Association is
currently having its annual conference in Abuja, the country’s capital and many
of the issues raised above will certainly be on the lips and minds of many of
the participants. But rather than focus on personal briefs, buying private
jets, building vast partnerships and handling election petitions when will the
Nigerian lawyer recognize the role and responsibility awaiting him. When will
he realize that the downtrodden masses need him to come to their rescue, when
will he summon up the courage to challenge government on its policies which are
crippling us a people, when will he fight for reforms and march on the streets
in a bid to secure the rights of his fellow Nigerian whom faith has put in his
care.

Maybe the revelation will come to
the Nigerian lawyer now and maybe not. However, if you are a lawyer reading
this blog or you know anyone who is a lawyer, ask them or yourself this
question, WHEN WILL YOU COME TO NIGERIA’S AID?

Adedunmade Onibokun Esq.

@adedunmade

Dunmadeo@yahoo.com

WINTER IN NIGERIA by Ahudiya Ukiwe

by Legalnaija | Aug 27, 2015 | Uncategorized

Add captioncredits – nigerianeye.com

Catchy subject, right? Sort of incorrect, somewhat
inappropriate if you may? Same thoughts that flood my mind whenever I see
“Summer” anything in Nigeria, like “Summer” lessons,
“Summer” sales, “Summer” concerts etc. I was taught in
Primary School, correct me if I am wrong (and believe me, my school was and
still is posh o, with awesome teachers, no try me) that there are basically two
(2) seasons in Nigeria: rainy season and dry season (otherwise known as
Harmattan and I call African Winter). The rainy season spans from May to July,
then the popular August break and continues into September. The dry
season/harmattan begins mid-December into the middle of the next year.

Like seriously, we Naija people must LITERALLY copy
copy everything foreign. I agree there are some foreign material that ought to
be, scratch that, that MAY be copied (like some aspect of fashion, note
that I said SOME oooo, not all because we have gone over the top than the
originators of some fads; music;) but kai, at least we can take style (subtly)
to be original about it. Why should we adopt the Oyibo people’s weather when we
do not have any similarities, okay maybe save for the mutual heat in their summer.
But nevertheless, “Summer” clothes, “Summer” hairstyles,
“Summer” gifts? How naaaaaa, how does this apply to us Biko? We might
as well have Fall, Spring and Winter options, mscheeew.

It really would be nice, more of ingenuity of our
fashion designers, entrepreneurs to award us (being the Nigerian consumers)
with adverts such as Harmattan Sales, Harmattan Clothings, Styles to rock in
the Harmattan, August break hairdos etc rather than the mediocre mirror of
foreign weather and its seasons.

Oh well, simply are my thoughts, my opinion. In all, Naija we hail thee.

By: Ahudiya Ukiwe

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