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.

 

 

                                                                                                                                                                    
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

The death of Hon. Justice Musa Nabaruma, the Chief Judge of Yobe State is a huge loss to Yobe State Judiciary, the Legal Community in Yobe State, the Government and people of Yo be State and the Nation’s Legal community in general. His Lordship died at the National Hospital FCT Abuja on Monday the 18th of May 2020 after a protracted illness.

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

I commiserate with the exco and members of FIDA Benue, members of the Benue State Ministry of Justice and members of NBA Makurdi Branch on the sad and regretful passing of Lady Christy Kumam Anagende.

Lady Christy was before her passing, the Solicitor General and Permanent Secretary, Ministry of Justice, Benue state and a life member and former chairperson Emeritus of FIDA Benue State Chapter. She died on 17/5/2020 after a protracted illness.

May the good Lord receive her soul and may she rest in perfect peace.

Caroline Ibharuneafe ,Mrs
Member, FIDA Lagos.
Past Vice Chairman
NBA Ikeja Branch
#integrity+accuracy

Recently, the
Presidential Advisory Committee Against Corruption  (“PACAC”) accused the Nigerian Supreme
Court of “reliance on technicalities rather than justice and public interest”
following its decision in the case of Ude Jones Udeogu v.
Federal Republic of Nigeria & 2 Others (SC622c/2019, delivered on May 8,
2020). In a release signed by its chairman, Professor Itse Sagay, SAN
(respected author of the ‘bible’ of Contract Law in Nigeria), PACAC said that
having reviewed the current state of the fight against corruption in the
country, it found that “these kinds of judgments pose a cog in the fight
against corruption especially because high profile individuals and politically
exposed persons already appear to be above the law”, see here and here.

This immediately calls to mind the common use by (Nigerian)
lawyers of the expressions “clog in the wheel of justice” or “cog in the wheel
of justice” or simply “cog” as the learned Senior Advocate of Nigeria has done,
to mean an “obstruction” or  “impediment”
to the administration of justice. It must be pointed out straightaway that the
expression “clog in the wheel” does not exist in the English Dictionary. The
expression is an unwitting Nigerian adjustment of “cog in the wheel”, which has
a totally different, arguably opposite meaning.

 

The idiom “cog in the wheel” or “cog”
means a person regarded as holding a minor but necessary position in an
organisation, or one whose contribution to an organisation is considered
insignificant but is actually important. The Free Dictionary defines it to mean
“someone or something that is functionally necessary but of small significance or importance within a larger operation or organization”, see here. Merriam-Webster
provides a more concise definition: “a subordinate but integral person or part”.
Also “cog in the machine”, the idiom alludes to the role of the
mechanical cog, one of the teeth on a wheel or
gear that, by engaging other teeth, transmits or receives motion. Used
figuratively since about 1930, it sometimes is put as “small cog in a large wheel”, emphasizing a person’s
lack of importance, see here.

 

Ironically, while “cog in the
wheel” or “cog” is commonly used by Nigerians to mean something which slows
down or obstructs progress, a cog or cog in the wheel actually
has the opposite effect, which is that it ensures or enhances progress,
although its contribution to the grand scheme of things may be considered relatively
minor. Situating this within the context of law practice and the administration
of justice, from the learned SAN’s standpoint, decisions which are borne out of
undue reliance on technicalities certainly aren’t cogs in the fight against
corruption.

A proper use of the expression
would be “court
clerks and bailiffs are cogs in the wheel of the Nigerian justice system”. While their contribution to the bigger picture is
arguably minor, the unavailability of a court clerk or a bailiff is sure to
cause some problems. Indeed, a wheel or machine with a missing or
dysfunctional cog may not work at all.

On March 1, 2020, in a publication titled “War
of words as Nigerian English recognised by Oxford English Dictionary” (see here and here), the BBC broke the
exciting news that some Nigerian words and expressions had, deservedly so,
found their way into the Oxford English Dictionary. Against this background, some
argue that Nigerians have evolved their own meaning of the idiom cog in the
wheel, as distinct from the original meaning. Interesting point. However, while
the ‘Nigerianisation’ (hopefully this too will be recognised by the
lexicographers someday) of a foreign word or expression is one thing, the incorrect
use of a known word or expression especially by legal practitioners is quite
another.

                                                                

This is perhaps an opportune time to comment on a
few other words and expressions commonly used incorrectly by Nigerian lawyers.

 

The use of “Of counsel” to simply
mean a lawyer, or a lawyer in a law firm

It is not uncommon to see a lawyer fully employed
in a law firm being referred to as “of counsel”:

 “Tunde Musa, male, Nigerian, of counsel in the
law firm of Tunde Musa & Co.” or simply “Tunde Musa of counsel”.

 “Of counsel” is actually a reference to a lawyer who participates on a
case by case basis in the activities of a law firm. A lawyer in an “of counsel”
position is not actively involved in the day-to-day work of a law firm but may
be available in particular matters or for consultation. The term may also
describe a semi-retired or retired partner who still keeps in touch with the
firm and typically provides high-level advice as a consultant, see here.

 Black’s Law Dictionary, 9^th Edition at
page 401 defines “of
counsel” as follows:

 “1. A
lawyer employed by a party in a case; especially one who – although not the
principal attorney of record – is employed to assist in the preparation or
management of the case or in its presentation on appeal. 2. A lawyer who is
affiliated with a law firm, though not as a member, partner or associate.”The above definitions suggest that lawyers who
simply work in a law firm as counsel without any special circumstances
surrounding their engagement cannot be correctly referred to as “of counsel”.

A recent example where the expression was correctly
used can be found here. It reads: 

“Myma Belo-Osagie recently retired as Senior Partner of the firm. She is
now Of Counsel with the firm, in which capacity she continues to lend her
expertise and wealth of experience to the firm…”

 

The use of “Vide” to mean “by”

Common examples include: “The suit was
commenced vide a writ of summons dated 12^th July 2008″ or
“You cannot institute divorce proceedings vide a writ of summons”.

Vide is rooted in the Latin word vidēre which means “to see” and
is used simply to refer a reader to an item, resource, document, book, passage,
etc. Black’s
Law Dictionary, Ninth Edition at page 1703 simply defines vide as
“See”. Vide ante or vide supra refers
to a previous passage in a text while vide post or vide infra
refers to a later passage.

Vide is therefore an incorrect word to use where a
lawyer simply means to say “by”. 

Examples of the proper use of the word are
“The suit was commenced on 25th July 2017, vide a copy of writ of
summons enclosed” or “An appeal is deemed to have been entered at the
Court of Appeal upon receipt of the Record of Proceedings at the Registry, vide
Order 4 Rule 10, Court of Appeal Rules 2016. 

 

 “Status quo
ante bellum” as the full form of “status quo” in all contexts. 

Nigerian lawyers have been observed to make
statements like “we urge Your Lordship to restore the status quo ante
bellum”, even where the change in the status quo was devoid of hostility
or violence or breakdown of law and order.

From experience, the phrase is commonly applied
generically without regard to the apparent nuances. Quite a few Nigerian
lawyers think that status quo is simply short for status quo ante
bellum. While, it may loosely be used as such, status quo ante bellum
has a slightly different meaning.

A few Nigerian decisions demonstrate the meaning
and proper context of the phrase, see Akapo v. Hakeem-Habeeb & Ors. (1992) 6 NWLR (Pt 247)
266, where Philip Nnaemeka-Agu,
J.S.C. stated as follows:  

“To begin with, the literal meaning of status quo
ante bellum is the state of affairs before the beginning of hostilities.
So, the status quo that ought to be maintained in this case is the state
of affairs that existed before the defendants’ forcible takeover of the
management and control of the family properties which constitutes the wrongful
act complained of in the application.”

 

See also the decision of the Court of Appeal in Olamoyegun
& Ors. Ebun & Ors. (2018) LPELR-46108 in which Chidi Nwaoma
Uwa, J.C.A. stated as follows:

 

“…it is a
harmless order to ensure that peace reigns and for the safety of lives and
property during the pendency of the substantive suit…The meaning and/or essence
of the Latin maxim status quo ante bellum is the state of affairs before
the beginning of hostilities. Therefore, the status quo that ought to be
maintained in this case is the state of affairs that existed before the
hostilities between the parties, which should be maintained until the
determination of the substantive matter.”

While status quo simply means “the situation
that currently exists” and status quo ante means “the situation that
existed before something else (being discussed) occurred” (vide Black’s
Law Dictionary (Ninth Edition) at page 1542), “ante” is Latin for
“before” while “bellum” is Latin for “war” (think belligerent,
belligerency), the phrase status quo ante bellum is therefore indicative
of the existence or threat of hostility and will not be applicable to
situations where hostility or violence did not occur or, is not envisaged.

“It is trite law”?

This is an expression commonly used to refer to a law
or legal principle that is common
knowledge or obvious. It therefore stands to reason that where a lawyer is
flying a whole new kite, that is, arguing a recondite point, advancing a fresh
argument from a brainwave, or seeking to test a new legislation, the expression
“it is trite law” should not be used. Obviously, the use of the word suggests
that the court would be likely to agree with the user since he only states what
is settled law. However, a fresh argument can stand a good chance of
succeeding, or the chance of ice in a furnace. Where there is an appreciable
chance that the court will disagree with the argument and decide the issue for
determination the other way, the use of the expression “trite law” is arguably
inapposite.  

It is also noteworthy that the word trite (from Latin tritus, past participle of terere which
means ‘to rub’) means (an idea) that has become dull, bland, worn out,
hackneyed or ineffective on account of overuse or repetition. Hence, it implies a lack of imagination or original thinking.
One should reasonably prefer that the meaning of the words and expressions used
one’s brief to be as far from the foregoing as possible.

In Richard Wydick’s Plain English for Lawyers, 5th ed
(2005), at 58, the author described the expression as one of those expressions
that lawyers (and wannabe lawyers) use to give their writing ‘a legal smell’,
but which mean little to a non-lawyer – and may, more dangerously, ‘give a
false sense of precision and sometimes obscure a dangerous gap in analysis’,
see here. The overuse of
the word by lawyers appears to have rendered it, trite.

 

Perhaps a better expression will be “it
is established law” or “it is settled law”.

 

We are all guilty!

The above
is hardly surprising. Law practice is a tradition and new entrants often (they
are actually expected to) prepare their court processes and other documents by
simply adapting those prepared by their seniors or principals, the result being
a passing down of some of these expressions ‘from generation to generation’.  

 

PLEASE NOTE:

 The above is simply a knowledge-sharing effort. No denigration
whatsoever, of person, clime or profession, is intended.  

Kelechukwu K. Okwujiako is a partner
at OkwujiakoLP, a law firm based in Lagos Nigeria. He can be reached at kkokwujiako@okwujiakolp.com

 

On behalf of my colleagues and I, our heartfelt condolence goes out to the family and friends of Kelechi Ohahuna.

Barrister Kelechi Ohahuna Esq. practised in Benin and passed away after a brief illness.

I pray May his gentle sould rest in peace and our thoughts go out to members of NBA Benin Branch and his family.

Caroline Ibharuneafe
Past Vice Chairman
NBA Ikeja Branch
#integrity+accuracy

I hereby extend my deepest condolences to members of NBA Ahoada Branch on the passing of Prince Enwerem who was also the Chairman of the NBA YLF Ahoada Branch.

Prince Enwerem would surely be missed by his family, friends and colleagues who held him in high regard for his gentlemanly and professional approach. His commitment and dedication towards the welfare of young lawyers was most welcome and I commiserate with his family.

I pray that God comfort all who knew him personally and may his soul rest in peace.

Caroline Ibharuneafe,Esq
Past Vice Chairman
NBA Ikeja Branch.
#integrity+accuracy

On behalf of my colleagues and I at Dele Adesina LP,  I commiserate with the Benue State Government, members of the Ministry of Justice, Benue State and members of NBA Makurdi Branch on the passing of Her Royal Highness Lady Christy Anagende on 17th May 2020.

Until her sad passing, Lady Christy Anagende, whose pleasant personality was a distinguished trademark was the Permanent Secretary and Solicitor General in the Benue State Ministry of Justice. Most definitely, she would be missed by her family and colleagues.

I share my heartfelt condolences with the her family, His Excellency, Dr. Samuel Ortom, the Executive Governor of Benue State and the good people of Benue State.

May the good Lord grant her learned soul eternal rest, Amen!

Dele Adesina SAN

#OBSCURELEGALFACTS by Arome Abu

‪In Nigeria, members of the Army, Navy and Air force on duty, are exempted from paying road tolls.

Tolls are levies collected to recover expenditure for road construction & maintenance.

See Section 235(1)(a) of the Armed Forces Act.

Arome Abu is the Principal Partner of TCLP.

CAVEAT: Note that this information is provided for general  enlightenment purposes and is not intended to be any form of legal advice.

Obscure Legal Facts is an exclusive daily publication of THE COUNSEL L-P.
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