Unending controversy over River’s Acting Chief Judge’s appointment

By EGUFE YAFUGBORHI, Port Harcourt

As the infighting in the Rivers State ruling Peoples Democratic Party, PDP, lingers by the day, every action and inaction of one faction somewhat aggravate the situation. Penultimate week, it was the appointment of an Acting Chief Judge of the State that provoked a new war of words between both sides.

Indication that Governor Rotimi Amaechi's appointment of an Acting CJ two weeks ago was going to create a fresh controversy emerged the day before when the Governor and his allies were conspicuously absent at the valedictory session in honour of immediate past CJ, Justice Iche Ndu as he retired from the office.

While Amaechi and key functionaries of his administration stayed away from Ndu's retirement ceremony, Myefon Wike made a robust showing at the event with the State PDP Chairman, Felix Obuah in a guests list that also included current President of the Nigerian Bar Association NBA, Okey Wali SAN.

The next day however, the Governor  waspresent at the swearing in ofthe Acting CJ following the  vacancy created. In a brief event early in the day, Amaechi swore in Justice P.C.N Agumagu who was the President of the Rivers State Customary Court of Appeal before the latest appointment.

[caption id="attachment_412237" align="alignnone" width="300"] *Justice P.C.N Agumagu (l) and Governor Amaechi[/caption]

In spontaneous reaction, the Grassroots Development Initiative, GDI, a group championing Wike’ s political course  picked holes in Amaechi’ s choice of Agumagu.   In a press briefing in Port Harcourt, President General of GDI, Bright Amaewule noted that where a vacancy occurs in the office of the Chief Judge, Section 271(4) of the 1999 Constitution provides that until a substantive appointment is made, the most Senior Judge of the High Court assumes the position.

He said, ” Now, Amaechi and Worgu Boms (Rivers Attorney General) in clear violation of the provisions refused to swear in Justice Daisy Okocha who is the most Senior Judge of the High Court of Rivers in an acting capacity until the niceties of appointing a substantive Chief Judge are fulfilled.

Hon. Justice Daisy Okocha happens to be the same Judge that both the Rivers State Judicial Service Commission and the National Judicial Commission recognized and recommended to Governor Amaechi for appointment as the new substantive Chief Judge.”

Stressing that Justice Agumagu is not qualified as appointed by the Governor pursuant to Section 271(4). Amaeawulethus advised Governor Amaechi to resign from office.To the new Acting Chief Judge, the GDI said, ” His Lordship knows that he is not a Judge of the High Court of Rivers State and anything he does or purports to do in the period of his usurpation are null and void. Please, do not further lend your name to this travesty”.

Harping on same section of the constitution, the leadership of Rivers PDP in a statement by Jerry Needam, Media Assistant to   the State PDP Chairman, called on the national leadership of the party to expel Governor Amaechi.

Towing same line of resentment, the League of Rivers State Lawyers in Abuja  also warned   that, ” While we are still battling to restore the outsourced State House of Assembly, it is wrong for the Governor to open another battle with the judiciary. Judges have their rules about succession and the NJC is loudest voice. This is not new and many states of the federation have had to use the same uniform rules in choosing a succeeding Chief Judge”.

However,while those opposed to the appointment fumed, Rivers State branches of the NBA and the state’ s Body of Senior Advocate of Nigeria  paid solidarity visits to the Acting CJ at the Judiciary Complex, assuring him of full backing.

Courtesy call

Chairman of the Port Harcourt NBA Lawrence Oko-Jaja, who spoke on behalf of the visiting Rivers branches said,  “Once the head of the judiciary is appointed, the Bar must pay courtesy call on the person.The judges were here yesterday to congratulate him. Who are the NBA to do otherwise. I think he deserve the appointment”.

Head of the Port Harcourt NBA Human Rights Committee   Austine   Ojekudo ,  branded those criticising Agumagu as not knowing the law. saying “ The law recognises that the President of the Customary Court of Appeal at anytime shall rank next to the CJ. In order of precedence he shall rank the highest to the other judges both in the Customary Court of Appeal and in the High Court, so the appointment of my Lord is in order”.  Granville Isetima Abibo (SAN) who led the senior advocates said they were very happy to associate themselves withthe Acting Chief Judge, stressing that Agumagu     s contribution in establishing the Customary Court made him the most interesting person to work with.

In his response, Agumagu said,  “I can perform with confidence because your visit has shown me the Bar is solidly behind me. With the confidence, I can face all odds that may come my way. The little I can afford to do within my short time, I will do”.

Following reports of lawyers      visits to the Acting CJ, former National President of the NBA, O.C.J. Okocha SAN , denounced the statements credited to Granville Abibo claiming support of the Port Harcourt Body of Senior Advocate of Nigeria for the appointment of Agumagu.

Appointment of Agumagu

Okocha said, “ While the said appointment of Agumagu is under the purview of the NJC, it is important for me as Chairman of the Port Harcourt Body of SANs to state that we did not pay any courtesy call, and neither did we issue any statement that it supports the appointment.

The Port Harcourt Body of Senior Advocates has a membership of nearly 20 and none of them except Granville Abibo was present at the said courtesy call. Abibo is the most junior of the SANs in Port Harcourt. He does not have and has never had any authority to speak for the body and ought to be aware of that incontrovertible fact”.

The State Attorney-General, Worgu Boms, in  defence of Amaechi’ s choice of Acting CJ said “ Agumagu is the oldest Judge (in terms of service) now in Rivers State. There is no judge older on appointment. Agumagu was appointed a High Court Judge, was never appointed a Customary Court Judge. I sit as member of the state Judicial Service Commission. Papers there reveal that he was seconded to go and establish the Customary Court of Appeal. I have heard all sorts of comments on this appointment and they are mostly misleading, with no foundation in law.  Nobody should drag the judiciary into politics.”

Human Rights lawyer, Ken Atsuwete in a different perspective said other states before now have also appointed Senior Judges outside the High Court  as Chief Judge, citing a case of Governor Rauf Aregbesola's appointment of a Chief Judge in Osun last year.

Taking exception to Atsuwete     s argument, Livingstone Wechie, Spokesman for the Civil Liberties organisation (CLO) in Rivers state said ” There was  obvious error in the Osun instance, because it was unquestioned, can never substantiate the conflict of Agumagu     s appointment with the law”.

With the prevailing scenario, the Judiciary seems to have been plunged into crisis. The inherent danger is that the people     s quest for justice and reliance on the institution as last hope of the common man is being threatened.

Wechie added that “the right thing to do is for Governor Amaechi to shun sentiments and do what is proper as the Justice Agumagu will remain unpopular just as his appointment is unpopular”.

Required proof for criminal allegations in election petition (4)

By Akintayo Iwilade

No! Do the fundamental components, like Summons- Drafting of Charges- Preferring of Information- Plea Taking and Mandatory recording of plea- Bail Issues- Mandatory presence of Accused person throughout Trial- Acquittal- Conviction- Allocutus- Sentencing etc, which distinguish criminal trials from civil ones, ever find place in Election Petitions which are uncontrovertibly civil in their procedural rules and final outcomes sought? No!

Answering these posers in the negative make it tortuous to locate any logical jurisprudential rationale for imposing a burden of proof required in criminal trials, with unique fundamental components, on so-called criminal allegations in Election Petitions and other civil dispute scenarios.

It is arguable that the Courts may have created the concept of ‘severance of pleadings’, under civil proceedings, to mitigate the injustice that often result from the narrow insistence on the onerous proof beyond reasonable doubt standard for so-called criminal allegations made in civil disputes.

The concept stipulates that the judex must attempt to separate the pleadings with criminal imputations from those without; and thereafter do justice to both- using the two different statutory proof standards respectively. In Arab Bank Ltd v. Ross (1952) 2 Q.B. 216 at p. 229, Lord Denning attempted a simplification of the position, when he humored that; “Even with ordinary common sense, if I happen to find my lost coat with AB, and on a claim for the recovery thereof, I alleged that AB stole the Coat, the fact that I could not prove AB to be the thief does not deny me the recovery of my coat once I establish the coat to be mine and not AB’s”.

Following the Omoboriowo v. Ajasin (supra) authority, the Court of Appeal held, in Aregbesola v Oyinlola, (full judgment as reported in The Nation Newspaper of Friday, December 3, 2010, at pg. A7), that “The interpretation of the foregoing authority presupposes that application of section 137(1) of the Evidence Act to a civil case depends on the contents of the pleadings of each case.

In other words, if the averments alleging the commission of a crime are severable and if following such act of severance, the petitioners’ pleadings still contains sufficient averments which suffices and discloses a cause of action devoid of criminal imputation against any of the parties to the proceedings, then the burden of proof laying on the petitioner is not of a criminal nature beyond reasonable doubt but that which requires proof on preponderance of evidence.

The principle of severance in cases of this nature is of great significance and has been emphasized by their Lordships as seen in the case of Omoboriowo v Ajasin (supra). In other words, the determining factor is whether the allegations, if severed and put into two separate compartments, can be sustained as an entity. If the answer is positive, then proof of one is not dependent on the other but side by side. The crucial determinant factor certainly is dependent on the pleadings of the parties”.

On the severance concept, the key point is simply that pleadings are to be ‘severed’ into two places- the ones with criminal imputations on the one hand and the ones without, on the other.

The ones with criminal imputations will require the proof beyond reasonable doubt standard to succeed while the ones without, will be resolved on the balance of probabilities upon preponderance of evidence. If upon severance, a civil claim still rests solely upon the pleadings containing criminal imputations, the standard will be proof beyond reasonable doubt, failing which the claim also fails.

While highly commendable, the concept of severance failed to cure the illogicality, and fatal legislative and jurisprudential misconception, which necessitated the retrogressive importation of the proof beyond reasonable doubt doctrine into civil proceedings in the first place.  The concept of severance still retains the requirement of proving criminal allegations in civil proceedings beyond reasonable doubt because, the ‘severed’ pleadings, with criminal imputations, must still be proved beyond reasonable doubt else the claims founded on them will inevitably fail. Severance seems useful only where there are other pleadings devoid of criminal imputations and which have the suit’s main justiciable claims attached to them.

Appointing Customary Court of Appeal President

By Emmanuel Aguma

As arguments rage over the legality or otherwise of appointing the President of the Rivers State Customary Court of Appeal, Justice Peter Agumagu,   the Acting Chief Judge of Rivers State by Governor Rotimi Amechi, a Port-Harcourt based legal practitioner and   former chairman   Nigerian Bar Association (NBA), Port-Harcourt branch and Secretary, Nigerian Bar Association (NBA) Rule of Law Action Group, Mr. Emmanuel Chinwenwo Aguma, examines the exercise in the light of  extant laws of the country. And described it as a greek gift, wrong, illegal and unconstitutional.

I start with an unequivocal statement. The appointment of the President of the Rivers State Customary Court of Appeal as the acting Chief Judge of   the   State is legally   and   unconstitutional. I rely purely on the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended (the 1999 Constitution) and case law to so contend.

Section 271(4) of the 1999 Constitution makes it absolutely clear that when the office of the Chief Judge is for any reason vacant as in this case where the incumbent Chief Judge of Rivers State has recently retired and the appointment of the substantive new Chief Judge has not been confirmed in consonance with the provisions of section 271(1) of the said constitution, the Governor shall appoint the most senior Judge of the High Court as the acting Chief Judge.

The Governor of Rivers State, his Attorney General and his Chief of Staff have all contended that the appointment of the President of the Rivers State Customary Court of Appeal is in order because he is the most senior Judge of the Rivers State Judiciary having been appointed into the High Court Bench in “1990 or thereabout”   according to   the Attorney General   before his “secondment” to the Customary Court of Appeal in 2008.

Brilliant argument, but totally misleading and unconvincing. Had the Governor and his Chief of Staff been the only ones making this contention I would not have   bothered at all. I am however intellectually pained and distressed that such a contention can also be made by the   Attorney General of Rivers State who is the official leader of the Bar and is, in my opinion, a distinguished legal practitioner and a leader at the Port Harcourt Bar.

First, the words of section 271(4) of the 1999 Constitution are restrictive, clear and unequivocal. The appointment of the acting Chief Judge must be made, from the rank of Judges of the High Court. The President of the Customary Court of Appeal is not a Judge of the High Court but of the Customary Court of Appeal, which he heads as President.

He therefore is not the most senior Judge of the High Court even if he is the most senior Judge in the Rivers State Judiciary   by date of appointment   which said Rivers State Judiciary comprises of the High Court of Rivers State, Rivers State Customary Court of Appeal, Magistrates’ Courts of Rivers State and Rivers State Customary Court.

Secondly, section 281(4) of the 1999 Constitution makes a similar provision with regard to the appointment of the acting President of the Customary Court of Appeal restricting it to the most senior Judge of the Customary Court of Appeal, which no Judge of the High Court is.

Nothing in the constitutional provisions for the establishment and appointment of Judges of both the High Court and the Customary Court of Appeal including the Chief Judge of the High Court and the President of the Customary Court of Appeal make provision for the much-bandied word, to wit, “secondment”.

Sections 271(1) and (2) and 281(1) and (2) of the 1999 Constitution are very clear on this issue of appointments with regards to the High Court and the Customary Court of Appeal respectively.

The fallacy in the secondment theory is further illustrated by the qualification required of Judges of the High Court vis-à-vis their brothers in the Customary Court of Appeal as specifically provided for by sections 271(3) and 281(3) of the 1999 Constitution respectively. Section 271(3) of the 1999 Constitution makes it mandatory that you must be a legal practitioner to be a Judge of the High Court.

However, by the provisions of section 281(3) (b) of the 1999 Constitution, once the National Judicial Council is satisfied that a person has considerable knowledge of and experience in the practice of customary law, he or she can be appointed a Judge of the Customary Court of Appeal regardless of the fact that he or she is not a legal practitioner.

Reasoned contention

It is therefore my reasoned contention that the High Court of a State and Customary Court of Appeal of a State are distinct and separate Courts even though they are part and parcel of the Judiciary of a State. Their judges are different. Beyond being constituent parts of the Judiciary of a State headed by the Chief Judge of the State, nothing connects both courts. We are supported in this contention by the Federal Court of Appeal’s decision in Ado v Dije (1984) 5 NCLR 260.

In that case, one of the questions for determination is whether a Judge of the Sharia Court of Appeal that sat as a Judge of the High Court in the High Court’s appellate jurisdiction from a decision of an Area Court is a Judge of the High Court. The Federal Court of Appeal held at page 267 and I quote: The 1979 Constitution of Nigeria prescribes in sections 234 and 235 for the establishment of the High Court of a State and the mode of appointment of its judges and of their qualification. Similarly, Sections 240 and 241 of the same Constitution provides for the establishment and Jurisdiction of a Sharia Court of Appeal of a State and the qualification for appointment of its members.

Colour Carnival and Conviviality at Calabar AGC

By Dayo Benson

The just concluded Nigerian Bar Association NBA Annual General Conference AGC, in Calabar, Cross River State Capital , had the trappings of colour, carnival and conviviality.   Obviously nothing less was expected from the state , what with it’s soaring tourists destination identity.

For lawyers, estimated at over 10,000 who kept the serene city awake from Sunday August 25 to Friday 30th, when the conference lasted, the experience transcended   normal Bar Conference.

NBA President Okey Wali SAN’s description of the Calabar Conference as the best so far probably captures general feelings of participants.

Wednesday Gala night which held at the expansive fully air-conditioned conference venue which host Governor Liyel Imoke, described as the “biggest in this part of the world’’ was the highlight of the event.

Grandiloquent deliveries

According to the Governor ,it cost Cross River a whopping N157m to provide the cool,cosy, comfort ambience befitting of such an event. It was a night of few speeches but more of wining and dining and live carnival. It was indeed an oppurtunity for lawyers to unwind after the eloquent and sometimes grandiloquent deliveries of speakers at the opening ceremony and subsequent sessions.Lawyers and non lawyers who started arriving at the venue from 7pm which the Gala Night was scheduled were welcomed by a mini cultural dancing troop outside.Warm admiration and appreciation of the display did not guarantee direct access to the chilly embrace of the multiple entry hall.

Beefy and well built security operatives were busy frisking everyone with deserved politeness.What many were probably not expecting came on after some performances by a female lead life bound. The surprise of the night was preceded by a short documentry on Calabar carnival 2012 .It was a street carnival at its best beamed on the two giant   screens inside the hall.The documentry which featured some notable Nigerian artists and stand up comedians unraveled the attraction of calabar as a compelling tourists centre.

The already enthralled audience got more than what they asked for when the live carnival train stepped on the stage in a larger than life costumes.Their sublime super colourful display saw a sizeable segment of the audience stepping foward with   cameras, Ipads and mobile phones of diverse shapes and sizes to capture the display.

The message passed at the end of the captivating show which lasted about 20 minutes was that Calabar 2013 December carnival promises much more.

Cross river Attorney Gnereal Attah Ochinke captured the mood of the night aptly when he recalled how lawyers have relished the hospitality of Calabar.He also commended NBA for a successful conference.

NBA President   noted that Calabar hosting the AGC was a best decision of the NBA.

proud Governor Imoke affirmed that the State is running an economy driven by tourism and hospitality. He stated that the theme of the conference was meaningful.

For the five days that the conference lasted,the city was a bee hive of activities.Hotels and cab operators experienced an unusual patronage.Same for food and drink joints.

Indeed, the busiest part of Clabar was the Tinapa achepelago, a seperate world on its own.

The undulating landscape was too massive for conferees and others who had one item or the other to sell to occupy. It is as easy to go inside the mega complex as it is to miss your way while navigating the space.Tinapa is still waiting to be explored.The state Government is already constructing another link road that will make access easier.Also under construction is a modern conference centre.

Lake side hotel, located inside Tinapa provided accomodation for NBA officials and some senior lawyers including few State Attorney Generals.The hotel bar was a relaxation spot for revellers at the bar.Some of them spent the days drinking rather than attending any session of the conference.

Clabar hospitality was incomplete without ladies who were available for those interested in what they had to offer. Some   lawyers were not left out in the amoral game of the flesh.

Undoubtedly,the 53rd AGC of the NBA tagged Calabar 2013 with theme ‘’Law,Leadership and the Challenges of Nationhood in the 21st century Nigeria” was an experience worth reliving.

Among several other activities ,the class 1985 of the Nigerian Law School honoured their own who had distinguished themselves.Among them was the outgoing Director-General of the school, Dr Tahir Maman.

The set was hosted by Cross River First Lady Mrs Obioma Liyel Imoke, who is a member of the class.The Class Chairman Chief Emeka Ngige SAN noted urged members to participate in the school’s 50th anniversary as well as it’s endowment fund.

Similarly, class 2003 of the Law School held a lunch to mark its 10th anniversary in which NBA President made a brief Appearance.

As lawyers departed Calabar Friday,it was with a feeling of satisfaction.Despite the usual flight delay at the Margret Ekpo Airport which is under renovation,the Carnival train was at the departure lounge to bid them bye.

Review of the Corporate Immigration Framework

By Olivia Agbajoh

EMPLOYER SPONSORSHIP

ANY foreign national who possesses specialised and relevant skills, abilities and technical know-how required in Nigeria for the development of its economy may be employed to work in Nigeria for a period of time in order to transfer such skills, abilities and knowledge. Before such skilled foreign national can be employed in Nigeria, the employer must prove that no Nigerian citizen possesses the same skills, abilities and technical know-how; it must also have obtained a work permit for the prospective employee to the skilled migrant to work legally in Nigeria.

i. Work permits. No person can legally work in Nigeria without first obtaining a work permit subject to the consent of the Comptroller General of Immigration.

Two kinds of work permit can be issued: a TWP, if the employee’s services are only needed for a short time (e.g., for erection or installation work, feasibility studies, repairs of equipment, audit and accounting, research work); or a CERPAC, if the expatriate is to be employed for a long period of time or on a permanent basis (see Section I.i, supra).

Employment In Nigeria

Before a CERPAC can be issued, the expatriate seeking employment in Nigeria must obtain an STR visa at the Nigerian high commission in his or her country of residence. Upon application to the employer, without reference to the Comptroller. General of Immigration and upon entry into Nigeria, the expatriate will be regularised by the Nigerian Immigration Service within 90 days of the validity of the STR.

Employment criteria include the expatriate’s expertise, experience, qualificationsand investment amount, and also the need for certain skills in Nigeria for the development of the nation’s economy.

There are no statutory provisions for appeals by foreign nationals against the decisions of immigration officers and the Minister of Interior.

Investors, skilled migrants and entrepreneurs

Foreign nationals wishing to establish a genuine business in Nigeria or to invest in the nation’s capital market (whether directly or indirectly, through foreign direct investment or foreign portfolio investment) must obtain a business permit and other requisite permits and licences by applying to the Executive Secretary of the National Investment

Promotion Commission, and secure the authorisation of the Minister of Internal Affairs; failure to do so is an offence under Section 8(2) of the Immigration Act and will result in the deportation of such immigrant. By virtue of Regulation 3(2) of the Second Schedule of the Immigration Regulations, the business permit requires the applicant to state the name of his or her business, its nature and where it will be located.

A foreign company wishing to set up business operations in Nigeria should take all necessary steps to incorporate the Nigerian branch or subsidiary as a separate entity in Nigeria for that purpose. Until so incorporated, the foreign company may not carry on business in Nigeria or exercise any of the powers of a registered company.

A foreign investor wishing to incorporate a Nigerian subsidiary can do so by engaging the services of a lawyer in Nigeria; the lawyer will act as an agent of the
foreign investor who, by giving the lawyer power of attorney, authorises him or her to incorporate the Nigerian branch or subsidiary of the foreign company on behalf of the foreign investor.

Exemption from incorporation

By virtue of Section 56 of the Companies and Allied Matters Act, a foreign company that falls under any of the categories listed below may apply to the National Council of

Ministers for an exemption from incorporation (whether as a branch or a subsidiary). Section 56(a)–(d)8 provides exemptions for the following:

a. foreign companies invited to Nigeria by or with the approval of the government to execute any specified individual project;

b. foreign companies that are in Nigeria for the execution of a specific individual loan project on behalf of a donor country or international organisation;

c. foreign government-owned companies engaged solely in export promotion activities;

and d. engineering consultants and technical experts engaged on any individual specialist project under contract with any of the governments in the Federation, any of

their agencies or with any other body or person, where such contract has been approved by the government.

Once a business permit is obtained, the foreign investor or entrepreneur can only enter Nigeria through the approved port of entry (whether by land, overland or inland waters).

It should be noted that grant of a visa does not automatically guarantee entry into Nigeria; the foreigner’s documents will be subject to thorough scrutiny at the port of entry.

Outlook and conclusions

The Nigerian government has made efforts to create an enabling environment that is conducive for foreigners to come to Nigeria and invest in the country in order to contribute to the growth of the Nigerian economy. However, to successfully achieve this objective, some elements need to be addressed.

Nigeria’s immigration laws are obsolete; they have suffered abuses and require review. There is also a need to intensify Nigeria’s security standards in order to combat the increased threat of terrorism, the smuggling of small arms, light weapons and radioactive materials, child trafficking and cross-border crimes.

The need to set up appeal tribunals is urgent. In addition, companies that employ expatriates must be inspected on a regular basis to make sure that no foreigner is working in Nigeria illegally.

However, it is worth mentioning that, in spite of the above shortcomings, the government is working hard to achieve a safe environment for foreign investment.

In addition, in a fresh move to check the influx of illegal immigrants into the country, the government has taken steps to establish electronic surveillance posts at different locations; these are to be connected to the NISS to ensure the effective monitoring of the nation’s borders.