NBA-SPIDEL Set to Hold Webinar on Contradictory Ex-Parte Orders

The Section of Public Interest and Development Law (SPIDEL) of the Nigerian Bar Association, has concluded plans to hold a webinar on the worrisome spate of confusing and contradictory court orders which have become common in the polity, in recent times.

In a statement by the SPIDEL Chairman, Monday Ubani said: “The purpose of the discourse is to examine the resurgence of this often absurd orders, especially as they are usually obtained outside the territorial jurisdiction of the legal matters in question.

“Are there legal and political implications, including consequences for such bizarre happenings, that is beginning to form the norm in our legal and political process as a nation?

“What of the legal practitioners who file these processes, with the knowledge of territorial jurisdiction and fundamental fair hearing which ex-parte orders deny to the other parties? Have they not breached our professional ethics?

“If both Bench and Bar are culpable, what are the prescribed and statutory penal measures available?

“These and more, shall form the fulcrum of the webinar”, he said.

The webinar will hold on the 14th of September, 2021 at 4pm, and will be moderated by Professor Paul Ananaba, SAN.

‘Sokoto Criminal Justice System, is Speedy and Responsive’

Sokoto State is one of the largest States in Nigeria, by virtue of its land mass. Its vastness and being a border State, presents it s own peculiar challenges, especially in the area of justice administration. The recent upsurge in banditry and trans-border crimes, hasn’t helped matters. Last weekend, in an interesting encounter with the Attorney-General and Commissioner for Justice of Sokoto State, Sulaiman Usman, SAN, the learned Senior Advocate spoke to Onikepo Braithwaite and Jude Igbanoi on the achievements of his Ministry during his tenure, including the innovations inserted in the Sokoto State Administration of Criminal Justice Law 2019, and how he handles justice administration in a State that operates a dual system of criminal law, while he bore his mind on what has become a vexed issue in Nigeria, that is, the issue of open grazing. He also stated that serving as an Attorney-General under a ‘Lawyer-Governor’ is not a tea party, as a display of high skills and intelligence are imperative

Learned Silk, it baffles many that with the vastness of Sokoto State, it only has one Division of the High Court. How are you able to manage cases throughout the State? Or is it that the rate of formal litigation in Sokoto is low? If so, what other dispute resolution mechanisms are available for litigants?

Divisions of the High Courts and indeed, any other court, are created for administrative convenience and to bring justice closer to the people. Return of cases is also a factor in creating Divisions. Sokoto State has always had Divisions of the High Court right from 1976 when it was created out of the then Northwestern State, which comprised of the present Niger State and some parts of Kwara State. Before the creation of Kebbi State, we had Sokoto, Zuru, Yauri Birnin Kebbi, Mafara and Gusau Divisions. After creation of Kebbi we retained Sokoto, Mafara and Gusau Divisions, and when Zamfara State was created in 1996, we were left with the Sokoto Division only. Isa, Gwadabawa and Tambuwal Divisions were created in 2003, and the Divisions started working with temporary court rooms and facilities then. The Administration of Attahiru Bafarawa awarded contracts for the construction of the High Court Division in Isa, Gwadabawa and Tambuwal, but the projects were later abandoned.

However, the present administration of Rt. Hon. Aminu Waziri Tambuwal has awarded contracts for the completion and remodelling of the three Divisions, and they are near in completion. The rate of litigation in Sokoto is not low but, it is not high; but currently, because of increase in population and business activities, we have seen an upsurge in litigations in the State.

What are your views on how Sharia Law is being implemented in the Sharia States vis-a-vis Sections 262 and 277 of the 1999 Constitution of Nigeria, which set out the jurisdiction of the Sharia Court which does not extend to criminal jurisdiction?
Yes, Sharia Law has been administered and implemented in Sokoto, since the inception of the Sokoto Caliphate in 1804. Colonial rule introduced the main body of English law in Nigeria 1867, after the treaty of cessation was made in Lagos. In the places where the indirect rule was introduced by the British, the Sharia which was then regarded as part of the Customary Law was allowed to continue, though subjected to a system of superimposed court as an appellate court to review decision of Native and Provincial court.

Under the 1999 Constitution, like its predecessor the 1979 Constitution, the Sharia Court of Appeal is still limited to jurisdiction in matters of Islamic personal law relating to Wakf, Gift, Marriage, Inheritance, Custody of Children etc.

One Ismail Isah was recently arrested for Blasphemy in Sokoto, and his arrest attracted wide protests. The international community have expressed concerns over the fairness of his trial. Under which law will he be tried? Aside from the fact that Sokoto has a partial implementation of Sharia Law, the Holy Quran does not prescribe death for Blasphemy, nor does the Sharia Court have the jurisdiction to try the case. Kindly, share your views on this matter

The Sharia Penal Code Law is part of the dual criminal justice system that operates in Sokoto State, and 11 other States in Norther Nigeria. It has comprehensive provisions to deal with the case. The Sharia Court allows legal representation and will grant fair hearing to the accused, and there is a right of appeal up to the Supreme Court.

The problem with civil and criminal appeals from the Sharia Court of Appeal since the decision of Sharia Court of Appeal in Kanawa v Maikasit , Bashir Gidan Kanawa v Alhaji Sani Maikaset (2007) 10 NWLR (Pt. 1042) 283 where Section 17 of the Sokoto State Sharia Court Law 2000 was declared null and void for being inconsistent with the provision of the Constitution of the Federal Republic of Nigeria 1999. It is the High Court now that can hear appeals from the Upper Sharia Court of Appeal on criminal matters and Civil Matters, other than those of Islamic personal law.

Insurgency has had a negative impact on criminal justice administration in most Northern States. What has been the experience in Sokoto where there have been recent incursions by these criminals in recent times? Scores have been killed, including some vigilantes and village heads.

Our experience indicates that, bandits have recruited informants from the population that give them information about the movement of troops, and all measures taken to stop their rampage. In Sokoto State strategies have been developed to put a stop to aiding and abetting banditry, armed robbery and other terrorist activities.

Experience has shown that Attorneys-General serving under Governors who are Lawyers, find it challenging. This is because the Governor usually knows the law, so the quality of legal advice the A-G has to give, must be highly exceptional. Kindly, share your experience under His Excellency, Governor Aminu Tambuwal with us.

It is an axiomatic fact that Attorneys-General serving under Governors who are Lawyers find it challenging, because the quality of legal advice and every thing you do must be standard. You must display high skills and diligence.

In my case my Governor is not just a Lawyer, but someone who practiced from the beginning of his membership of the honourable profession till he became a Member of the House of Representatives in 2004. During his stint in the National Assembly, he was Minority Leader, Deputy Chief Whip and ultimately, Rt. Hon. Speaker. He brought to the Governorship, tremendous, knowledge wisdom and remarkable experience, so being Attorney-General under such a great and versatile Lawyer who is also a Life Bencher and a distinguished Bar Leader has not been easy.

Happily, however, he is someone I know very well and with I have related closely with since the time when I was a diploma Law Student at College of Legal Studies Sokoto in 1991. He was at my Call to Bar ceremony in October 2000, and I did my National Youth Service under his watch and supervision. He has impacted on my life positively, and related with me more like a brother in the last 30 years

Kindly give us an insight into the jurisprudence of the Sokoto State Criminal Justice Administration Law (2019). What are the major innovations?

The major innovations of Sokoto State Administration of Criminal Justice Law 2019 as against ACJA 2015 administration are contained in the following sections;

1. Section 7(2) of the Sokoto State ACJL which is equivalent to Section 6(2)(b) ACJA 2015. We made some addition by adding the phrase “Shall be given access to the Legal Practitioner so chosen”, unlike ACJA 2015 under which the accused is given only right to consultation without emphasis of the right to access to a legal practitioner so chosen. The rationale of adding the phrase, is to bring the provision into conformity with the provision of Constitution on the accused’s right to have access to Legal Practitioner.

2. The Proviso to Section 7 of the Sokoto State ACJL equivalent to Section 6 of the ACJA. In this area, we have added the phrase “By usual means of communication” because Section 6 of the ACJA does not provide by what means the notification to the next of kin or relative(s) of the suspect shall be effected. By this added phrase, the next of kin or relative of the suspect can be notified through verbal message, text message or letter in writing.

3. Section 8 of the Sokoto State ACJL equivalent to Section 7 ACJA. Sub-section 8(2) is a new sub-section that has no equivalent provision in Section 7 of ACJA which only prohibited arrest in lieu, without necessary sanction against a non-complying officer. Section 8(2) of the ACJL makes non-compliance with sub (1) of the Section 8 as misconduct, and added that it shall be dealt with in accordance with relevant Police regulation under the Police Act, or any other disciplinary procedure prescribed by any provision regulating the conduct of the officer of the agency or establishment.

4. Section 9(5)(a) (b) of the Sokoto State ACJL. This is a new innovation, because there is no equivalent provision in Section 9 of the ACJA 2015. The Sub-section seeks to interpret the meaning of arraignment and the requirement of valid arraignment. This settles the controversy, as to when can accused person be said to have been validly arraigned before the court.

5. Section 10 of the Sokoto State ACJL equivalent to Section 9 of ACJA 2015. We have arranged the sub-sections, so that the provisions of the sub-sections will follow each other in their logical sequences. Sub-sections (3) of Section 9 of ACJA 2015 is now Subsection (2) of the Sokoto State ACJL. The reason for the rearrangement is that, searching a suspect will logically follow his arrest, and not after he was granted bail as styled by ACJA 2015. Sub-section (4) of Section 9 of ACJA is deleted in Section 10 of the Sokoto State ACJL, because the intendment of sub-section (4) of ACJA 2015 is captured by the provision of sub-section (1) (b) of Section 10 of the Sokoto State ACJL.

6. Section 16(1) (d) (iv) of the Sokoto State ACJL equivalent to Section 15(1) (d) (iv) ACJA 2015. We added in such other means of identification of the suspect “to include fibres, biometrics, DNA among others”. This addition is made in anticipation of technological advancement, because fibres, biometrics, DNA are also other means of science by which a suspect can be scientifically identified, without having recourse to physical evidence through a forensic analysis

7. Section 195 of the Sokoto State ACJL equivalent to Section 196 ACJA (2). We have added the phrase “and such other means of identification that are practicable” to extend the means the Defendant can be identified, in addition to the photograph and fingerprints impression which appear to be restrictive. By the added phrase, other means of identifying the Defendant can be resorted to and filed along with the charge as an alternative to photograph and fingerprint impression which may not be available.

8. Section 36(1)(b) (Same in the both the Sokoto State ACJL and ACJA). The provision under the ACJA is “contain all necessary particulars”. The Sokoto State ACJL went on to elaborate. In the sub-paragraph (b) of Section 36, we added the following phrase “Such as the name of the person to be arrested, the nature of the offence he is suspected to have committed, the period within which the warrant will be executed”. The phrase is intended to provide what constitutes particulars of a warrant, and to restrict its period of execution. By the added phrase, the Defendant will be privileged to ascertain the nature of the offence alleged against him, whether it is his name that is written on the warrant, and the period within which the warrant is to be executed.

9. Section 94 of the Sokoto State ACJL/ACJA (same in both laws). In the Section, the following was added “Air, land or Cyberspace:”.
We observed that equivalent provision in ACJA 2015 has not covered land, Air and Cyberspace, thereby, making the provision narrow in items of territorial jurisdiction. Hence, it was felt that since offences can now be committed in cyberspace, there is need to have an express provision that deals with them.

10. Section 104 of the Sokoto State AJCL/ACJA. (same in both laws).

ACJA 2015 in its originality, recognises only information as the means of initiating criminal proceedings in the High Court. In our ACJL, the word “Charge” was added as an alternative to information, so that either of the two can be used to initiate criminal proceeding. However, where either of the two is used to initiate criminal proceedings, the format as contained in the schedule attached to the Law must be complied with.

11. Section 305 of the Sokoto State ACJL equivalent to Section 306 ACJA. This Section creates an innovation that is not contained in Section 306 of ACJA. In the form of an exception to the general rule, that there can be no stay of proceedings in criminal trials. The exception is to the effect that, where the matter has been referred to the Court of Appeal as a case stated which touches on the jurisdiction of a trial court, it is more reasonable to stay proceedings until the issue of jurisdiction is determined. This is since, a judgement no matter how well it is decided, will amount to nullity where it is decided without jurisdiction.

Sokoto State is on record to have the stiffest law in rape and child abandonment, yet these crimes continue to soar. How have you dealt with this?

Crime is the product of society, no matter the level sophistication. We have been trying a lot to combat crime, yet, there appears to be an upsurge. I think the increase in population, and the reporting mechanism that we adopted ensuring proper documentation may be some of the reason. Especially given the fact that Sokoto State is a Spotlight State, with several GBV response teams that are very active. We also have a very responsive criminal justice system, that ensures speedy prosecution and speedy trial of cases up to Court of Appeal. Even at the Supreme Court, our Criminal Appeals are determined on the average within two to three years maximum. We will continue to enforce laws vigorously; and speedy and recent data has shown that the curve is bending downward.

Speak to us on the issue of widespread incidents of girl-child marriages, where we hear of children as young as 12 – 15 years being married off to older men. What is the position of your law and the attitude of the Government on this worrisome issue?

I do not know that we have widespread girl-child marriages. Some of the data you get is neither clear nor validated. The average age of marriage in Sokoto, is 18 -19 years.

What is Sokoto State’s stand on open grazing? What ways can you suggest to end the Farmer/Herder crisis?

Sokoto State supports a shift from open grazing to ranching, in line with current realities. But, I must say that the open grazing that takes place in Sokoto State is seasonal, after harvest; with minor incidents in few areas, because of the difference in time of harvesting crops due to climatic factors.

We need to adopt a mixed grill of measures, from advocacy and reorientation to make our herders realise the need adapt to changing times, demarcations of grazing routes and preservation of grazing reserves. The Agricultural Research Institute must develop animal feeds, and we must also expand irrigation farming to make farming a year-round activity, thereby producing enough feeds that are cheaper for our animals, and thereby, discouraging trans-human movement.

Honourable Attorney-General, are you a proponent of amnesty for Boko Haram insurgents and Bandits? Kindly, give reasons for your response.

I support both kinetic and non-kinetic means of combating banditry, insurgency and terrorism.
What are your views on the payment of ransoms to kidnappers?

Payment of ransom should be discouraged. Our security agencies should be equipped to develop skills and strategies of tracing and disarming kidnappers, and freeing their captives unhurt.

The issue of courts of concurrent jurisdiction giving conflicting court orders is becoming a big problem in our judicial system, especially when it comes to political cases. What can be done to stem this tide?

Conflicting court orders from courts of coordinate jurisdiction, is a recipe for anarchy and loss of confidence in the justice system. It is an embarrassment to the Judiciary, and pollutes the system of justice. The #EndSARS process should be a lesson for the legal profession, in respect of the ripple effect of loss of confidence in the system. We must now amend our laws, and restrict jurisdiction of courts to the local limits of their judicial divisions where the cause of action arose. This is one way we can eliminate forum shopping opportunities in our laws. We also need to draw from contractual practice, especially in arbitration agreements, by inserting choice of jurisdiction clauses in the constitutions of political parties in the event of dispute,
difference, or controversies between members. The Rules of Professional Conduct for legal practitioners needs to be equally amended, to make it a misconduct for any Lawyer who engages in forum shopping and multiplicity of court actions arising from the same facts and transactions. We also need to embark on law firm regulation.
Thank you Honourable Attorney-General.