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Tuesday 7 February 2017
Friday 26 June 2015
LIMIT TO PARENTAL CONTROL OVER THE CHILD IN NIGERIA
An Islamic cleric in a prominent city somewhere in southern Nigeria had given a standing order to all members of his household, including his 10-year-old daugher, not to break their fast during the holy month of Ramadan when this daughter of the cleric, who was observing the Ramadan fast for the first time and was not finding the fast comfortable, was caught breaking the fast at the wrong hour.
Her father, the cleric, became so angry with her that he tied her to a stake and started beating her until she became unconscious. A neighbour, who was perturbed at the treatment the man meted to his own biological child, reported the matter to the police. Does the Nigerian law give room for the role played by this concerned neighbour in the circumstances and is the father of the child liable in law?
Watch out for my legal perspective on this on Monday,29th November, 2015 on this blog.
Thank you.
Her father, the cleric, became so angry with her that he tied her to a stake and started beating her until she became unconscious. A neighbour, who was perturbed at the treatment the man meted to his own biological child, reported the matter to the police. Does the Nigerian law give room for the role played by this concerned neighbour in the circumstances and is the father of the child liable in law?
Watch out for my legal perspective on this on Monday,29th November, 2015 on this blog.
Thank you.
Thursday 25 June 2015
HOW TO SACK YOUR PARLIAMENTARIAN
Some years back, there was a state law maker representing one of the constituencies in the House of Assembly of a state of the Federation of Nigeria I will call the State of the Living. This honourable member of the House of Assembly of that state emerged as his people's representative after his election to the state parliament, not on personal integrity but on the unfounded acknowledgement of his political party as the people's messiah in the state. The political practice in the State of the Living then was that any candidate presented by the party for any election would definitely win even if it was a goat. After all, this party was the messiah in the eyes of the people of the state who lived in hunger and despair about tomorrow.
Some months after he was sworn in as a honourable member of the state parliament, there came a petition before the state parliament by a concerned citizen of the state, who also happened to be a member of his constituency, urging the parliament to probe the reckless management of the state resources by the chief executive of the state and his deputy which had denied the state civil servants the payment of their salaries for eight months thereby plunging the state into a state of economic chaos. In his petition, the petitioner also called for the impeachment of the state chief executive and his deputy for this act of recklessness.
Despite the clamour for justice by the people of the State of the Living, the members of the state Parliament swept this petition for justice in the affairs of the state under the carpet by manipulation.
The honourable referred to above actually played the lead role in sabotaging this petition in connivance with his party members who constituted the majority in the state Parliament and who were in the same party with the state chief executive and his deputy. For this reason, his constituency members were displeased with him and his party who had promised them a fair representation in the state parliament before election.
As the members of this honourable's constituency felt cheated, they all resolved that they no longer wanted to be represented by this undependable legislator and they wanted this to take effect even before the expiration of his tenure. What could they do in the circumstances?
THE LEGAL POSITION
Section 110 of the Constitution of the Federal Republic of Nigeria, as amended, is the law that applies to the above scenario as it relates to the decision of the legislator's constituency members to sack him as their representative. That section of the constitution provides that the registered voters who are members of the constituency of a member of a state House of Assembly, if they want to remove him from office as their representative, shall write a petition to the Independent National Electoral Commission Chairman alleging their loss of confidence in the legislator. The INEC shall, within ninety days of the receipt of the petition, conduct a referendum in which just simple majority of the votes of the registered voters in the legislator's constituency is required to confirm the petition.
In the above scenario, the aggrieved members of the Honourable's constituency could sack him if they followed the above procedure as laid down in the constitution. It should be noted, however, that for for any person to validly exercise his right as a member of the legislator's constituency to remove his representative from office in the scenario, he must be a registered voter of that constituency.It is also instructive to note that the removal of a person from office as a law maker is constitutionally called recall. When removed from office, he is said to have been recalled.Constitutionally speaking, there is no limit to the number of legislators that can be recalled at a time.In other words, if all the constituencies both at the federal and the state levels in Nigeria of today recall all their representatives, the Nigerian Constitution does not forbid it.
Further, the same Constitution of the Federal Republic of Nigeria also has a similar provision on the power to recall federal law makers in section 69.
I am of the humble view that recall is a constitutional power that the Nigerian people have over their legislators but which is yet to be tapped into due to the high level of poverty and ignorance among Nigerians. Indeed, if the electorate make use of this power at its disposal, the president and the governors of the states of the Federation of Nigeria shall be cautioned against the habit of buying the Nigerian legislators in their own selfish interest.
See you again in my next post.
Thank you for your attention.
Some months after he was sworn in as a honourable member of the state parliament, there came a petition before the state parliament by a concerned citizen of the state, who also happened to be a member of his constituency, urging the parliament to probe the reckless management of the state resources by the chief executive of the state and his deputy which had denied the state civil servants the payment of their salaries for eight months thereby plunging the state into a state of economic chaos. In his petition, the petitioner also called for the impeachment of the state chief executive and his deputy for this act of recklessness.
Despite the clamour for justice by the people of the State of the Living, the members of the state Parliament swept this petition for justice in the affairs of the state under the carpet by manipulation.
The honourable referred to above actually played the lead role in sabotaging this petition in connivance with his party members who constituted the majority in the state Parliament and who were in the same party with the state chief executive and his deputy. For this reason, his constituency members were displeased with him and his party who had promised them a fair representation in the state parliament before election.
As the members of this honourable's constituency felt cheated, they all resolved that they no longer wanted to be represented by this undependable legislator and they wanted this to take effect even before the expiration of his tenure. What could they do in the circumstances?
THE LEGAL POSITION
Section 110 of the Constitution of the Federal Republic of Nigeria, as amended, is the law that applies to the above scenario as it relates to the decision of the legislator's constituency members to sack him as their representative. That section of the constitution provides that the registered voters who are members of the constituency of a member of a state House of Assembly, if they want to remove him from office as their representative, shall write a petition to the Independent National Electoral Commission Chairman alleging their loss of confidence in the legislator. The INEC shall, within ninety days of the receipt of the petition, conduct a referendum in which just simple majority of the votes of the registered voters in the legislator's constituency is required to confirm the petition.
In the above scenario, the aggrieved members of the Honourable's constituency could sack him if they followed the above procedure as laid down in the constitution. It should be noted, however, that for for any person to validly exercise his right as a member of the legislator's constituency to remove his representative from office in the scenario, he must be a registered voter of that constituency.It is also instructive to note that the removal of a person from office as a law maker is constitutionally called recall. When removed from office, he is said to have been recalled.Constitutionally speaking, there is no limit to the number of legislators that can be recalled at a time.In other words, if all the constituencies both at the federal and the state levels in Nigeria of today recall all their representatives, the Nigerian Constitution does not forbid it.
Further, the same Constitution of the Federal Republic of Nigeria also has a similar provision on the power to recall federal law makers in section 69.
I am of the humble view that recall is a constitutional power that the Nigerian people have over their legislators but which is yet to be tapped into due to the high level of poverty and ignorance among Nigerians. Indeed, if the electorate make use of this power at its disposal, the president and the governors of the states of the Federation of Nigeria shall be cautioned against the habit of buying the Nigerian legislators in their own selfish interest.
See you again in my next post.
Thank you for your attention.
Tuesday 23 June 2015
NIGERIA POLICE LICENCE TO KILL
Of late in southern Nigeria, the police launched a manhunt following a reported incident of an attempt to rape some young female boarders in their school dormitory by five hefty men before their operation was foiled by the quick response and arrival of the police at the scene.
Upon their arrival at the scene of the incident, the Police Quick Response Squad, a team of ten police men specially trained to combat crime in the region, had earlier sighted the criminals before taking to their heels but the squad identified some of them. The criminals soon disappeared into the neighbourhood thereafter and this necessitated the combing of the whole area by the squad.
Suddenly during the search, which had lasted for about two hours, the police squad came across an abandoned building and a member of the squad noticed a sudden strange movement in the building. He, then, alerted his colleagues and they surrounded the building. They warned whoever was in the house to come out with his two hands in the air.In disobedience to this instruction, two members of the gang of rapists being searched for tried to escape and they were gunned down and died instantly. The three others were subsequently arrested.
Was the killing of the two members of the gang without trial lawful in the scenario?
THE LEGAL POSITION
Section 271 of the Criminal Code, which applies to the southern part of Nigeria, empowers a police officer to use a reasonable force, which may result in the killing of a suspect, to resist an attempt by the suspect to escape if the offence he is to be arrested for is punishable with death or with imprisonment for seven years or more.
Again, section 359 of the same Criminal Code provides for fourteen years' imprisonment for the offence of attempt to rape. It will be recalled that in the above scenario the suspects had not actually committed the substantive offence of rape before their plan was foiled. Thus, all they could have been suspected to have done was an attempt to rape those school girls.
Going by the above provision of section 271, the killing of the two suspects by the police was lawful because the offence they were to be arrested for is punishable with more than seven years' imprisonment and they took to flight when they were about to be arrested thereby giving their killer the legal basis to pull the trigger in the circumstances.
Further, may I reiterate that this is the licence that Nigeria police have to shoot a suspect at sight if he tries to escape arrest.This police licence to kill is one of the exceptions to an individual's inalienable right to life as guaranteed in the Nigerian Constitution as that right itself is declared not to be absolute by the constitution.
So, dear reader, do not risk your life in such encounter with the police.Just surrender yourself for arrest in such situation so that an overzealous police officer will not terminate your life for fun and still be legally justified in doing so even when you have not hurt a fly.Do not run when you are not supposed to run.
See you in my next post.
Have a wonderful day!
Upon their arrival at the scene of the incident, the Police Quick Response Squad, a team of ten police men specially trained to combat crime in the region, had earlier sighted the criminals before taking to their heels but the squad identified some of them. The criminals soon disappeared into the neighbourhood thereafter and this necessitated the combing of the whole area by the squad.
Suddenly during the search, which had lasted for about two hours, the police squad came across an abandoned building and a member of the squad noticed a sudden strange movement in the building. He, then, alerted his colleagues and they surrounded the building. They warned whoever was in the house to come out with his two hands in the air.In disobedience to this instruction, two members of the gang of rapists being searched for tried to escape and they were gunned down and died instantly. The three others were subsequently arrested.
Was the killing of the two members of the gang without trial lawful in the scenario?
THE LEGAL POSITION
Section 271 of the Criminal Code, which applies to the southern part of Nigeria, empowers a police officer to use a reasonable force, which may result in the killing of a suspect, to resist an attempt by the suspect to escape if the offence he is to be arrested for is punishable with death or with imprisonment for seven years or more.
Again, section 359 of the same Criminal Code provides for fourteen years' imprisonment for the offence of attempt to rape. It will be recalled that in the above scenario the suspects had not actually committed the substantive offence of rape before their plan was foiled. Thus, all they could have been suspected to have done was an attempt to rape those school girls.
Going by the above provision of section 271, the killing of the two suspects by the police was lawful because the offence they were to be arrested for is punishable with more than seven years' imprisonment and they took to flight when they were about to be arrested thereby giving their killer the legal basis to pull the trigger in the circumstances.
Further, may I reiterate that this is the licence that Nigeria police have to shoot a suspect at sight if he tries to escape arrest.This police licence to kill is one of the exceptions to an individual's inalienable right to life as guaranteed in the Nigerian Constitution as that right itself is declared not to be absolute by the constitution.
So, dear reader, do not risk your life in such encounter with the police.Just surrender yourself for arrest in such situation so that an overzealous police officer will not terminate your life for fun and still be legally justified in doing so even when you have not hurt a fly.Do not run when you are not supposed to run.
See you in my next post.
Have a wonderful day!
Monday 22 June 2015
CELEBRATION OF MARRIAGE AT UNLICENSED PLACE OF WORSHIP: LEGAL IMPLICATION (2)
This is a follow-up on my post of 19th June, 2015. See that post for a recap. In that post, I left my readers with the question as to whether or not the deserted wife in our scenario could succeed in her application to the court of law for restitution of her conjugal rights to bring her husband back home from the 'grip' of the cash madam.I shall address this subsequently.
THE LEGAL POSITION
The order of restitution of marriage being sought by the deserted wife in the scenario is peculiar to marriages conducted under the Nigerian Marriage Act which shall be subsequently referred to as the Act in this post. Thus, if a marriage is conducted outside the Act, the provisions of the Act and those of the Nigerian Matrimonial Causes Act shall not apply to it. It is relevant, here, to note that the Nigerian Matrimonial Causes Act is another enactment meant to compliment the Marriage Act as it seeks to regulate matrimonial proceedings in court.
Section 6 of the Marriage Act provides that a place of worship shall be licensed for a valid marriage to be conducted there under the Act. In the scenario, the couple celebrated their marriage in a church not licensed for the purpose of conducting marriages under the Act. No spouse of a purported marriage celebrated at an unlicensed place of worship, as in our scenario, can benefit from any of the reliefs provided for in the Act or the Matrimonial Causes Act.
Therefore, in our scenario the deserted wife could not succeed in her application for restitution of her conjugal rights for the above-stated reason. The best that the couple received on their wedding day in that scenario was mere blessings of marriage as the officiating minister lacked the legal capacity to conduct the marriage because his church was not licensed by the appropriate authority( that is,the Federal Ministry of Internal Affairs). Legally speaking, the deserted wife and her purported husband were not married as husband and wife under the Act. In effect, the deserted wife could not have her husband back legally except through other means in the circumstances.
Thank you for reading.
Watch out for my next post!
Friday 19 June 2015
CELEBRATION OF MARRIAGE AT UNLICENSED PLACE OF WORSHIP: LEGAL IMPLICATION
About ten years back, a young couple celebrated their marriage amidst pump and pageantry in an unlicensed local church somewhere in an obscure part of southern Nigeria. After three years of marriage, the couple gave birth to a bouncing baby boy but not without the manifestation of some strange attitude from the husband towards the wife. This dramatic twist in their marriage got to its climax one day when the husband left the matrimonial home without telling his wife his destination as they were no longer on speaking terms and he never returned home.
When the wife had been living as a single mother and had been responsible for the upkeep of the baby for four good years since the departure of the husband, a friend dropped a hint about the whereabouts of her husband who had been sited somewhere in a neighbouring state. Subsequently, she arranged a secret visit to the place where her husband was said to be.
One hot Saturday afternoon, she travelled to the place where her husband was said to have been living since he departed their matrimonial home. On getting there and upon enquiry, she was directed to one magnificent mansion standing alone at the bottom of a hill in an ambience that would leave in the mind of its visitor the impression that the location of the edifice was that of a holiday resort. She was kept waiting for hours at the gate as she was told that 'the chief' and the madam were busy inside holding a meeting with some foreign investors. After about four hours of waiting endlessly, her patience got exhausted and she lost her temper and drama soon ensued between her and the security men at the gate as she wanted to force herself into the compound of the house.
The commotion outside soon drew the attention of 'the chief' and the madam from within. They ordered the security men to let the woman in. To his utter surprise, it dawned on 'the chief' that the woman was his wife he had abandoned for the past four years. As 'the chief' was dumbfounded in the presence of the madam, the wealthy woman he had been co-habiting with, the wife just left the scene calmly and decided to return home when she sited her husband with the strange woman.
When she returned home, the deserted wife decided to file an action in court seeking an order of restitution of conjugal rights between her and her husband who had abandoned her and their baby for four years. If she succeeded in this application in court, her husband must be out of the custody of the ' cash madam' and return to their matrimonial home so that the deserted wife could have her matrimonial rights including her right to matrimonial intimacy restored.
Could the deserted wife's application for this order of the court succeed in the circumstances?
For my legal perspective on this scenario, visit this blog on Monday, 22nd June, 2015.
Till then, stay blessed.
Thank you.
When the wife had been living as a single mother and had been responsible for the upkeep of the baby for four good years since the departure of the husband, a friend dropped a hint about the whereabouts of her husband who had been sited somewhere in a neighbouring state. Subsequently, she arranged a secret visit to the place where her husband was said to be.
One hot Saturday afternoon, she travelled to the place where her husband was said to have been living since he departed their matrimonial home. On getting there and upon enquiry, she was directed to one magnificent mansion standing alone at the bottom of a hill in an ambience that would leave in the mind of its visitor the impression that the location of the edifice was that of a holiday resort. She was kept waiting for hours at the gate as she was told that 'the chief' and the madam were busy inside holding a meeting with some foreign investors. After about four hours of waiting endlessly, her patience got exhausted and she lost her temper and drama soon ensued between her and the security men at the gate as she wanted to force herself into the compound of the house.
The commotion outside soon drew the attention of 'the chief' and the madam from within. They ordered the security men to let the woman in. To his utter surprise, it dawned on 'the chief' that the woman was his wife he had abandoned for the past four years. As 'the chief' was dumbfounded in the presence of the madam, the wealthy woman he had been co-habiting with, the wife just left the scene calmly and decided to return home when she sited her husband with the strange woman.
When she returned home, the deserted wife decided to file an action in court seeking an order of restitution of conjugal rights between her and her husband who had abandoned her and their baby for four years. If she succeeded in this application in court, her husband must be out of the custody of the ' cash madam' and return to their matrimonial home so that the deserted wife could have her matrimonial rights including her right to matrimonial intimacy restored.
Could the deserted wife's application for this order of the court succeed in the circumstances?
For my legal perspective on this scenario, visit this blog on Monday, 22nd June, 2015.
Till then, stay blessed.
Thank you.
Thursday 18 June 2015
LEGAL RISK OF 'VISA MARRIAGE' IN NIGERIA (2)
This is a follow-up on my last post ( that is, the post of 16th June, 2015). Visit www.mylegalgists.blogspot.com to read that post for a recap.In that post, I raised an issue as to the practicability of the trial of Mr. Lokata for his offence in Nigeria since he was not even in Nigeria as at the time Drase Yupun threatened to jail him. Could he still be brought back to Nigeria to face his trial in the circumstances?
THE LEGAL PERSPECTIVE
It is relevant to first note that although the offence of Mr. Lokata in that scenario is an offence arising from matrimonial affairs, such offence is criminal in nature at least from the perspective of the penalty it attracts( that is, five years' jail term).It is also instructive to note that the issue of how Mr. Lokata would be brought to Nigeria and be tried in the scenario is a case of extradition. Now, what is extradition? Simply put, extradition is a request to a country by another country for the return of a fugitive, who has escaped into the territory of the former after committing an offence in the territory of the latter, to the latter for trial.
In the instant case, two key factors would determine whether or not it would be possible to return Mr. Lokata to Nigeria to face trial for deliberately contracting a void marriage with a woman without her knowledge. Firstly, it would be important to determine whether or not there was an extradition treaty between Nigeria and the United States at that material time.Secondly, even if there was such treaty between the two countries at that time, was the offence committed by the fugitive, Mr. Lokata, listed as one of the offences under the treaty?
The extradition treaty between the United States and Nigeria was signed by the British Colonial master on 24th June, 1935 and it entered into force on the same date.After independence, Nigeria adopted this treaty. So, it is still in force till today.It should be noted that once there is no extradition treaty between two countries it is very difficult, if not impossible, for extradition of suspects to take place between the countries.
The extradition treaty between Nigeria and United States, unfortunately, does not list matrimonial offences as part of the offences under it. Thus, it would be practically impossible for the Nigerian government to try Mr. Lokata for the offence he had committed in the scenario if he refused to come back to Nigeria.
Interestingly, however, since the marriage between Mr. Lokata and Drase Yupun was void ab initio, Yupun could just get a court declaration in Nigeria on the invalidity of the marriage, a certified true copy of which can be used to strip Mr. Lokata of his status as her husband in the United States to expose him to outright deportation to Nigeria. At that stage, his status as the spouse of the main immigrant, Drase Yupun, would have ceased with all the privileges attached to it including his status as a legal immigrant in the United States.
Thank you for reading.
THE LEGAL PERSPECTIVE
It is relevant to first note that although the offence of Mr. Lokata in that scenario is an offence arising from matrimonial affairs, such offence is criminal in nature at least from the perspective of the penalty it attracts( that is, five years' jail term).It is also instructive to note that the issue of how Mr. Lokata would be brought to Nigeria and be tried in the scenario is a case of extradition. Now, what is extradition? Simply put, extradition is a request to a country by another country for the return of a fugitive, who has escaped into the territory of the former after committing an offence in the territory of the latter, to the latter for trial.
In the instant case, two key factors would determine whether or not it would be possible to return Mr. Lokata to Nigeria to face trial for deliberately contracting a void marriage with a woman without her knowledge. Firstly, it would be important to determine whether or not there was an extradition treaty between Nigeria and the United States at that material time.Secondly, even if there was such treaty between the two countries at that time, was the offence committed by the fugitive, Mr. Lokata, listed as one of the offences under the treaty?
The extradition treaty between the United States and Nigeria was signed by the British Colonial master on 24th June, 1935 and it entered into force on the same date.After independence, Nigeria adopted this treaty. So, it is still in force till today.It should be noted that once there is no extradition treaty between two countries it is very difficult, if not impossible, for extradition of suspects to take place between the countries.
The extradition treaty between Nigeria and United States, unfortunately, does not list matrimonial offences as part of the offences under it. Thus, it would be practically impossible for the Nigerian government to try Mr. Lokata for the offence he had committed in the scenario if he refused to come back to Nigeria.
Interestingly, however, since the marriage between Mr. Lokata and Drase Yupun was void ab initio, Yupun could just get a court declaration in Nigeria on the invalidity of the marriage, a certified true copy of which can be used to strip Mr. Lokata of his status as her husband in the United States to expose him to outright deportation to Nigeria. At that stage, his status as the spouse of the main immigrant, Drase Yupun, would have ceased with all the privileges attached to it including his status as a legal immigrant in the United States.
Thank you for reading.
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