2005

Sovereign immunity is an English doctrine of great antiquity. It has its root in the old feudal structure of England1. Under the feudal system, no lord could be sued in the court which he held to try the cases of his tenants. Similarly, the king of England at the apex of the feudal pyramid was not subject to the jurisdiction of any court in the realm2. The basis of this concept is clear. It is simply not that the king could not do any wrong but that no action could be brought against him without his consent. The importation of the law of crown proceedings in Nigeria was made necessary by the fact that as a British colony and protectorate, Nigeria shared with British and her dependencies the common headship of the crown. And in colonial Nigeria as in Britain, all government functions particularly the executive and judicial functions were carried out in the name of the crown because, as in Britain, the crown came to represent the sum total of governmental powers and was synonymous with the executive3. Being indivisible as it was then thought to be, the crown though present in every part of its domain was the same everywhere, enjoying the same rights, privileges and immunities. Hence, the English law which defined these rights, privileges and immunities had to be copied by British dependencies, including Nigeria. That is why these rights, privileges and immunities have been incorporated into our constitutions right from the independence till date. The only difference is that unlike in Britain where it originated, this immunity has been abused by those enjoying it in this country. It is in view of this that I consider it imperative in this paper to discuss the extent to which this immunity applies in this country and the areas we are wanting in adopting it.

One of the most perplexing problems confronting statutory1 bodies in the country today is the challenge posed by the determination of employment of an erring servant.2 Servants of statutory bodies have their respective employments protected by various statutes. An employment is protected by statute, when the servant is an employee of a statutory body as well as the existence of inherent provisions in the statute regulating the procedure for the servant’s dismissal and/or retirement. Our main objective is to highlight the criteria that the courts have employed in determining whether or not an employment has statutory flavour as well as the latitude and limit to the exercise by statutory bodies of powers in disciplining an erring servant. The article attempts to record, analyze and criticize the premises, which statutory bodies have employed in determining the employment of erring servant. This article is based on a fundamental premise that the principle of natural justice has a pervading as well as universal application and that the acceptance of this premise is a desideratum to what follows. I concede to the fact that this premise is not infallible, but could be a source of welcome dialectical disputation. The first part of this article records the principles, which the courts have articulated in the determination of employment with statutory flavour. The second part analyses the limit of statutory bodies’ power in determining the employment of erring servant in its employ. A synthesis of the first and second part of this article would reveal the challenge to the power of statutory bodies and courts in relation to an erring servant.

In Nigeria today the Laws of the Federation is regarded as the source from which all laws emanate. Interestingly however, the Carriage by Air (Colonies, Protectorates Trust Territories ) Order1, which encompasses the Warsaw convention of 1929, has been omitted from the current edition of the Laws of the Federation, brings into focus the need to examine the consequences thereto as this is the main law governing international carriage by air in Nigeria, and so this paper will examine its current status taking into consideration its omission from the Laws of the Federation 1990 and 2004 editions and the effect if any this has on the law as it relates to international carriage by air. Carriage by air has come a long way, dating back to 1783. It was in that year that an aircraft, a hot-air balloon first left the ground2. Balloons were the first aircraft to be used for aerial transport, including the carriage of mails, and for military purposes such as reconnaissance and bombing, however balloons have continued to be in use for meteorological purposes. The era of modern aviation began on 17th December, 1903 when the first authenticated flight by man in a power driven heavier than-air machine was achieved by the Wright Brothers at Kitty Hawk, North Carolina, United States of America and since then man has moved ahead even to outer space. It is important to note that the advent of the Air Age also brought along its own legal problems and as air travel became complex the need for regulating the activities associated with air travel became obvious. It is on record that the first air law was promulgated in 1784 in Paris, France3. It was also in Paris, France in 1889 that the first international conference on air law was held under the auspices of the government of France. In the same year the first reported case of damage caused by aviation was litigated in the United Kingdom and by 1906 airplanes were flown in Europe. Initially the use of the airplane was limited for a number of reasons, first, that a lot of expense went into manufacturing an airplane which was then still being regarded by many as an experiment and considering the effort required it could only be handled by governments. Second, there was the unavailability of skilled personnel to man these airplanes and it took sometime to be trained in the operation and maintenance of these airplanes. Third, at this point in time the airplanes available were the small ones which could not carry many persons and could only fly short distances and this restricted the use to which they were put. Finally, as the use of the airplane was novel, people were afraid and not enthusiastic about it. Nevertheless, the airplane was being used for transportation of goods, mails and passengers in addition to military purposes4 and with the rapid industrialization that took place in the early decades of the 20th century, the importance of the airplane soared most especially as its early defects had been rectified and it was now seen as a reliable if not the most reliable means of transport.

Law and the judiciary or the legal system is an effective means of protecting legal rights and also for guarding against political, economic and social injustice.1 However, an individual may be hampered from seeking redress in court by various factors, such as structural,2 legal,3 or administrative impediments.4 But the commonest problem, however, is lack of funds to prosecute a legal claim, or make a defense. Justice, human rights and redress are fanciful talks to a poor population that is struggling for daily bread. This is where a free public legal aid scheme run by government is a social necessity to afford opportunity to indigent persons to get justice, for without justice, there can be no peace in society and society needs peace to develop. The need for access to justice for everyone cannot be over emphasized. The International Commission of Jurists at its New Delhi Conference in 1959 put it thus:

Equal access to law for the rich and the poor alike is essential to the maintenance of the Rule of Law. It is therefore essential to provide adequate legal advise and representation to all those threatened as to their life, liberty, property or reputation who are not able to pay for it

Without legal representation a party cannot properly present his case. In the words of Lord Denning MR: 

The truth is best discovered by powerful statements on both sides.

Circumstantial evidence has been defined as a number of circumstances, which are accepted so as to make a complete unbroken chain of evidence1. It is also defined as the evidence of surrounding circumstances and facts from which an inference of the existence or otherwise of a fact in issue can be made2. It could also be construed as evidence offered to the court for the purpose of the court inferring therefrom the existence of a fact in issue3. These definitions summarize the academic theories or problems of the meaning of circumstantial evidence. The first definition represents the ‘chain’ theory of circumstantial evidence. Proponents of this theory view it as a round chain, each piece of which is represented by a piece of evidentiary fact adduced before the court4. The second and third definitions emphasize the so-called ‘inference’ or ‘rope’ theory. This postulates that circumstantial evidence is like a rope with several cords one of which may not be able to lift the weight of proof but which if joined together with others can then lift and carry the burden of proof and establish the fact(s) in issue. Thus, according to Pollock C.B. in R. v. Exall5 “circumstantial evidence is more like the case of a rope composed of several cords. One strand of the cord might be sufficient to sustain the weight but three stranded together may be quite of sufficient strength”6 This paper does not dwell upon these disputations. Rather, it examines the judicial law adjudication in Nigeria with special reference to the Supreme Court as constituted since the past decade. It would be shown that by and large the Supreme Court has consistently adopted a broad-minded approach in applying circumstantial evidence in criminal causes, which have come before it. This it has done without prejudice to the general proposition that each case must be examined strictly on its own merit. In examining the contemporary effort of the Supreme Court of Nigeria it is apposite to begin with an account, however brief, of the days past. This would help to shed light on the lofty works, which is on-going in our apex court.

This essay examines the customary court of Appeal in Edo State, with emphasis on the contending issues arising as to the precise scope of its jurisdiction. The issue of its jurisdiction has become even more topical now, in view of the increasing importance of the Area customary Courts, over which the Customary Court of Appeal is supposed to play a supervisory role in the legal system. The Area customary Courts are now saddled with a bloated workload arising from its enhanced civil and criminal jurisdiction. Since Appeals ordinarily are supposed to move from these area Customary Courts to the Customary Court of Appeal, it is easy to assume that the latter’s jurisdiction will be determined by the scope of the jurisdiction of the former. Yet this has not been proven to be so in recent times. Palpably, one of the reasons that could be advanced for this is that the customary court of appeal is expected to share its appellate jurisdiction with the relevant State High Courts. In fact, it has often being assumed that the customary courts of Appeal and the State High Court are of co-ordinate jurisdiction. Yet it is equally, possible that it is the desire to guide whatever is left of its “limited” jurisdiction that the customary court are often reluctant to allow appeals from its decision to the “regular” court of Appeal. With this kind of scenario it is clear that problems of jurisdictional conflict may be difficult to resolve even in the face of recent contributions by all stakeholders towards an explanation of the true position. It is proposed in this essay to examine the statutory and constitutional provisions regarding the establishment of the customary court of appeal, with specific emphasis on the rationale for its establishment, its status vis-à-vis the high Court and the Court of Appeal with a view to unraveling its “expected and desirable” jurisdiction.

The legal position on the role and duties of auditors in corporate administration under the Nigerian Company Law appears to be on all fours with that of English Law contained in the United Kingdom companies Act 1989. It has been established that:

The duty of the auditor…is not to confine himself merely to the task of verifying the arithmetical accuracy of the balance sheet but to inquire into its substantial accuracy and to ascertain that it was properly drawn up so as to contain a true and correct representation of the state of the company’s affairs1.

Under Section 357 (1) of the Companies and Allied Matters Act 19902, every company is required to appoint an auditor or auditors at each annual general meeting to audit the financial statements of the company. Such Auditor is meant to hold office from the conclusion of that meeting to the conclusion of the next annual general meeting. This paper examines the position of auditors, their appointment, removal/resignation, their role, duties and responsibilities within the framework of corporate administration in Nigeria. We shall appraise the concept of Company’s Audit and its relevance in Nigerian corporate administration and attempt a comparative analysis on the standard of care and diligence required of an auditor vis–a–vis his liability to the company and third parties.

…Day after day, month after month, year after year, we hear of and read about customs which discriminate against womenfolk in this country… they are regarded as inferior to men. Why should it be so? All human beings-male and female are born into a free world and are expected to participate freely without any inhibition on ground of sex and this is constitutional. Any form of societal discrimination apart from being unconstitutional, is antithesis to a society built on the tenets of democracy which we have freely chosen as a people…1

This opinion expressed by Justice Niki Tobi, gives an insight into the problems that the girl child has had to contend with, within the society she has found herself. The concept of human rights is relatively new as it can be traced back to 1945 with the founding of the United Nations.2 Before then what was common were natural rights. The notion of the rights of man found expression in the writings of Montesquieu and John Locke. The failure to secure these reserved rights gave rise to series of internal revolts and revolutions which culminated in the enactment of the Magna Carta (1215) and the Bill of Rights (1688) in England. This same revolution was also experienced in the United States of America and France resulting in the American Declaration of Independence (1776) and the French Declaration of the Rights of Man and Citizen (1789). Although they did not enjoy universal support, they eventually resulted in the Universal Declaration of Human Rights, where paragraph one of the preamble defines the nature of human rights thus:

… recognition of the inherent dignity and of the equal and inalienable rights of members of the human family is the foundation of freedom, justice and peace in the world

In view of the significant nature of this paragraph, it has been reproduced in the preamble to the other human rights instruments namely, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In Nigeria, the Supreme Court in Ransome Kuti v. Attorney General of the Federation3 also defined the doctrine of human rights, where Kayode Eso, J.S.C. observed that:

it is a right which stands above the ordinary laws of the land and which infact is antecedent to political society itself. It is a primary condition to a civilized existence... and what has been done by our constitutions since independence… is to have these rights enshrined in the constitution so that the rights could be immutable to the extent of non immutability of the constitution itself4

Flowing from the fore-mentioned is the fact that all human beings everywhere in the world regardless of gender, race, culture or religion equally possess human rights. It is against this backdrop therefore, that one will examine the position of the girl-child in Nigeria, considering the peculiar problems she faces and how the law-that is local, regional and international-have assisted in placing her on the same pedestal with her male counterpart. In order to achieve this, it is necessary to examine how the quest for gender equality began.

The political and constitutional development of Nigeria has been intertwined with the quest for the promotion and protection of human rights in the country. From the pre-independence constitutional conferences1, through the First and Second Republics2 and the various military dispensations to the present democratic government3, human rights questions have received merited attention in legal and political discourse. There has been a sustained struggle for the protection of the human rights of individuals, groups and communities in Nigeria. The Willinck Commission4, and the Oputa Panel5 are eloquent testimonies of this concerted effort to promote and protect human rights and justice in the country. While the purpose of the former was to assuage the feeling of marginalization by the minority groups in the country during the colonial era, the Oputa Panel examined instances of human rights abuses from 1st January, 1984 to 28th May, 1999.6 Although the report of the Oputa Panel was eventually not made public7 much less implemented, the point remains that its constitution in the first place, was indicative of the concern by the government to correct the mistakes of the past in respect of human rights abuses. While these formalistic approaches can easily be mentioned, the same cannot be said of the actual implementation of mechanisms designed to facilitate the realization of basic human rights. This is because there is a wide gulf between official pronouncements of respect for human rights and the actual implementation of same. The explanation for this appears to be that there still exists, a number of substantive and procedural obstacles or impediments that not only inhibit the actual implementation of such measures, but preclude the generality of the masses from having access to justice in Nigeria. The question then is, what are these impediments and how can they be surmounted to guarantee access to justice by the large majority of Nigerians?. Are there any in-built legal mechanisms that can be deployed to ensure the attainment of access to justice in the country?. What has been the response of successive governments to the quest for the enforcement of basic human rights through increased access to justice? This paper intends to examine these questions and attempt to chart a new course in the quest for the promotion and protection of human rights in Nigeria through enhanced access to justice. We will first discuss the concept of access to justice and its relationship with human rights before proceeding to examine the various substantive and procedural obstacles militating against effective access to justice. The concluding part of the paper will deal with how the legal system can be made more responsive to the yearnings and aspirations of Nigerians by guaranteeing individuals and groups access to justice in the country, and consequently enhance human rights protection.

Where a public authority transfers wealth or benefit to a defendant in circumstances where it lacks capacity to transfer the wealth or benefit, the lack of capacity itself operates as a factual reason for restitution from the defendant. If that rule finds expression in the statement, ‘no abuse of public fund,’ then the corollary must be that there can be ‘no taxation without law.’ Reciprocity of the ‘no abuse of public fund,’ requires that the law also demands that where a plaintiff have transferred benefit to a public authority in circumstances where the authority has no capacity to accept the benefit, then it must make restitution of the benefit to the plaintiff. Our discussion would center on the principles and grounds of restitution from a public authorities to persons who transfer benefit to it in circumstances where the public authorities are not lawful justified to demand and or receive the benefit.