Man, 23, charged with attempted rape of lunatic

A 23-year-old factory worker, Tope Akanji, who allegedly attempted to rape a lunatic in the wee hours, was on Friday brought before an Ikeja Magistrates’ Court.

The accused, whose address is unknown, is standing trial on a charge of attempted rape.

The prosecutor, Insp. Edet Okoi, told the court that the accused committed the offence at about 1.00 a.m. on April 3 at Sobiotimo Street, Dopemu in Agege area of Lagos.

Okoi said the accused was caught by local vigilance group while attempting to rape a mad woman.

“In his statement at the station, Akanji claimed that he suddenly felt a sexual urge and noticed the woman on the street.

“He said he did not realise that she was a lunatic.”

He said the offence contravened Section 404 of the Criminal Law of Lagos State, 2011.

The accused, however, pleaded not guilty to the charge.

The Magistrate, Mrs Abimbola Oshodi-Makanju, granted the accused bail in the sum of N100, 000 with one surety in like sum.

The News Agency of Nigeria reports that Section 404 prescribes seven years imprisonment for offenders.

The case was adjourned to May 5 for mention.

Catalogue of errors in Rivers judiciary crisis

A pall of darkness has suddenly descended on the judiciary in Nigeria. Its genesis is the brouhaha surrounding the appointment of a substantive Chief Judge for Rivers State. The institutions and persons charged by the Constitution with roles to play in the appointment of a Chief Judge are at daggers drawn. The National Judicial Council is certainly facing the first major challenge to its legitimacy as the Rivers State Government insists that the appointment of Mr Justice Peter Agumagu as the Chief Judge of the state after confirmation by the state House of Assembly without any input from the NJC is valid. The NJC has reacted by suspending Justice Peter Agumagu and making it clear that it would not recognise him as the Chief Judge of  the state. He has been further directed to respond to a query which seeks to punish him for violating his judicial oath. The learned Justice has approached a Federal High Court challenging NJC’s decision to suspend him and praying the court to restrain members of an investigation panel set up to investigate the allegations against him from taking any further steps in respect of his case until the determination of the suit he filed.   It has become necessary to examine the relevant sections of the Constitution objectively in order to chart a way out of the seeming boundless confusion that may consume the judiciary.

Brief relevant facts

The crisis began with the appointment of Justice Agumagu as the Acting Chief Judge of Rivers State. One Boma Goodhead and three others acting on behalf of Kengena Unity Forum challenged the appointment at the Federal High Court presided over by Justice Lambo Akanbi. The learned trial judge held that Justice Agumagu was not qualified to be appointed as the Acting Chief Judge of Rivers State not being a state High Court Judge at the time of the appointment as required by section 271(4) of the Constitution of the Federal Republic of Nigeria, 1999. Subsequently, the Governor of Rivers State, Mr. Rotimi Amaechi, and others filed another suit before the same court and judge. The second suit would seem to question the power of the NJC to force a recommendation on the state government. The trial judge was reported to have held as follows:

 “With greatest respect to the National Judicial Council, who is my employer, I cannot allow the argument of the defence counsel, that the governor must accept the recommendation of the NJC.

“The body that is most suitable to make recommendation of a nominee of a Chief Judge of the state is the state Judicial Service Commission, because they have local knowledge of the most suitable candidate, than the National Judicial Council.

“What the Constitution recommends is 10 years of legal practice and we are in a dynamic world. And so, the issue of most senior judge can no longer be the only criteria of appointing someone to such an important and exalted position.”

 It was apparently based on the second decision that the governor of Rivers State sent the name of Justice Agumagu to the Rivers State House of Assembly for confirmation. After confirmation, the governor then made the appointment. It may also be pointed out that the person that the NJC recommended to the Rivers State Government for appointment is Justice Daisy Okocha who is incontestably the most senior High Court judge in Rivers State at the moment.

 The errors

While the first decision of the learned Justice Akanbi cannot be faulted as it was soundly based on the provision of section 271(4) of the Constitution, his second decision cannot wholly be defended. The trial judge is right to have held that the government of Rivers State needed not to accept the recommendation of the NJC. He is, however, in my view wrong to have suggested that the recommendation of the NJC as to who can be appointed as the Chief Judge of a state can set aside in favour of the recommendation of the state Judicial Service Commission. The law does not support his conclusion. We shall justify our position by referring to the relevant provisions of the Constitution on appointment of a substantive Chief Judge of a State are Section 271(1) of the Constitution, item 21(c) of Part I to the Third Schedule of the Constitution and item 6(a) of Part II to the Third Schedule of the Constitution. The said provisions respectively go thus:

271(1) states, “The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State.”

21(c) states, “The National Judicial Council shall have power to recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission persons for appointment to the offices of the Chief Judges of the States…”

6(a)(i) states, “The commission (state Judicial Service Commission) shall have power to advise the National Judicial Council on suitable persons for nomination to the office of the Chief Judge of the State”

It is clear from a community reading of these provisions that the state Judicial Service Commission has no power to make recommendation of a nominee for the office of the Chief Judge of a state. Section 271(1) and item 21(c) of the Third Schedule is clear and unambiguous that it is the NJC that has the power to recommend a person for appointment. The function of the  state Judicial Service Commission with respect to the appointment of a Chief Judge begins and ends with advising the NJC. The NJC may choose to accept or reject the advice. The trial judge was engaging in law-making when he said that “The body that is most suitable to make recommendation of a nominee of a chief judge of the state is the state Judicial Service Commission, because they have local knowledge of the most suitable candidate, than the National Judicial Council’.  There was no warrant for that decision.

It is also clear from the wording of section 271(1) of the Constitution that it is the Governor of a state that ultimately appoints a Chief Judge. However, his or her power to appoint a Chief Judge is not at large. The appointment must be predicated on the occurrence of other events, namely: (a) recommendation of the NJC and (b) confirmation of the appointment by the House of Assembly. The law in Nigeria is clear that when a procedure has been stipulated in a statute for doing a thing, failure to comply with the procedure is a nullity.  See the case of Abubakar v Nasamu (No. 2) (2012) 17 NWLR 523 at 577 where the Supreme Court emphatically held as follows:

“Where a statute has prescribed the mode of performing an act, only that mode of performing the act competently is contemplated otherwise the act will be a nullity.”

Consequently, the governor of Rivers State cannot validly, in my view, appoint a Chief Judge for the State without the recommendation of the NJC. This conclusion is fortified by the provision of item 6(a)(i) of Part II to the Third Schedule which confers an advisory role on the state Judicial Service Commission. Of course these provisions are capable of creating crisis situations such as we now face. But until the lawmakers amend them, no one has the right or power to jettison them. The wisdom of the lawmakers may be that they do not consider it desirable that one single authority should be responsible for the appointment of the Chief Judge of a state, hence the need to involve the House of Assembly, the NJC, the governor and even the state Judicial Service Commission in an advisory capacity. If this wisdom is unassailable, and there is a lot that commends it, in our riotous and lawless system, then the parties must bend over backwards to agree on the nomination of a candidate. The state Judicial Service Commission and the governor may have to keep sending different names to the NJC until that body agrees to recommend a candidate.  In other words, the governor of Rivers State erred in appointing a Chief Judge that was not recommended by the NJC.

 There is yet another error which is more frightening than the one committed by the Rivers State Governor. The NJC, an eminent body of learned Justices and legal practitioners, which is a party in the case leading to the erroneous decision of the learned trial judge rather than appealing against the decision which seems to make light of its constitutional power to recommend a candidate for appointment as Chief Judge of a state wielded the big stick by suspending the appointed Chief Judge and issuing him with a query to explain why he should not be disciplined.  Words cannot be sufficient to criticise the decision of the NJC. Indeed, I can think of no graver abuse of power and trivialisation of the rule of law than what the NJC has done. Its decision is unacceptable and is an affront on decent administration of justice. Unless it quickly withdraws its decisions Nigerians would be right to conclude that the NJC is after all not different from the typical politician in its lack of respect for due process and display of feudalistic traits. One gets the frightening feeling that the NJC does not recognise that it is a mere executive body created under section 153 of the Constitution and as such has a duty under section 287(3) of the Constitution not only to obey the decision of Justice Akanbi, but to enforce that decision until set aside. To seek to undermine that decision is to say the least unbecoming of the eminence of that body.

One hopes that the NJC is not relying on the often quoted and often misapplied obiter of Lord Denning in Mcfoy v UAC (1961) 3 All ER 1169 at 1172 to conclude that it can simply disregard the decision of Justice Akanbi. Lord Denning had declared in that case thus:

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without more ado, though it is sometimes more convenient to have the court declare it to be so.”

In the first place, it is our submission that in the present circumstance it is convenient, reasonable and expected that the NJC will proceed to an appellate court to set aside the decision of Justice Akanbi, If a body charged with supervising the judiciary can pick and choose which decision of court is a nullity without an order of court to that effect, then we are in for a reign of anarchy in administration of justice as every person will take a cue from it. The onus is on the NJC to show how it will be inconvenient for it to appeal a decision in which it was a party.

Second, Prof. Itse Sagay, SAN has in his recent book, ‘The Enforcement of Electoral Laws and Case Law of 2007 Election Petition Judgments’ inimitably called attention to the erroneous citation and misuse of the obiter of Lord Denning in the aforementioned case.

Aturu, a human rights lawyer, wrote in  from Lagos

Law on Sexual Violence against Women on the Way

The Chairman, Senate Committee on Women Affairs and Youths Matters, Senator Helen Esuene, Sunday said that bill on sexual violence and harassment against women would soon be passed by the Senate.

Esuene, representing Akwa Ibom South senatorial district, stated this at the inauguration of the National Executive  Council of Ibom Consolidated Assembly (ICA), in Uyo, Akwa Ibom State.

She said the bill is seeking to address the issue of rape and make it easier for the victims to come out to report.

“There is a bill currently in the Senate on sexual violence against women. It is supposed to address the issue of rape, to make it easier for victims to come out to report,’’ Esuene said.
She said the bill, when passed, would create provision for victims of rape to seek justice and the perpetrators to be properly punished.

Esuene described rape against women and girls as “really unfortunate and very sad.”
“The issue of rape on women is very unfortunate because it is one crime that shouldn’t be since there are more women than men, why should a man rape a woman or a girl that he shouldn’t even go near.

“The laws are there but for the inhibition people have. Rape victims are already traumatised and often times scared to even go to report at the police stations,’’ she said.
Esuene regretted that the already existing laws had also made it very difficult for a rape victim to report and seek justice.

“The laws as we have them now is not enabling at all because it makes it very difficult for the rape victim to go and report, because the victim will be asked all manner of questions and because of that, they don’t even want to bother.

“If we don’t report and make the victim to pay according to law, then the crime will continue and increase,’’ she stated.

Esuene said that bills in the national assembly were not delayed, saying that bills involved gradual processes.

“The process of law making is very gradual and is not one stuff thing. One bill has to go through three readings in one house, then it is taken to the other house and it will have to go through three readings.

“And then you must have a public hearing on it before the two houses (the representatives and the Senate) will now have a consensus bill which will again be passed by each of them before it will be assumed to be passed.

“It is a very long drawn out process; unfortunately that is why we have bicameral legislature, if it was just one house then the process will be shortened,’’ she said.
Esuene said that democracy had come to stay in Nigeria as the country would soon celebrates 15 years of uninterrupted democracy.

The lawmaker said that the National Assembly was a symbol of democratic governance, and urged Nigerians not to lose faith in the system.
“Democracy is a partnership with the people, that is why it will continue to excel and grow in Nigeria.

''Whatever you see now that may not be to our delight is because the democracy is till new and fresh.
“Nigeria is celebrating its centenary of 100 years as a nation, it is time that we start doing thing slightly differently, we cannot continue to be a baby at 100 years,’’ Esuene said.

Revealed: Ex-NBA President Plots to Make Sister Rivers CJ

Attempts by a member of the National Judicial Council (NJC) and former President of the Nigerian Bar Association (NBA), Chief O.C.J. Okocha (SAN), to ensure the emergence of his elder sister, Justice Daisy W. Okocha, as the next Chief Judge of Rivers State, are driving the succession crisis in the state judiciary, THISDAY gathered Sunday.

It was learnt that Okocha has embarked on a campaign to mobilise the support of elders of Ikwerre ethnic nationality for his sister as part of his strategy to facilitate her succession to Justice Iche Ndu, who retired on August 19, 2013.

The bid is instructive in the light of the fact that the chief actors in the succession crisis such as Justice Okocha, the state Governor, Mr. Chibuike Amaechi; the state Attorney-General and Commissioner for Justice, Mr. Worgu Boms and former President, Customary Court of Appeal, Justice Peter Agumagu, who the state government recently swore in as Justice Ndu’s successor, are from the Ikwerre clan.

The state judiciary has been thrown into a crisis, which has pitted the state government against the NJC since the retirement of Justice Ndu.

Whereas the NJC, which sources said was being influenced by Okocha, insisted on the ratification of its recommendation of Justice Okocha as the next chief judge, the state government demurred.

Rather, it has thrown its weight behind Justice Agumagu, whose controversial process of emerging the state chief judge has drawn the ire of the NJC which has not only suspended him, but set up a panel to probe his alleged complicity in the saga.

It was gathered that Okocha, as a member of NJC, influenced the NJC to recommend Justice Okocha, to Amaechi for appointment as the state chief judge contrary to the recommendation of Justice Agumagu by the Rivers State Judicial Service Commission to the NJC.

The commission had clearly recommended Justice Agumagu to the NJC as its first and most qualified choice to succeed Justice Ndu.

It was learnt that Okocha had been trying to manipulate the NJC to insist on his sister’s choice with the assistance of a top official of the council who is his close friend and  was his course mate.

According to sources, the unholy alliance between the duo  made  the NJC to reject Justice Agumagu’s nomination as chief judge on the grounds that he is not the most senior judge in the state high court and could not cross over from the Customary Court of Appeal to become the chief judge of the state.

According to one of the sources,  these twin qualification criteria of most senior judge and non-crossing over are creations, not of the 1999 Constitution that prescribes only 10 years’ post call to the bar as qualification to the office of the chief judge, but of the NJC.

It was learnt that NJC’s insistence on seniority and that  a judge of the Customary Court of Appeal cannot cross over to the state high court was done to pave the way for the emergence of Justice Okocha as the chief judge.

As part of his plot to instal his sister as the next chief judge of Rivers State, Okocha had written a letter, dated February 3, 2014,  to the President-General of Ogbakor Ikwerre Convention (the umbrella body of the Ikwerre ethnic group), Prof. Augustine Onyozu, seeking his intervention on behalf of Justice Okocha.
In the letter, Okocha entreated Onyozu to urge Amaechi to make Justice Okocha the chief judge principally because she is from the Ikwerre ethnic stock like the governor.

  “May I therefore suggest that the Ogbakor Ikwerre Convention, perhaps through a high-powered panel/committee of Ochi-onhas, intervenes in the matter and advises Governor Amaechi to…ensure that Justice Daisy Okocha is duly appointed, duly confirmed and sworn in as the chief judge of Rivers State; as any failure in that regard will definitely reverse the several gains made by the Ikwerre ethnic nationality in the scheme of things in Rivers State,” he had said in the letter. 

Boms had once alluded to the partisanship of Okocha in the succession crisis in the state judiciary when he said: “We urge the NJC to disallow the personal sentiments and entrenched interests of some of its members in the Rivers chief judge matter, and treat the Rivers State judiciary and its judges as it treats other states’ and federal judiciaries and their judges and as provided for under the constitution, as the issue is not a family affair or succession to a family stool in which case members of a particular lineage are the only persons qualified for consideration for succession.

This is public office with constitutionally provided statements on qualification for succession and provides no room for any one or persons to use their membership of the exalted body to lend a hand to a relation or a friend outside the clear provisions of the constitution as now confirmed by the court.”

Akure Court : Man, 37, in the dock for peddling rumour

A 37-year-old man, Folorunsho Dada, was on Friday charged before an Akure Magistrates’ Court for allegedly giving the police false information.

The accused, whose address is unknown, is being tried for giving false information to the police.

Dada pleaded innocence of the offence.

But the prosecutor, Insp. Jimoh Ibrahim, told the court that the accused committed the offence on March 28 at about 11.45pm at Oda near Akure.

“He gave information to the police which he knew to be false with the intention to cause an officer to arrest and detain one Chukwu Chikaodini,” he said.

According to him, the accused had alleged that his manhood disappeared when Chikaodin’s body touched him.

Ibrahim said the offence contravened Section 125(1), (a) and (b) of the Criminal Code, Laws of Ondo State, 2006.

The prosecutor asked for an adjournment to enable him to assemble two witnesses for trial of the case to begin.

Counsel to the accused, Mr Kehinde Balogun, who did not oppose the application, urged the court to grant him bail on liberal terms.

The Magistrate, Mrs Iretolu Dada, granted the accused bail in the sum of N200, 000 with two sureties in like sum.

She said the sureties must reside within the court’s jurisdiction.

Further hearing has been adjourned to May 8.