As Brexit unfolds....

In the aftermath of Brexit, some commentators under a guise presented as astute understanding of European Union Law suggested that the referendum in UK is final and the exit a foregone conclusion.

I offered my disagreement and wish it to stand on record. I have stated for all purposes that the vote is not necessary final, that the issues go beyond the obvious and is implicated by the unwritten constitution of Britain and its conventions.

I have also informed my view upon on what occurs next, on who the next Prime Minister is and whether new elections are held. For instance a new Prime Minister who opposes Brexit, may campaign in an election on that basis and if he wins claim a new mandate to ignore the referendum. Secondly there is the ongoing petition for a 2nd referendum.

As a matter of precedent I referred to Irish Republic who rejected the Monetary Union in a referendum but were allowed a second one which eventually allowed them to reverse the earlier vote. We are in uncharted territory here.

I believe in this post brevity and relevance are more pertinent rather than allusions to matters hardly germane. I may not dwell or be domiciled in Europe but I lay claim to some understanding and appreciation of issues.

By the way i voted to remain in Europe...

Fayose and The Grundnorm...a brief comment.

Re: the Fayose case: There is an argument that the current constitution imposed by military decree in 1999 is the grundnorm. 

I choose to throw in a problematique and argue in the following paragraphs below.

I start with a definition of the concept - Grundnorm being a concept in the Pure Theory of Law created by Hans Kelsen, a jurist and legal philosopher. he used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. 

Some may argue that our constitution was imposed by decree and not freely agreed by 'We the people', therefore cannot be said to denote the basic norm or normalcy, order or rule that forms an, being one of many, basis for our legal system...The position of it being the grundnorm is therefore I suggest contestable and I mischievously extend the principle from the paper below to question it.

Christopher May argues in his paper, 'The Rule of Law as the Grundnorm of the New Constitutionalism': ''....is undermined by the actual imposition of a westernised rule of law that seeks to structure societies to enhance and facilitate the plunder of the local resources. This imposition undermines the real‟ (localised and organic) rule enjoyed by ...'' 

http://www.academia.edu/1949431/The_Rule_of_Law_as_the_Grundnorm_of_the_New_Constitutionalism

Still on Fayose....and Interpretation of the Law

There is such a thing as what the intent of the framers of the 1999 constitution was/is....in other to get that, in rules of statutory interpretation, you must consider the whole and indeed sometimes extraneous records, we operate a a principle of stare decisis and it is settled in the case of Fawehinmi v IGP (2002) NWLR page 606, held that the group under immunity can be investigated but not prosecuted till the end or their tenure. If the investigation is hobbled by a free access to account, then it freeze does not breach the intent and spirit of the immunity clause. The purport of the constitution and indeed law is not and cannot be to aid and abet criminal acts, it is ultimately to emancipate the people and create social justice. You have to take the constitution together with case law and of course other statute to obtain coherence of purpose.....I will below open up a discourse on statutory interpretation by copying and pasting copiously below.

"The term statutory interpretation refers to the action of a court in trying to understand and explaining the meaning of a piece of legislation. Many cases go to appeal on a point of interpretation, Indeed, Lord Hailsham, a senior English judge, once said that “probably 9 out of 10 cases heard by the Court of Appeal and the House of Lords turn upon or involve the meaning of words contained in statute or secondary legislation.”

Why is this the case? First, laws must be drafted in general terms and must deal with both present and future situations. Often, a law which was drafted with one particular situation in mind will eventually be applied to quite different situations. A classic example is the UK Criminal Justice Act, part of which was originally designed to curb illegal warehouse parties but which was later used to crush demonstrations, often involving people from very different backgrounds to those attending the so-called raves.

Legislation is drawn up by draftsmen, and a draftsman’s capacity to anticipate the future is limited. He may not foresee some future possibility, or overlook a possible misinterpretation of the original intentions of the legislation. Another problem is legislation often tries to deal with problems that involve different and conflicting interests.

Both legal and general English contain many words with more than one meaning. In fact, some of the terms in TransLegal’s Legal English Dictionary have seven or more distinct definitions. With this being the case, even the best drafted legislation can include many ambiguities. This is not the fault of the draftsman, simply a reflection of the fact that where people look at a text from different points of view they will naturally find different meanings in the language used.

Judges in England generally apply three basic rules of statutory interpretation, and similar rules are also used in other common law jurisdictions. The literal rule, the golden rule and the mischief rule. Although judges are not bound to apply these rules, they generally take one of the following three approaches, and the approach taken by any one particular judge is often a reflection of that judge’s own philosophy.

The Literal Rule

Under the literal rule (also: the ordinary meaning rule; the plain meaning rule), it is the task of the court to give a statute’s words their literal meaning regardless of whether the result is sensible or not. In a famous judgment, Lord Diplock in Duport Steel v Sirs (1980) said “The courts may sometimes be willing to apply this rule despite the manifest absurdity that may result from the outcome of its application.” The literal rule is often applied by orthodox judges who believe that their constitutional role is limited to applying laws as enacted by Parliament. Such judges are wary of being seen to create law, a role which they see as being strictly limited to the elected legislative branch of government. In determining the intention of the legislature in passing a particular statute, this approach restricts a judge to the so called black letter of the law. The literal rule has been the dominant approach taken for over 100 years.

The Golden Rule

The golden rule (also: the British rule) is an exception to the literal rule and will be used where the literal rule produces the result where Parliament’s intention would be circumvented rather than applied. In Grey v Pealson (1857), Lord Wensleygale said : “The literal rule should be used first, but if it results in absurdity, the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no further.”

One example of the application of the golden rule is the case of R v Allen – Defendant is charged with bigamy, an offence prohibited in Offences Against Persons Act 1861 which reads “whoever is married, marries another commits bigamy.” The court held that the word “marries” need not mean a contract of marriage as it was impossible for a person who is already married to enter into another valid contract of marriage. Hence, the court interpreted it as “going through marriage ceremony”.

The Mischief Rule

The final rule of statutory interpretation is the mischief rule, under which a judge attempts to determine the legislator’s intention; what is the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy? The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon’s Case (1854): “…for the sure and true interpretation of all statutes in general, four things are to be discerned and considered:

1. What was the common law before the making of the Act?

2. What was the mischief and defect for which the common law did not provide?

3. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth?

4. The true reason of the remedy; and then the office of all the judge is always to make such construction or shall suppress subtle inventions and evasions for continuance of the mischief and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

This system of relying on external sources such as the common law in determining the true intention of the parliament is now seen as part of the purposive approach, the approach generally taken in the civil law jurisdictions of mainland Europe. Although the literal approach has been dominant in common law systems for over a century, judges now appear to be less bound by the black letter of the law and are more willing to try to determine the true intention of the Parliament. The task of the judge is now seen as being give effect to the legislative purpose of the statute in question.

As well as these three rules of interpretation, there are a number of rules that are held to apply when determining the meaning of a statute:

1. The statute is presumed not to bind the Crown

2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law)

3. They do not interfere with legal rights already vested

4. They do not oust the jurisdiction of the courts

5. They do not detract from constitutional law or international law

Finally, there are a number of intrinsic (=interal) and extrinsic (=external) aids to statutory interpretation."

Can EFCC freeze Fayose's Bank Account?

There is a suggestion that the freeze on a sitting governor's personal account suggests proceedings have been instituted against the him/her and that it violates the letter and spirit of immunity of the Nigerian constitution. The premise is that all ex-parte orders or applications suggests proceedings or prosecutions have been initiated or will end in initiation of such. I beg to disagree. Please read the relevant Act of EFCC:

"34.-{ I) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under

this Act and or any ofthe enactments specified under section 7 (2) (a)-{f) ofthis Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of

the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account."

How does an application to the court ex-parte imply proceedings have been instituted? I will suggest these powers enable EFCC to preserve the res in the course of its investigation. There are many instances where you approach the court ex-parte, issue of arrest warrant, witness order etc, none of these necessarily always suggest a trial or proceedings have been instituted or commenced, it could be a prelude, and such accounts could be unfrozen if the investigation yields nothing.

Furthermore there is the settled Supreme Court case of Fawehinmi v IGP(2002) NWLR page 606, held that the group under immunity can be investigated but not prosecuted till the end or their tenure. I submit that the powers exercised here by EFCC are pursuant to its investigation and not necessarily the institution of proceedings.

Please read this more substantial contribution by another learned colleague:

"The Supreme Court had correctly stated the position in Fawehinmi's case supra that "criminal proceedings" as envisaged by Section 308 (1) (a) of the Constitution will only arise when a charge is brought. In rejecting the respondents' argument that investigation was part of criminal proceedings, the Apex Court cited with approval the decision in the American case of Post v. United States (1896) 161. U.S. 583; 16 Court Reporter, page 611 at 613, in which it was held -

"Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused, either by indictment presented or information filed in court, or at the least, by complaint before a magistrate..."

Since investigating a governor is permissible, does an application to the court for power to freeze the account of a governor under Section 34 (1) of the EFCC Act violate Section 308 (1) (c) of the Constitution which states that "no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued"?

The answer is indisputably in the negative (it is "Capital No"). This is because the law expressly states that the application should be made in the absence of the owner of the account, that is, ex-parte. If the EFCC seeks to freeze the account of a governor, there will be no process requiring or compelling the attendance of the governor since same is ex-parte and not on notice. Therefore, Section 308 (1) (c) is neither applicable nor violated in any way.

Freezing of accounts serves principally two purposes. First, by freezing a suspect's account, the commission prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is eventually prosecuted and convicted. Immunity clause cannot prevent the EFCC from securing and preserving monies found in the account of a governor provided the Chairman of the EFCC is satisfied that the money is proceeds of crime. Second, the money is freezed for preservation and use as evidence during trial.

From the foregoing, it is clear that there is no provision in Section 308 of the Constitution that is offended by the freezing of the account of a governor. There is no argument about the fact that freezing of bank accounts of persons who are under criminal investigation is merely an interim, precautionary and necessary step preparatory to arraignment and prosecution. Interestingly, an illustration was given by Justice Uwaifo J.S.C. (as he then was) in Fawehinmi's case of an instance where it is alleged that a governor "STOLE PUBLIC MONEY AND KEPT IT IN A PARTICULAR BANK". His Lordship in his prophetic wisdom rightly stated that a "monstrous situation" will be created if the police (in this case the EFCC) is unable "TO FIND OUT (IF POSSIBLE) ABOUT THE MONEY LODGED IN THE BANK" or "AND TO GET PARTICULARS OF THE ACCOUNT AND THE SOURCE OF THE MONEY".

According to an online newspaper, Sahara Reporters, "Sources at Nigeria's premier anti-corruption agency, the Economic and Financial Crimes Commission (EFCC) have revealed that a personal account at the Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was frozen in connection with over N1.2billion he took in 2014 from the disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute his re-election as governor." If this was the basis upon which the EFCC Chairman became satisfied that the money in Fayose's bank account is/was made through commission of an offence under the EFCC Act or other applicable laws, nobody can question him, except the court.

Governor Fayose has not been invited for interrogation by the EFCC; he has not been arrested or imprisoned; no criminal proceedings has been commenced against him, and clearly no process of court requiring or compelling his attendance in court has been issued or applied for. These are the only things and actions that Section 308 of the Constitution forbids. The Supreme Court in Fawehinmi's case supra declared that a governor can be investigated in any manner, provided it does not lead to any these limited situations. The Apex Court emphasised that these limited situations must not be extended under the guise of liberal interpretation of the Constitution.

The question then is? Has any of the protections given to Governor Fayose by Section 308 of the Constitution been taken away by the EFCC?

The answer is NO.

However, the EFCC must exhibit an order of the Court that empowered it to freeze Fayose's account. In the absence of such authorisation, the action is illegal, ultra vires, oppressive, undemocratic, null and void and of no effect whatsoever. If the condition precedent was not complied with, the account should be de-freezed immediately without delay with an apology to the governor. Fayose has the right to seek legal redress in the absence of an order of the court. In the case of Mobil v. LASEPA (2003) 104 LRCN 240, the Supreme Court held that failure to comply with a condition precedent is fatal and renders an action a nullity.

One does not need to be a lawyer to know that law enforcement agencies, including the EFCC, in the course of investigation of crime usually and are legally empowered to take possession of material evidence. Freezing of a suspect's bank account is undoubtedly an integral part of the investigation process and procedure. If it were not so, Section 34 (1) of the EFCC Act would only been invokable when a charge or an information has been filed. I submit however that the Court has the supervisory jurisdiction to examine, review and or revoke any freezing order issued by the EFCC chairman depending on the circumstances and the justice of each case. The order itself it interim in nature and not absolute or perpetual.

As a postscript, I further submit that any reference to the immunity clause in Section 308 of the Constitution that is outside the limited protection in the express provisions of that section is legally indefensible and baseless. The President, Vice President, Governors and Deputy Governors only enjoy limited immunity. There is nothing dictatorial, "illegal" or "criminal" in investigating a governor for alleged offences.

Let it be known that immunity is not a license to commit crimes or engage in wanton corruption. Section 308 of the Constitution only offers limited protection. It was never the intention of the framers of the 1999 Constitution for the clause to be exploited as a weapon for impunity, executive lawlessness and self-enrichment.

Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: inibehe.effiong@gmail.com"

THE LIBELOUS CLAIM OF FAYOSE...

"'Premium Times' reporting on Gov. Ayo Fayose's allegation against Wife of the President Aisha Buhari is reckless, factually inaccurate, and libelous all rolled into one.This is particularly disquieting because thousands, perhaps millions, of Nigerians on social media are ignorantly spreading a malicious falsehood against an innocent woman. Read the original New York Times story published on April 29, 2007 (http://www.nytimes.com/…/29/business/yourmoney/29lobby.html…) to know that the "Aisha Buhari" mentioned in the corruption scandal ISN'T the president's wife. In the New York Times story, "Aisha Buhari" identified herself as the "daughter” of “General Muhammadu Buhari," not his wife. Of course, President Muhammadu Buhari has no daughter by that name. The said "Aisha Buhari" is obviously a criminal impostor who has not the remotest relationship with President Buhari either by marriage or by blood. Take a look at her picture, which I downloaded from the New York Times website, and tell me if she bears even the slightest resemblance to Mrs. Aisha Buhari or any of the president's daughters. This lady is a major-league scammer who has refused to reveal her real identity, and Premium Times failed to do basic fact-checking to confirm this. It took me less 2 minutes to find this out.

In case you're not able to read the full story from the New York Times, here are excerpts that conclusively show that the "Aisha Buhari" mentioned in the story is neither the president's wife nor any of his daughters. If the real Mrs. Aisha Buhari decides to sue Premium Times (and Ayo Fayose), predicting her success against them in the court is a slam dunk, as Americans say.

"As for Ms. Buhari, who is living in Virginia, it’s not clear who she really is. For one, she is under investigation in Nigeria by its Economic and Financial Crimes Commission, said its head, Nuhu Ribadu.

"Mr. Ribadu said he is uncertain if her name is Aisha Buhari, but he added that she is not a daughter of General Buhari. The former Nigerian ruler agrees.

"'I don’t have any relationship with that Aisha Buhari,' Mr. Buhari said. 'I don’t have any daughter called Aisha Buhari living outside this country. She is not my daughter.'

"Mr. Ribadu’s agency has asked American authorities to arrest Ms. Buhari. That has not happened, but the Justice Department has an interest in her. Last summer, she testified before a grand jury investigating Mr. Jefferson, the congressman, who is suspected of soliciting bribes from American companies seeking business in Nigeria."

20 per cent fail Nigerian law school examinations

About one in five students failed the recent law school examination and will not be called to the bar, official results show.

The results show that 23. 6 per cent of students who sat for the final examination conducted by the Nigerian Law School will not make it to the Nigerian Bar Association this June.

The figure represents 720 candidates who sat for the examination held in April.

Potential candidates to the bar must sit and pass the final examination by the Nigerian Law School, to be qualified for the call to bar, scheduled to take place on June 12.

A statement from the Director General of the law school, Olanrewaju Anadeko, said 73 per cent of those who took part in the examination in April passed it.

Out of 3,056 candidates who partook in the examination this year, 2, 232 candidates passed, while 104 of them had conditional passes, apart from the 720 candidates who failed the examination, the statement said.

According to Section four of the Legal Practitioners Act, candidates must meet all other requirements to qualify for the call to bar.

Section 4 (2) of the Act implies that the 104 candidates with conditional passes, representing 3.4 per cent of the total number of candidates, cannot rely solely on their kind of result to make it to bar.

Information provided by the school states that after concluding their study at the Nigerian Law School, successful candidates are given their certificates from the council and then called to bar by the Body of Benchers, ‘subject to the provisions of the Legal Practitioners Act’.

The Council of Legal Education is the regulatory body for the Nigeria Law School, which must be attended by persons willing to practice law in Nigeria.

It also determines the steps to be taken by persons who have obtained a university degree in law from a foreign institution and are willing to practice as lawyers in Nigeria.

The Nigerian law school and the Council of Legal Education were established in 1962, following the enactment of the Legal Education Act to ensure the study of the Nigerian customary law by prospective members of the bench.  ... Premium News

• Email

See More: http://wp.me/p2LdGt-RmH

Nothing Called Sudden Death?

By : AJAGZY OKUNRIN OGUN

I am a high blood pressure patient, I know in Africa we don't like to talk about illnesses, but knowledge saves lives. I was first diagnosed in 2012 and I was initially in denial and said it was some kind of fluke when the doctor told me I would probably have to take my medication for the rest of my life.

i take my medication daily and also own a blood pressure reader which I use to monitor myself. I also know that when I exercise regularly, my blood presuure normalizes. I have not being faithful with my exercise routine because this last year has being exceedingly tedious for me.

Without mincing words these are perhaps the most challenging times of my life and I give myself the excuse that I have so much to do and the pressure of bills and demands that I have put exercise in a back corner of my schedules. I however do religiously take my medication and tell myself. "Once I am in a better place with my business I will resume my exercise regime". I have also not being checking my blood pressure regularly.

This morning when I read about the passing of Amodu. I learnt he was a blood pressure patient, I gathered last night when he complained of a chest pain his blood pressure was 140/100. So reluctantly this morrning, I picked up the blood pressure reader, strapped it on my arm and sought to take my first measurement in weeks. It was alarming, 150/105. I immediately doubled my dose of my medication as advised by my physician and I have decided to no longer let the weight of my challenges send me to an early grave. I have put off my main phone all day so I can have some peace.

I am currently lounging in my neighborhood pool with my daughters taking it easy, I will resume my exercise regime on Monday. I don't really eat much, but I will pay attention to what I eat as well. I don't drink enough to give me a health problem so on that ground i am good. My major issue is the stress of business and the financial burden of  having to uproot my life and living in a new place. I had to start my business from scratch over here and 3 straight years of paying bills with limited income. But I realize,if I stress myself to death, I would only make life more difficult for my dependents. So from now on my HEALTH becomes number one. I am confident my business will get itself on a stroll at the right time, I have done it before so I can do it all over again.

My advise to all of you my friends particularly those of us on the wrong side of middle age, we need to take better care of our bodies. There is nothing like SUDDEN DEATH, mostly these are manifestations of symptoms we have long ignored and bad habits we have formed over the years. I am getting my health back and I would be more physicaly and mentally prepared to deal with all of life's challenges. How about you? High Blood Pressure, Diabetes, High Colesterol and such diseases can be managed effectively and we can still live full healthy and long lives for our kids,

BREAKING: Stephen Keshi dies suddenly at 54

June 08
02:47
2016
👤by Remi Sulola

Nigerian football icon Stephen Okechukwu Keshi died suddenly in the early hours of Wednesday in Benin City, Edo state, TheCable understands.

The former international football player and coach had lost his wife of 33 years, Kate, last year after a prolonged battle with cancer.

TheCable confirmed his death from a member of his family as well as one of his close associates.

“He was not ill at all, never showed any signs of  illness, but we suspect he never got over the death of his wife,” a friend said.

He is survived by four children and his mother.

Keshi, the only Nigerian coach to have won the Africa Cup of Nations, achieved a rare feat in 2013 by becoming only the second person to win the trophy both as a player and a coach.

The only other person to have achieved the feat is Egypt’s Mahmoud El-Gohary.

Keshi, a product of St. Finbarr’s College, Akoka, Lagos, started his playing career at a very young age at ACB Football Club, and later played for New Nigeria Bank, Stade d’Abidjan, Africa Sports, Lokeren, Anderlecht, RC Strasbourg, and a host of other clubs.

He represented Nigeria from 1982, at age 20, till 1994, most of the time captaining the Super Eagles and scoring vital goals from his position as a central defender.

He also coached Togo and Nigeria at the World Cup, as well as Mali.

Keshi, nicknamed the “Big Boss” for his leadership skills, is the fifth member of the all-conquering 1994 team to die, following Uche Okafor, Thompson Oliha, Rashidi Yekini and Wilfred Agbonavbare.

Follow us on twitter @thecableng

Copyright 2016 TheCable. Permission to use quotations from this article is granted subject to appropriate credit being given to www.thecable.ng as the source.

The Last Portraits Of Muhammad Ali By Zenon Texeira

Jo Daniel 21 hours ago

The haunting last portrait of Muhammad Ali: Moving photos reveal the devastating effects of three decades of Parkinson’s as tragic boxing legend raises his fists for the final time.

Harrowing effects of more than three decades fighting Parkinson’s seen in extraordinary images published today
British photographer Zenon Texeira captured moving portraits of former world champion at his home in March
Ali passed away on Saturday aged 74 after 32-year battle with neurodegenerative disease brought on by his boxing
Muhammad Ali raises his fists for the final time in haunting photographs from The Greatest’s last ever shoot.

The harrowing effects of more than three decades fighting Parkinson’s can be seen in the extraordinary images published today by the Daily Mail for the first time.

But so too is the unmistakeable hint of a smile.

British photographer Zenon Texeira was invited into Ali’s home in Phoenix, Arizona, at the end of March with the blessing of the former world champion’s family.

To The Nigerian Church....

To the Nigerian Church, whilst I celebrate the increasing multiplicity of your presence in nooks and corners of Nigeria, the grandeur of your buildings and the many universities you have created. 

I query the absence of a stand beyond prayers, a stand deeper and more analytical, a stand that responds to the crises that has become Nigeria, leading to a response that speaks truth to power. 

A response that addresses the crises manifest in the inability of our government to have a fully functioning emergency service. A response beyond tears and the symbolic. 

I ask how can the Church respond in the face of an impotent government and in the face of a confounding enemy called corruption?