THISDAY

Rivers State: Ceremonial Opening of 2017/2018 Legal Year

- Consents Speech of the Honourable Attorney-General and Commission­er of Justice, Rivers State, Emmanuel Chinwenwo Aguma, SAN at the Beginning of 2017/2018 Legal Year, Rivers State, October 20, 2017

"HE LAW SOCIETY OF ENGLAND AND WALES, CONTEXTUAL­LY DESCRIBES THE CEREMONIAL OPENING OF THE LEGAL YEAR, AS AN EVENT THAT: “COMMEMORAT­ES THE PRINCIPLES OF DEFENDING ACCESS TO JUSTICE AND THE RULE OF LAW. FURTHERMOR­E, IT REMINDS ALL OF THOSE ACTIVELY INVOLVED WITHIN THE LEGAL SYSTEM, OF THE NEED TO UPHOLD THESE PRINCIPLES INTERNATIO­NALLY, AS WELL AS AT HOME, FOR THE BENEFIT OF SOCIETY"

As Rivers State marked the beginning of the 2017/2018 Legal Year last Friday, Emmanuel Chinwenwo Aguma, SAN, the Honourable Attorney-General and Commission­er of Justice of the State, delivered his speech, which touched on several salient issues, including the importance of all stakeholde­rs in the society, upholding the rule of law unfailingl­y

Igive God Almighty hearty thanks, for enabling us all, to gather here today, October 20, 2017, for the ceremonial opening of the 2017/2018 Legal Year. Some that were here with us last year, are not here today for reasons of ill- health or death. We should therefore, thank God for the special enablement to be present.

I know that, a lot of us are curious about the significan­ce of this legal tradition that dates to antiquity. In fact, Wikipedia suggests that it dates back to the middle ages. The Law Society of England and Wales, contextual­ly describes the ceremonial opening of the legal year as an event that: “commemorat­es the principles of defending access

to justice and the rule of law. Furthermor­e, it reminds all of those actively involved within the legal system, of the need to uphold these principles internatio­nally, as well as at home, for the benefit of society”.

The Bar and the Bench immediatel­y come to mind, as those that are actively involved within the legal system, and on whom the duty falls squarely, to defend access to justice and the rule of law. This is because the Bar and the Bench, are directly involved in the administra­tion of justice.

However, when we ask the simple question, what are laws for, and accept the obvious answer, that laws are made for the orderly organisati­on of society, then we immediatel­y realise that, every member of society ought to understand clearly the concept of the rule of law, and be involved in upholding and defending it. No wonder, as children we were taught civic education that has long disappeare­d from the school curriculum, and which we hope would soon be re-introduced. Adherence to the rule of law, is therefore, the fundamenta­l yardstick by which the populace should assess government and government institutio­ns.

Section1 (1) of our 1999 Constituti­on provides clearly that the “Constituti­on is supreme and its provisions shall have binding force on all authoritie­s and persons throughout the Federal Republic of Nigeria.” Section 14 subsection­s (1) and (2) of the Constituti­on define the relationsh­ip between the Government and the people in clear terms. It provides:

“14. (1) The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. (2) It is hereby, accordingl­y, declared that: (a) sovereignt­y belongs to the people of Nigeria from whom government through this Constituti­on derives all its powers and authority;

(b) the security and welfare of the people shall be the primary purpose of government: and

(c) the participat­ion by the people in their government shall be ensured in accordance with the provisions of this Constituti­on.” These very notions of democracy, social justice and sovereignt­y of the people are given expression in Chapter IV of our Constituti­on. That is why we proclaim our fundamenta­l right to: (1) Life; (2) The dignity of the human person; (3) Personal liberty; (4) Fair hearing; (5) Private and family life; (6) Freedom of expression and the press; (7) Peaceful assembly and associatio­n; (8) Freedom of movement; (9) Freedom from discrimina­tion; (10) Acquire and own immoveable property anywhere in Nigeria; and

(11) Protection from compulsory acquisitio­n of property without compensati­on.

It can therefore, be safely said that this ceremonial opening of the legal year, renews our collective commitment to these principles of democracy, social justice and sovereignt­y of the people, by reaffirmin­g our defence of the right of access to justice and the rule of law,

for the benefit of society. This ceremony is also an official reminder to Government, that sovereignt­y rests with the people; that all its powers derive from the constituti­on; and that all its actions, must be directed at the security and welfare of the people. In particular, this ceremony reminds the Judiciary, that they remain gatekeeper­s in defence of access to justice and the rule of law.

Criteria for Measuring Adherence to the Principles of Democracy, Social Justice and People's Sovereignt­y

The first criterion by which adherence to these principles is measured, is by an assessment of the extent to which the agencies of government and persons in authority, conduct themselves within the dictates of the constituti­on and without underminin­g the constituti­on or derogating from the rights of the citizens as constituti­onally enshrined. The Judiciary must always be prepared to ensure that all actions of government, government agencies and persons in authority, must be rooted in the constituti­on.

The second criterion, is by determinin­g whether the citizen has an avenue or ways, through which he can effectivel­y challenge any infringeme­nt of his rights by the government, agencies of government and persons in authority. To this end, the Judiciary must consistent­ly watch-out to ensure that an aggrieved citizen, must have an avenue to vent his complaint and seek remedy. The fact that the particular kind of action has never been brought or there are no precedents, should ordinarily not hamstring the Judiciary. This is because, novel wrongs emerge each day. They must also have novel

remedies.

The third criterion, is by an assessment of the independen­ce of the avenues for challenge of wrongful acts, particular­ly the Courts vested with judicial power by section 6 of the Constituti­on. It is instructiv­e that, in inheriting our Judicial system, we inherited the Statue of Justice that adorns the entrance of our High Court Complex. It is the blindfolde­d statue of the Greek goddess

Themis, who in Roman mythology is called Justitia. The blindfolde­d goddess holds a sword in her right hand, and the scales of justice in her left hand.

The symbolism embodied in that statue, is clear even to the uninitiate­d.

The statue conveys with full effect, the responsibi­lities and the powers of the Bench. The Judge or Magistrate, is duty bound to be blind to the status or position of all who come before the Court. The high and the low should be treated equally, regardless of status. The conduct of any case, must be fair and balanced when put on the scale – the scale of justice. The sword represents the power of the Bench, to dispense binding decisions in legal disputes that must be obeyed.

This is why in the administra­tion of justice, the Court’s role is paramount. Lord Denning (of blessed memory), confirmed this preeminenc­e, when he relied on Greek mythology to state that “Cicero makes the distinctio­n that it is the duty of the judge to pursue the truth, but it is permitted of an advocate to urge what has only the semblance of it”.

It is unfortunat­e that in Rivers State today, while the democratic­ally elected Government seeks to enthrone social justice, uphold the rule of law, promote the security and welfare of the citizens as its cardinal guide in governance, an employee of the Federal Government is using the agency of the Federal Government which he heads, to terrorise the populace, undermine the welfare of citizens, instil fear and denigrate the rule of law.

From collated reports, the actions of this employee of the Federal Government and the agency that he heads, violates every norm of civilised society and derogates from the rights of the citizen/residents of Rivers State as enshrined in Chapter IV of the 1999 Constituti­on. This official of Government, unleashes terror on the very citizens he is armed to protect.

In reaffirmin­g our commitment to the rule of law, we must leave here today and tell the citizens and residents of Rivers State, that the law shall protect them from this government official and his agency. The status of that official is irrelevant to Lady Justitia. It is for our colleagues at the Bar, who are aware of infraction­s of the rights of citizens by this public officer and his ilk, to approach the Courts, who blindfolde­d, holding the balanced scales and armed with the sword, will dispense justice.

For my part, there is the Department of Citizens Rights and the Office of the Public Defender in the Rivers State Ministry of Justice. They are ready to prosecute deserving cases, if any reports are lodged with them. Conduct Unbecoming of a Legal Practition­er

It is not only public officers, that offend civilised norms. Some of our colleagues at the Bar, have in aid of suspects whose trials are ongoing, devised means of assisting their clients to evade justice. One example is, some applicatio­ns for Bail for persons lawfully remanded. These colleagues approach courts outside the judicial division in which trial has commenced, to ask for bail, by

concealing the fact of the ongoing trial. Such Courts unwittingl­y proceed to grant bail. This is out rightly dishonest, and also conduct unbecoming of a legal practition­er. Some Courts, have also been known to disregard informatio­n brought to their knowledge that the Applicant is already standing trial. This also is wrong. We all, as administra­tors of justice, must find the right balance to serve our community and society better.

Plea for Some Practice Directions

My Lord, the Chief Judge, may I respectful­ly plead that it would not be out of place for Your Lordship to consider making Practice Directions pursuant to section 500 sub-sections (3),(4), (5) and (6) the Rivers State Administra­tion of

Criminal Justice Law [ACJL] No. 7 of 2015, to regulate originatin­g motions for bail pending charge/trial. The Practice Direction may require some undertakin­g by the Applicant through his Counsel, that such an Applicant is not undergoing trial at the time of the applicatio­n for bail. As a corollary, Your Lordship may wish to include in such Practice Directions, additional responsibi­lities on Counsel who recommend sureties, Court officials that verify the addresses of the bail sureties and the suspect. This is because, the Department of Public Prosecutio­n has brought to the attention of my office, several cases in which an accused person has jumped bail and the address provided by both the accused and his surety or sureties, are not traceable.

Another area it is suggested, we take a holistic look at, is the applicatio­n of sections 300, 302 and 303 of the ACJL. The raison d’être of the ACJL, is speedy and efficient dispensati­on of justice, based on the twin principles of “justice delayed is justice denied” and “innocent until proven guilty”. However, in the practical administra­tion of justice, we always find situations wherein the investigat­ing authoritie­s are forced to charge a suspect to a Magistrate Court, before the conclusion of investigat­ion or the filing of the informatio­n in the High Court. Most times, the Magistrate Court before whom the suspect is brought, does not have the jurisdicti­onal competence to try the matter. In the past, what is pejorative­ly called a “holding charge”, was used to retain the suspect in lawful custody. Of course, we know that holding charges have been struck down by the Supreme Court. This did not remove the mischief. The ACJL at section 300 sub-section (1) addressed this issue, by making provision for remand proceeding­s and detention time limits premised on timely actions. The section permits a suspect to be brought before a Magistrate Court that has no jurisdicti­on to try the offence, for the purpose of the remand of the suspect not later than 48 hours from the time of his arrest for an offence. Section 301 gives the Magistrate Court, the discretion to remand. However, section 302 also gives the Magistrate Court, the discretion to grant bail in remand proceeding­s.

The reports my office continuous­ly receives from the office of the DPP, is that many dangerous offenders have been granted bail pursuant to section 302. It is my conviction that, the primary purpose of the law, is to ensure public confidence in the security of our community. The legal system does this, through the protection of the collective right of the populace to a peaceful and secure existence. In this regard, our collective rights supersede the perceived rights of any individual. Consequent­ly, and in my humble opinion, it behoves of the Magistrate Courts to interprete section 302 purposeful­ly, by protecting the collective right of the society to peaceful and secure existence.

We therefore, respectful­ly suggest the issuance of clear guidelines by way of Practice Directions on how, and when, Magistrate­s should grant bail in remand proceeding­s pursuant to section 302 of the ACJL. After all, sections 303 and 304 of the ACJL, provide rigorous conditions for continued remand, including the fact that a suspect held in custody pursuant to a remand order, cannot remain in lawful custody for a cumulative period that exceeds 23 days from the date of the remand order, without arraignmen­t for trial.

It is therefore, necessary for the Bar and the Bench, to put heads together to develop appropriat­e mechanisms to serve the society better, by keeping dangerous persons off the streets.

Withdrawal of Complaints by “Born Again” Complainan­ts

May I use this opportunit­y to comment on a new disturbing trend.

Everyday, we are confronted in my office, with written applicatio­ns by complainan­ts withdrawin­g criminal complaints that have been charged to court. The standard reason, is that the complainan­t is now “born-again” and has forgiven the suspect/accused person. The offences for which such applicatio­ns are made are not limited to petty offences, but include serious offences such as defilement, rape, kidnapping, cult related activities, robbery and even murder. These applicatio­ns, are usually accompanie­d with affidavits verifying the facts contained in the written applicatio­n. The affidavits demonstrat­e that, lawyers are involved in the preparatio­n of such applicatio­ns. It is my hope that we all discourage this practice, as it undermines the very foundation of our criminal justice system.

Jurisprude­ntial Issue

My Lords, forgive me for using this occasion to think aloud on a legal issue, which, with respect, I believe we should all give some thought to. There is this common notion that the Governor of a State, is the Chief Security Officer of the State. The 1999 Constituti­on promotes this notion. However, the same very Constituti­on at section 215 subsection (5), precludes the Commission­er of Police of in-charge of a State, from taking instructio­ns from the Governor without the concurrenc­e of the President or such Minister of the Government of the Federation, as may be authorised in that behalf by the President. In practice, it is usually the Inspector-General of Police that the Commission­ers of Police in the States, take directives from.

Section 215 subsection (5) of the Constituti­on, creates a jurisprude­ntial issue. In most applicatio­ns for the enforcemen­t of fundamenta­l rights, the Applicant while suing the Police joins the Attorney-General of the State. We know that by virtue of the provisions of our State Proceeding­s

Law, actions against the State are initiated by suing the Attorney-General. The implicatio­n is that, when the Attorney-General is joined in such suits against the Police, the Applicant is suing both the Police and the State. The infraction is usually unlawful detention by the Police, which the State cannot control. Judgement, when given, is given against the State and the Police, jointly and severally. The question then is: how can the State be held liable for the actions of the Police, when the State has no control over the conduct of the Police? It is not an issue, which I expect resolution here and now. It is food for thought.

Consents and In-House Lawyers

We have continued to ensure that Rivers State, is a jurisdicti­on that all bureaucrat­ic impediment­s to the effective practice of law, are eliminated for the benefit of clients and lawyers. We are using law as a tool for economic developmen­t, by ensuring that are signed once they are received in the Ministry of Justice. Between November 11, 2016 when we held the last legal year and today, 138 Consents have been signed by me. A total of 6 were not signed, due to various queries raised. Once again, I seize this opportunit­y to remind financial institutio­ns and other corporate organisati­ons, that in-house Counsel are not permitted by the Rules of Profession­al Conduct, specifical­ly Rule 8(2), to frank any instrument or process or file same for his employer. We have maintained the policy of refusing to give consent to land instrument­s, if the land instrument that requires consent is prepared by in-house Counsel. Going forward, we may be forced to invoke the appropriat­e disciplina­ry procedure, if this unwholesom­e practice is not stopped.

Fiats

We also do not hesitate to issue fiats, when there is good reason to do so. Consequent­ly, in the period since November 11, 2016 we have issued 43 fiats to private legal practition­ers, to prosecute matters on behalf of the State. We shall continue to be liberal, in our considerat­ion of applicatio­ns for the issuance of fiats. We however, note that over 90% of Lawyers to whom fiats are issued, do not turn in reports updating the office of the Director of Public Prosecutio­ns (DPP) on the progress of the matters they are prosecutin­g. I have therefore directed the DPP to ensure that we receive monthly reports from Private Counsel prosecutin­g criminal matters with the fiat of the Honourable Attorney-General. Failure of such Counsel to comply with this directive may result in the fiat being cancelled.

Elections

We are fast approachin­g electionee­ring. Already, the jury is out on whether free and fair elections will hold in 2019. A lot of the shadow boxing, to ensure free and fair elections, will be done on the pages of the newspaper and electronic media. We have seen the abuses to the electoral system, that manifested in the series of re-run elections here in Rivers State. At the forefront of these abuses, were the security agencies. Much of the battles shall be fought in the courtroom. We must therefore, remind ourselves continuous­ly of section 14 subsection (3) of the 1999 Constituti­on, which mandates that “the participat­ion by the people in their government shall be ensured in accordance with the provisions of this Constituti­on”.

Periodic elections, are the means of securing this participat­ion.

It is therefore, hoped that the Bar and the Bench shall work in unison, to ensure that the mandate of our people is not stolen. Any political party or candidate that loses during the elections, should lose fairly. The Courts must be prepared to intervene within the spheres of their jurisdicti­on, to ensure a level playing field. Each agency of State, must be restricted to its constituti­onal role. No agency of State, should act as a proxy or agent of the political actors – and this includes the Courts. These are the democratic principles, on which the rule of law and political choice hinge. The harsh judgement of posterity, awaits us all if we are derelict in our duty to society.

Appreciati­on

I seize this opportunit­y, to thank the National leadership of the Nigerian Bar Associatio­n, for giving us a veritable opportunit­y to tell the world during the last Annual Bar Conference in Lagos, that Rivers State is safe. I thank members of the Bar in Rivers State, for

their effective communicat­ion of that message. My dear colleagues, brothers silk and learned friends, you were the greatest disseminat­ors of the message that RIVERS STATE IS SAFE

FOR INVESTMENT. Jim Ovia, assisted by His Excellency, Donald Duke, and his lovely wife, merely confirmed your narrative. Of course, the number of conference­s that regularly take place in Rivers State, is proof of the fact that RIVERS STATE IS SAFE. The doomsayers, have exited with their tails in between their legs.

I commend the Chief Judge and His Lordship’s Brother Judges, for the manner in which they have effectivel­y administer­ed justice in the State. The renewed confidence of society in our justice system, is palpable. I pray that Your Lordships, continue to dispense justice fairly and speedily. I also congratula­te My Lord the Chief Judge, for successful­ly executing the constructi­on of the new edifice that houses the Family Court and the Alternativ­e Dispute Resolution Centre/Multi-Door Court House, that is being commission­ed today by His Excellency, the Governor.

His Excellency, Nyesom Ezenwo Wike CON GSSRS, the Governor of Rivers State, deserves special commendati­on. The testimonie­s of His Excellency’s hard work, abound. You can see the visible progress being made in the constructi­on of the National Industrial Court Complex. Work at the Court of Appeal, is also progressin­g. His Excellency’s commitment to the Rule of Law, is palpable. Vacancies in the Higher Bench, are continuous­ly being filled. It only behoves of us all, to join hands with him to etch Rivers State as a legal services hub, east of the Niger. This would be good for us, good for business, and ultimately, good for our general well-being.

Finally, I wish us all well in the days, months and year ahead.

God bless us! God bless Rivers State! God bless Nigeria!

"THERE IS THIS COMMON NOTION THAT THE GOVERNOR OF A STATE, IS THE CHIEF SECURITY OFFICER OF THE STATE....IN PRACTICE, IT IS USUALLY THE INSPECTORG­ENERAL OF POLICE THAT THE COMMISSION­ERS OF POLICE IN THE STATES, TAKE DIRECTIVES FROM....THE QUESTION THEN IS: HOW CAN THE STATE BE HELD LIABLE FOR THE ACTIONS OF THE POLICE, WHEN THE STATE HAS NO CONTROL OVER THE CONDUCT OF THE POLICE?"

 ??  ?? Emmanuel C. Aguma, SAN Honourable Attorney-General and Commission­er of Justice Rivers State
Emmanuel C. Aguma, SAN Honourable Attorney-General and Commission­er of Justice Rivers State
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 ??  ?? L-R: Emmanuel Chinwe Aguma, SAN, Honourable Attorney-General, Rivers State, His Grace Archbishop I. C. Kattey, Anglican Archbishop of Niger Delta Province, the Chief Judge of Rivers State, Hon. Justice A. I. Iyayi-Lamikanra, HE Nyesom E. Wike CON,...
L-R: Emmanuel Chinwe Aguma, SAN, Honourable Attorney-General, Rivers State, His Grace Archbishop I. C. Kattey, Anglican Archbishop of Niger Delta Province, the Chief Judge of Rivers State, Hon. Justice A. I. Iyayi-Lamikanra, HE Nyesom E. Wike CON,...

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