Month: October 2020

In life, there are some things we don’t have control over. One of them is that children can’t be involved in the selectional process of their biological parents. On this issue, we can’t sòrò sókè. Nevertheless, there are still some people that are being referred to as bastards (illegitimate) in society. In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with it. Nobody likes being called a bastard.

Under Family Law, a child is considered illegitimate if born outside of a valid marriage. It is important to note that the issue associated with illegitimacy is always heightened during succession. Fortunately, this issue doesn’t pose as a problem provided the deceased died testate, that is, he died leaving a Will behind. The rationale is that the testator has the right to give any of his/her properties to his/her child or anybody whatsoever, whether the child is born within or out of wedlock or not born by him at all.

Conversely, this issue is heightened when the deceased died intestate; that is without a Will on how his assets should be distributed, and this problem is further compounded where the paternity of the child is not acknowledged by the deceased before his death, either because he did not know about the existence of that child, or for one reason or the other.

Furthermore, S.42 of the Constitution of the Federal Republic of Nigeria 1999 as (amended) houses the Right to Freedom from Discrimination and subsection(2), by extension, particularly provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. While the provision of the supreme law is appreciated, the writer still submits that this provision tends to encourage promiscuity in most homes. The reason is that a father or mother, having known, that no child will be discriminated against based on sex may be motivated to walk the path of adultery.

Since the Courts will not allow the law to be used as a mechanism to perpetrate acts contrary to public opinion, they have, through their various judicial pronouncements, extended the requirements which include either acknowledgment by the father or presentations of clear and convincing evidence. Based on this, the Court in Okonkwo v. Okonkwo, (2014) 17 N.W.L.R (pt 1435) 18 held that: by virtue of section 42 of the Constitution of the Federal Republic of Nigeria 1999, children born out of wedlock but whose paternity was acknowledged by the intestate have equal share with the children of the marriage.

What if the father doesn’t acknowledge the child? Is that the end of the road for such a child on the voyage of inheritance? No. In addition to the acknowledgment of paternity by the intestate, the paternity of a child can be established by proof such as a birth certificate, forms, photographs, and other forms of documentary evidence. The case of Ukeje v. Ukeje (supra) is very illustrative of this point as the respondent won the case solely on documentary evidence. The court held that per Olabode Rhodes-Vivour JSC: ….on the issue of whether the respondent was the daughter of L.O. Ukeje (deceased), family photographs may have helped to resolve the issue, but the birth certificate of the respondent was decisive in settling the issue.

It is also noteworthy that the paternity of a child can also be proven using scientific test. This test is also recognized by the Child Rights Act. According to S.63(1)(a) of the Act: In any civil proceedings in which the paternity or maternity of a person falls to be determined by the court hearing the proceedings, the court may, on application by a party to the proceedings give a direction (sic) for the use of scientific tests, including blood tests and Deoxyribonucleic Acid tests to show that a party to the proceedings is or is not the father or mother of that person.

In conclusion, the process of proving the paternity of an illegitimate child is cumbersome, particularly where the deceased died intestate. However, once it is proven, the web of stigmatization hitherto placed on such an individual will be removed and he/she will be on the same pedestal as the legitimate child consequently giving him/her the right to partake in the succession process.

Thank you. See you next week. Please do not forget to comment and share.💝

For over a week now, several Nigerians have been protesting over cases of assault, unjustified arrest, extortion, brutality, and killing of peaceful protesters by members of the Nigerian Police Force. We at The Legal Standpoint also join our voice with other united voices of Nigerians to call on the Nigerian government to quickly and manifestly hearken to our pleas.

Since #EndSar is a global protest which affects every Nigerian, this week’s publication centers on legal snippets surrounding the protest.

1. As stated last week, engaging in a peaceful protest is a constitutional right of citizens. See Here

2. Peradventure someone got hit by a stray bullet or intentionally shot at during the protest and still alive, by virtue of Section 1 and 2(2)(a) of the Compulsory Treatment and Care for Victims of Gunshot Act 2017 (The Act), every hospital in Nigeria whether private or public shall receive and treat gunshot or bullet wound victims with or without police clearance and such an individual must be attended to even without the payment of an initial monetary deposit.

Furthermore, there is a duty of care on every person, including, the security agent, to make sure they render every possible assistance to the person with a gunshot wound and ensure such an individual is taken to the nearest hospital for immediate treatment. The Act further states that any person or authority inclusive of the police, other security agent or hospital who stands by and fail to render assistance and this results in the unnecessary death of a gunshot victim shall be liable to imprisonment for 5 years or a fine of ₦500,000.00 or both.

3. While exercising this constitutional guaranteed right to a peaceful protest, if a protester’s rights are violated, such an individual can bring an against the violator in a competent Court of Law.

Thank you and see you next week.

#EndSars#EndPoliceBrutality💪🏿✊🏿

When it comes to protests, not only is Nigeria way too big, we are also twice as tall. Starting from the #RemovalofFuelSubsidy, to the #RevolutionNow, leading to the #EndSarCampaign and #NomeansNo, protests are endemic to the Nigerian sociopolitical space. Being one of the methods of political participation, protests provide the opportunity for citizens to openly ventilate their waves of anger on certain political, economical, and/or social issues that they do not agree with. More often than not, they also signal a clarion call for accountability and responsibility on part of the leaders. After all, had it been things were normal, protests would have been reduced to the barest minimum.

In addition, while some governments seek to underfmine the longevity of protest movements by acquiescing to protesters’ demands, whereas others choose to quash them with force. The latter has been on a recurring situation in Nigeria. The vast majority of unprovoked attacks on protesters are totally unwarranted especially where the protests are entirely peaceful, devoid of rancor or any form of violence, and constitute no security risk nor a violation of any known law.

In Nigeria, citizens’ right to a peaceful protest is drawn from the right of Expression, Peaceful assembly, and Movement as enshrined in Sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 10 and 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Just like every other right, the Right of Freedom of Association and Assembly are qualified rights, that is, they have exceptions. The exceptions are assemblies that are violent, leading to the breakdown of law and order in society will not be allowed by the Law enforcement agencies whose primary responsibility is the maintenance of law and order.

THE FACT OF THE CASE
The All Nigeria Peoples’ Party had requested the Inspector-General of Police to issue police permits to its members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused by the police chief without any reason. The ANPP decided to hold the rallies. The first rally which held in Kano on the 22nd of September 2003 which was attended by the party’s presidential candidate, General Muhammadu Buhari, and other leaders of the ANPP was violently disrupted by the police on the ground that the organizers had not obtained a police permit.

THE ONE MILLION NAIRA QUESTION
The relevant issue that came up for determination was whether a permit is needed before one can engage in a rally and protest paying cognizance to S. 1(1)(2) of the Public Order Act. For clarification sake, these sections will be summarized. S.1 of the Act empowered the Governor of each state to direct the conduct of all assemblies, meetings, and processions on the public roads or places of public resort in the State and prescribe the route by which and the times at which any procession may pass. S.2 states that any person who is desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort shall, unless such assembly, meeting or procession is permitted by a general licence granted under subsection (3) of this section, first make application for a licence to the Governor not less than 48 hours.

From this aforementioned, it is obviously seen that the provisions of the Police Order are contrary to that of the Constitution. Based on the Supremacy Clause embedded in S.1(3) of the Constitution, If any other law is inconsistent(in this case, the Police Order Act) with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void. See Abacha &Ors v. Fawehinmi (2000) LPELR -14 SC.

THE JUDGMENT
The court held per Adekeye JCA (as he then was) that “Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a tread recognized and deeply entrenched in the system of governance in civilized countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.

Recalling that the British colonial regime had introduced and imposed the Public Order Ordinance to stop the Nigerian people from protesting against foreign domination and exploitation Justice Adekeye was compelled to ask “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?”

On the fear usually expressed by the Police that a peaceful protest might be hijacked by hoodlums leading to a breach of the peace, the Court was of the view that “If as speculated by law enforcement agents that breach of the peace would occur, our Criminal Code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”

This stamp of approval given by the Appeal Court, in this case, is also similar to the decision given by the Ghanaian Supreme Court in the celebrated case of NPP V IGP 1992-1993(585-2000) 2 HRLRA 1 where the Court came to the unanimous decision that “I wish to add a few words to demonstrate that police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century – the Public Order Decree that provided that the holding of all public processions and meetings should be subject to the obtention of prior police permission was unconstitutional because it was inconsistent with article 21(1) (d) of the 1992 Constitution, which granted every citizen the freedom of assembly, including freedom to take part in processions and demonstrations.”

In view of the aforesaid judicial pronouncement, the authorities of the Nigeria Police Force have recognized the fundamental right of Nigeria to protest peacefully without police permit. Hence, Principle 6 of the Nigerian Police Code of Conduct states that the Police shall: Maintain a neutral position with regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity. However, the Police are, sometimes, governed by this principle, and most times, they conspicuously and unapologetically violate it.

Fundamental Rights are guaranteed by the Constitution. Hence, they can only be abridged or restricted by a procedure permitted by law. As such, if a police officer has information that any rally or demonstration may lead to a breakdown of law and order, he/she is advised to apply for an injunctive relief in a competent Court of law.

In conclusion, this landmark decision restricts the power-drunk members of the SARS and other law enforcement agencies who always seek to escape punishment by hiding under the cloak of the Police Order Act. By extension, the right to protest peacefully within the ambits of the law is one that cannot be taken away in a democratic society bounded by the rule of law.

Thank you. See you next week.