Category: Law Project Topics & Materials

Abstract

Rendition is legal and within the confines of the law. Extraordinary rendition, on the other hand, occurs outside of the confines of the law. Extraordinary rendition is the practice of kidnapping or capturing people and sending them to countries that use torture or abuse in interrogations.((Abrham Yohannes (2019).Extraordinary Rendition And Extraterritorial State Obligations In African Human Rights System))  In 2021 Nwannekaenyi Nnamdi Okwu Kanu (known as Nnamdi Kanu), a Nigerian national with a recognized British citizenship, was been illegally arrested or perhaps kidnapped by interpol operating on Kenya territory. After the abduction he was been transferred to Nigeria where he was interrogated and tortured for more than 45days. The developing story of Nnamdi Kanu is one of the recent case of “extraordinary renditions” implemented by Nigerian government in cooperation with both Kenyan government in order to overwhelm the  Indigenous People of Biafra (IPOB) organization., IPOB is a Biafran separatist and Igbo nationalist organization in Nigeria. Its main aim is to create the consciousness, awareness and restoration of  an independent state of Biafra in the South East region of Nigeria through an independence referendum. This long essay analyses the particular vicissitude of Nnamdi Kanu, considered as a case study, and to face different issues linked to his extraordinary rendition by Nigerian government. The questions raised from this are: (1) Did Nigerian  and  Kenyan government violates the African Charter on Human and Peoples’ Rights on extradition which they are among States Parties to? If so, what are the legal implications and penalties for them? (2) Since Nnamdi Kanu holds a dual citizenship and enters Kenya as a British citizen, Do Nigeria government have a right to extradite him back to his primary country of origin and if so, is British citizenship superior to Nigerian citizenship in this case? 

CHAPTER ONE/INTRODUCTION

Since the leader of the Indigenous people of Biafra(IPOB), Nnamdi Kanu was brought back into the country, there have been arguments as to effect of such illegal mode through which he was brought back and the effect it will have on the jurisdiction of the court to continue his trial; stemming from the fact that he was not properly and legally extradited.((Where was Nnamdi Kanu arrested?: Ipob leader arrest extradition location – Wetin we sabi”. BBC (in Pidgin). 30 June 2021. Retrieved 3 July 2021.))

Recently, Kanu’s lawyer raised the doctrine of Extraordinary Rendition as a barrier to the jurisdiction of the court to continue his trial.((https://loyalnigerianlawyer.com/nnamdi-kanus-trial-the-principle-of-extra-ordinary-rendition-and-its-misconstrued-conjectures/))

Rendition, in legal terms, implies the transfer of a person (fugitive) from one jurisdiction to another. ((Black’s Law Dictionary 1410 (9th ed. 2004))) ((2E Nadelmann, „The evolution of United States Involvement in the International Rendition of Fugitive Criminals‟, 25 NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 813-885(1993))) In the case of what is usually called “ rendition,” the procedure involves the legal handing over (or back) a person to another jurisdiction with better rights or jurisdiction to try him.

Rendition is legal and within the confines of the law. Extraordinary rendition, on the other hand, occurs outside of the confines of the law.

According to Black’s Law Dictionary (9th ed.) ((Black’s Law Dictionary (9th ed.))) “Extraordinary rendition is the transfer, without formal charges, trial, or court approval, of a person ….to a foreign nation for imprisonment and interrogation on behalf of the transferring nation”.

According to the European Court of Human Rights, extraordinary rendition is an:   ‘’An extra-judicial transfer of persons from one jurisdiction or state to another, for the  purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture, or cruel, inhuman or degrading treatment’’.

It is simply government-sponsored abduction and extrajudicial transfer of a person from one country to another with the purpose of circumventing the former country’s laws.

 

Does extraordinary rendition rob the court of the jurisdiction to continue trial?

In the case of United States v. Alvarez-Machain, on whether or not the abduction of Alvarez-Machain from Mexico divested the district court of jurisdiction over respondent, the United States Supreme Court held per Chief Justice Rehnquist, writing for the majority, analyzed the continuing viability of the Ker-Frisbie doctrine. In Ker v. Illinois, Ker was forcibly abducted from Peru and brought to the United States to stand trial for larceny. Ker challenged the court’s jurisdiction over him and argued that he had a right under the extradition treaty between the United States and Peru to be returned to the United States only in accord with the terms of the treaty. The Supreme Court rejected Ker’s argument and held that “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence and presents no valid objection to his trial in such court.”

 

The above doctrine holds that the fact that a fugitive was brought into a court’s jurisdiction by means of an illegal arrest or a forcible abduction in violation of the defendant’s rights does not automatically divest the court of jurisdiction.

Applying the above doctrine to the case of Nnamdi Kanu, the fact that he was  illegally arrested, abducted, or allegedly tortured and brought into the country does not in any way rob the Federal High Court of  the jurisdiction to continue his trial.

There is a legal doctrine – Male captus bene detentus: (wrongly captured, properly detained) which emphasise the fact that a person may have been wrongly or unfairly arrested, will not prejudice a rightful detention or court trial under due process. This means that the procedure or means through which you are brought to court in itself will not prejudice a lawful court process.

No argument of course will justify the unconstitutional breach to Mr. Kanu’s right in the way he was brought back into the country, but these in themselves will not automatically divest or rob the court of its jurisdiction to continue his trial as suggested by his lawyer.

Opatola Victor Esq. (2021)Nnamdi Kanu: On the principle of extraordinary rendition.

ORIGINAL FULL MATERIAL PRICE – N30,000

ETHICAL AND LEGAL IMPLICATIONS OF THE USE OF MARIJUANA FOR CLINICAL PURPOSES

 

CHAPTER ONE

INTRODUCTION

Background to the Study

Cannabis,Ganja, Igbo, Weed, Morrocco, Indian hemp, Marijuana; they all refer to arguably the most commonly available naturally occurring psychoactive drug there is in the world. Its psychoactive abilities stem from the fact that it contains active chemical substances that can change brain functions and result in alterations in perception, mood, consciousness, cognition and behaviour. Cannabis is widely used as a recreational drug and sometimes, even for ‘spiritual’ purposes. More recently, its extraordinary medicinal capabilities are more openly acknowledged, resulting in decriminalization in some countries.[1].

Clinical importance surrounding marijuana has garnered much global attention in recent years. Controversies surrounding legal, ethical, and societal implications associated with use; safe administration, packaging, and dispensing; adverse health consequences and deaths attributed to marijuana intoxication; and therapeutic indications based on limited clinical data represent some of the complexities associated with this treatment. Marijuana is currently recognized by the U.S. Drug Enforcement Agency’s (DEA’s) Comprehensive Drug Abuse Prevention and Control Act (Controlled Substances Act) of 1970 as a Schedule I controlled substance, defined as having a high potential for abuse, no currently accepted medicinal use in treatment in the United States, and a lack of accepted safety data for use of the treatment under medical supervision.[2]

Cannabis is the most commonly cultivated, trafficked, and abused illicit drug worldwide; according to the World Health Organization (WHO), marijuana consumption has an annual prevalence rate of approximately 147 million individuals or nearly 2.5% of the global population. In 2014, approximately 22.2 million Americans 12 years of age or older reported current cannabis use, with 8.4% of this population reporting use within the previous month.3,4 General cannabis use, both for recreational and medicinal purposes, has garnered increasing acceptance across the country as evidenced by legislative actions, ballot measures, and public opinion polls; an October 2016 Gallup poll on American’s views on legalizing cannabis indicated that 60% of the population surveyed believed the substance should be legalized.[3] Further, a recent Quinnipiac University poll concluded 54% of American voters surveyed favor the legalization of cannabis without additional constraints, while 81% of respondents favored legalization of cannabis for medicinal purposes.[4] Limited data suggest that health care providers also may consider this therapy in certain circumstances.[5]In the United States, cannabis is approved for medicinal use in 28 states, the District of Columbia, Guam, and Puerto Rico as of January 2017.10

The use and acceptance of medicinal cannabis continues to evolve, as shown by the growing number of country now permitting use for specific medical indications. The Food and Drug Administration (FDA) has considered how it might support the scientific rigor of medicinal cannabis claims, and the review of public data regarding safety and abuse potential is ongoing.[6]

The agency saddled with the enforcement of drug laws in Nigeria is the National Drug Law Enforcement Agency (NDLEA). The agency has the job of curtailing the consumption of drugs in Nigeria. The general powers of the agency are contained in section 3 of the NDLEA Act.[7]

Under the NDLEA Act, which came about by the promulgation of Decree Number 48 of 1989, the possession or smoking of cannabis, or even allowing one’s premises to be used for dealing in cannabis, can result in a prison sentence from 15 years to life. Its precursor, the Indian Hemp Act, was even harsher, carrying a maximum sentence of death.

The 2011 United Nations Office on Drugs and Crime (UNODC) World Drug Report stated that cannabis use was prevalent among 14.3 per cent of 15 to 64 year olds in Nigeria. The same report in 2014 revealed that Nigeria had made the highest number of cannabis seizures of any African country. Following this report, the NDLEA launched a programme dubbed ‘Operation Weed Eaters’ that aimed to rid the country of cannabis.

The medical benefits of marijuana are key element of the pro-legalization argument. Advocates suggest that marijuana reduces stress, and has uses as an analgesic, an antiemetic, a bronchodilator, and an anti-inflammatory. It has been found to cure hiccups, helps protect against brain trauma, improves the immune system, and helps the brain terminate bad memories following catastrophic events (Sides, 2015). The anti-legalization campaign periodically argues that states with medical marijuana laws see increases in youth usage rates. Lynne-Landsman, et al. (2013) found that states with medical marijuana laws did not have measurably significant increases in youth usage rates in the few years following medical legalization. Hasin, et al. (2015) adds context to Lynne-Landsman, et al.’s (2013) findings, suggesting that adolescent use is higher in states with legal medical marijuana. Thus, the relationship between medical marijuana legalization and impacts on youth usage rates is not currently known with any exactitude. Thus, the present study seek to investigate the ethical and legal implications of the use of marijuana for clinical purposes

Statement of the Problem

Marijuana use in the Nigeria society has become an issue of serious concern and constitutes one of the most important risks taking behavior among young adult. Despite worldwide concern and education about cannabis use, many only have limited awareness of their adverse consequences (Eneh, 2004).

Cannabis has been used to reduce nausea and vomiting in chemotherapy and people with HIV/AIDS, and to treat pain and muscle spasticity (Borgelt, Franson, Nussbaum &Wang, 2013). According to Borgelt and colleagues, (2013) Safety concerns regarding cannabis include the increased risk of developing schizophrenia with adolescent use, impairments in memory and cognition, accidental pediatric ingestions, and lack of safety packaging for medical cannabis formulations.

Similarly, Gordon, Conley, and Gordon, (2013) reported that exposure to marijuana had biologically-based physical, mental, behavioral and social health consequences and was associated with diseases of the liver (particularly with co-existing hepatitis C), lungs, heart, and vasculature.

Numerous studies have been conducted (e.g Eneh, 2004; Borgelt, Franson, Nussbaum &Wang, 2013; Gordon, Conley, & Gordon, 2013) to unravel the etiological complexities of cannabis use in an attempt to search for effective prevention programs. However, it is evident from studies done that a variety of factors account for frequent use of cannabis in our society. Some of these factors include family and peer-group influence, exposure to mass media content, and low level of self-esteem. The present study intends to understand some of the ethical and legal implications of the use of marijuana approved for clinical purposes.

Aims and Objectives

1. To examine the legal framework governing the use of medical Marijuana
2. To critically examine the social impact assessment and marijuana policy

Research Methodology 

The methodology of this research is mainly doctrinal. We applied the ordering analysis of the legal structure, legal framework and case law to establish our objective. This we did by extensive survey of legal literature, even when we did not undertake any form of field work. We however undertook descriptive analysis, interpretation and systemization of legal norms or doctrines. We gave commentaries on the philosophical questions underpinning the research, including the nature or characteristics of the laws themselves. The materials used are sourced from primary and secondary sources. The primary resource materials used in this research include relevant legislation on the subject matter, rules and regulations made pursuant to the relevant legislation.

It will be impossible to undertake a study of this nature, without the complement of previous research works in this field. The secondary source of data used in this research, includes relevant published text books on the subject. Articles, periodicals, magazines, journals, seminar/workshop papers and sundry national and international written materials are utilized in coming to some of the conclusions in this research. We engaged books or other written source materials on the research. Basically, we looked for available source materials in the subject area of research and examined, appraised, critiqued, evaluated, analysed, and used the information thereof as a basis for our recommendations for decision making, enactment of laws and rules and regulations. Other relevant materials, including those from the internet and electronic sources  are deployed in the research.

Significance of the study

The study will equally add to the existing body of knowledge on the subject marijuana legalization, rules and policy. Students undergoing research work similar to the present study who may wish to use this work as a reference material or a spring board for their own work will find this work really useful.

FOOTNOTES

[1] 25 Booth, M., Cannabis: A History (London, 2003), p. 292

[2] Control and enforcement Part B–Authority to control; standards of controlled substances §812. [also known as Controlled Substances Act, 21 United States Code § 812(b)(1), 1970].

 

[3] Swift A. Support for legal marijuana use up to 60% in U.S. Oct 19, 2016

[4] Quinnipiac University. Allow marijuana for vets with PTSD, U.S. voters say 10-1, Quinnipiac University national poll finds; slim majority say legalize marijuana in general. Jun 6, 2016

[5] Adler JN, Colbert JA. Medicinal use of marijuana–polling results. N Engl J Med. 2013;368:e30

[6] food and Drug Administration. FDA and marijuana. Jul 7, 2016

[7] The National Drug Law Enforcement Agency Act, as amended by the National Drug Law Enforcement Agency (Amendment) Decree 1990 (section 3 (1))

A critical appraisal of divorce under Nigerian law; issues and challenges

ABSTRACT

The study examined A critical appraisal of divorce under Nigerian law; issues and challenges It focused on Nigeria legal and cultural system.

Efforts have been made in this case review to appraise the position of law in Nigeria in relation to the dissolution of marriage under the Customary Law which is often taken for granted simply because it is not a statutory marriage that needed to comply with any of the grounds stipulated

under the Matrimonial Causes Act. The law is clear that dissolution of marriage under the customary law equally requires the order of court to have it terminated and not by mere affidavit or personal verdict by the parties involved. Compliance with the provision of the law should be the yardstick for a proper dissolution of marriage.

The study focused on; examining the laws regulating dissolution of marriage. exploring the causes of divorce under the grounds for divorce in the Matrimonial Causes Act (MCA). determining the effects of divorce on the spouses, children and society at large. proposing modifications necessary in the laws regulating divorce and marriage. proposing mechanisms likely to curb the crippling effects of divorce on those affected.

The study revealed that; There are no provisions in the Matrimonial Causes Act considering obvious conflict situations. People should respect the institution of customary marriage and approach competent customary court when they find it expedient to dissolve such marriages. Divorce should not always be the best option for couples for the sake of their children. Family of the couple should always help the two different individuals foresee the future failure of the couple children once divorce is allowed there two adult couples.

The study concluded that divorce have a negative incidence and place in the Nigerian legal and cultural system and should not be seen as the best option.

The study suggested that: If serious marital discord arises the spouses should have the opportunity to attempt reconciliation with the assistance of a Marriage Reconciliatory Board. If reconciliation fails, it is evident that the marriage has broken down and the court should pronounce the divorce by decree. The establishment of specific matters as evidence or indication for the marriage. Basic arid elementary knowledge of marriages in Nigeria, attributes, essential ingredients, rights and duties must be included in the National Curriculum for both secondary and tertiary institutions. There must be other informal forms of educating the public on the marriages and consequences which will be directed towards other members of the public outside school setting. Public enlightenment campaigns, educational programmes carried out by government and non-governmental organisations.

CHAPTER ONE

BACKGROUND TO STUDY

The institution of marriage has been in practice from time immemorial in countries all over the world. The landmark case of [1]Hyde v Hyde gave the standard definition to marriage; as the [2]‘voluntary union of a man and woman to the exclusion of all others’.  Consequently, the sanctity of marriage is a well-accepted principle in the world community at large, its significance cannot be over emphasized because marriage is the root of the family and of society. This is why it is one of the few institutions universally and culturally recognized. The law in every country also recognizes marriage as a legal societal contract and as such recognizes duties, rights and obligations of both parties to one another in order to sustain the marriage. For example, child bearing and rearing is a right reserved solely for married couples because of the responsibilities involved.  Marriage, also termed ‘matrimony’ or ‘wedlock’ has not only a social foundation but also a religious one as documented in various books the bible and in the Quran. For instance; in [3]Genesis 2:24 ‘’Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh’’. This is why it has been regarded by all tribes and religion as sacrosanct and sacred in nature and Nigeria is no exception.  In Nigeria, marriage is celebrated under two ways; Customary (traditional/Islamic) or Statutory. There are distinct differences in both marriages, from its celebration, to accepted doctrines. For example; statutory marriages do not allow a man to marry more than more wife i.e. polygamous marriage but it is not prohibited in customary marriages. Consequently, the laws governing statutory marriage and its dissolution differ from customary laws governing divorce and as such this project will be concerned with the causes and the effects thereof of the dissolution of marriages under statutes.

Divorce is fundamentally explained as the legal dissolution of marriage by a competent court of law to the effect that there is a severance of the bond of the husband and wife. In spite of marriage being designed by God to last till eternity, intolerable situations may occur between spouses which lead to the irretrievable breakdown of the marriage. Nevertheless, as will be discussed in this project; the law in its regulation of dissolution of marriages has implemented a span for a petition of divorce to be brought to court so as to deter couples from rushing in and out of marriages carelessly.

Although the sociological and psychological effects of divorce vary from the type of marriages and their distinct features, there are still grave effects that the stain of divorce leaves on not only the spouses but their children and the society at large. The consequences that arise out of the divorce are brushed over because they are limited to only the effects it has on the spouses, however there also becomes the dislike for the institution of marriage by the youth in the society during the process of divorce in unfortunate circumstances.

The causes of divorce in a marriage vary from infidelity, violence, sodomy etc. to peculiar intolerable circumstances which cause a spouse unable to continue in the marriage. This is why Section 15 of the MCA has demarcated the grounds for a marriage to be dissolved. Dissolving or bringing to and end a statutory marriage ought not to give room to any controversy as it appears on the face of the law that the grounds for divorce are clearly spelt out by the statute. Yet, there still remains ambiguities in the terms used in the interpretation of a cause of the divorce and the processes to attaining damages on that ground. The subject matter of this research is to investigate the nature and conditions to disintegration of marriage, the aftermath of the process on the spouses, the children and society at large as well as possible solutions.  The dynamic nature of humans continue to pose various situations which can lead to the breakdown of a marriage, the scope of each ground is in dire need of reform in order to encompass varying causes which are more common today but can still be brought to a court under a ground for divorce in a statutory marriage.

STATEMENT OF PROBLEM

The rate of divorce in Nigeria continues to escalate over the years, thereby watering down the reverence and sanctity of marriage. The changing nature of humans as well as society continues to pose married couples with challenges in their day-to-day activities. The grounds of divorce stated in the MCA would do more good than bad to the process of dissolution of marriage if its terms are broadened. For example; in the world today, husbands, through peculiar actions have taken the word ‘cruelty’ to a more advanced meaning. Circumstances though not directly related to the marriage but having severe impact on the peaceful existence of the marriage need to be given more weight to suffice as a ground for divorce. Likewise other mechanisms which have proven helpful can be used to curb the rate of divorce; such as family dispute arbitration and made mandatory for marriages under two years so as to prolong marriages in Nigeria.

OBJECTIVES OF THE STUDY

1. To examine the laws regulating dissolution of marriage.
2. To explore the causes of divorce under the grounds for divorce in the Matrimonial Causes Act (MCA).
3. To determine the effects of divorce on the spouses, children and society at large.
4. To propose modifications necessary in the laws regulating divorce and marriage.
5. To propose mechanisms likely to curb the crippling effects of divorce on those affected.

RESEARCH QUESTIONS

1. What are the laws regulating dissolution of marriage?
2. What are the causes for divorce under the grounds for divorce in the MCA?
3. What are the effects of divorce on the spouses, children and society at large?
4. What are the modifications necessary in the laws regulating dissolution of marriage?
5. What mechanisms can be implemented to curb the effects of divorce on those affected?

   SIGNIFICANCE OF THE STUDY

The institution of marriage is a deeply rooted societal institution recognized and reverenced by all members of the society. Divorce in a family affects not only the emotional and psychological well-being of spouses but also on the children of the marriage, relatives and third parties who have interests in the marriage. The significance of this study is on the dissolution of statutory marriages in Nigeria as it examines the stipulated grounds and effects thereof. Hence, the potential part of the study is founded on the idea that the causes of divorce in a society envisaged under the grounds of divorce in the Matrimonial Causes Act need to be clearly analyzed and the scope of grounds broadened. The effects that divorce has on the society, children in the marriage, as well as the spouses will also be investigated so as to deter the rushing in and out of marriages.

RESEARCH METHODOLOGY

The approach to be used in this research is library/desk approach. This research involves making use of primary sources such as judicial decisions, statutes and information obtained from the internet; secondary sources written by various authors such as, textbooks, journals, articles and dictionaries.

DEFINITION OF OPERATIONAL WORDS

• Marriage – Black’s Law Dictionary[4] defines marriage as the legal union of a couple as husband and wife. It the voluntary union of a man and a woman recognized by law as binding them to become husband and wife.
• Divorce- This is the process of dissolving a marriage i.e. bringing the marriage to an end. Divorce or dissolution of marriage, according to Wikipedia[5] is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties involved (unlike annulment which declares the marriage null and void).
• Monogamous marriage- is the union of one man and one woman to the exclusion of all others and this is the statutory adequacy of a marriage. Hyde v Hyde[6]
• Statutory marriage- is marriage governed under the rules of statute as opposed to customary/traditional marriage which is governed by customs and norms of the society.
• Matrimonial Causes Act- are the laws regulating marriage in Nigeria since 1970.

LIMITATION OF THE STUDY

This project will be confronted with some limitations ranging from difficulty in getting materials for a comprehensive research to limited time for elaborate research on the topic that combines a aspects of law since it is impossible for all data on a subject to be wholly acquired as well as the exploration on all its facets.

CHAPTER ONE

INTRODUCTION

 

1.1 Background to the Study

 

The term right refers to the freedom and liberties of human beings to live with dignity. All human beings are born free and equal in dignity and rights[1]. Women‘s right as a term refers to the freedoms inherently possessed by women and girls of all ages, which may be institutionalized, ignored or illicitly suppressed by law, custom and behavior in a particular society[2] . These liberties are grouped together and differentiated from broader notions of human rights because they often differ from the freedoms inherently possessed by or recognized for the male folk. Although the activism surrounding this issue claims an inherent historical and traditional prejudice against the exercise of rights by women, but nonetheless, the emergence of municipal, regional and international laws over time have indeed relegated this claim.

 

Women   rights   are   protected   under   a   wide   range   of   international   and   regional   instruments including   declaration   and   covenants.   Human   rights   declarations   represent   a   commitment   by signatory countries to meet stated human rights standards. Covenants, also known as treaties or conventions, are international law agreements entered into by governments. Once covenants or treaties are ratified they become part of domestic law[3]

 

The patterns of inheritance and succession,[4]particularly under intestate estate under customary law in Nigeria, have almost as many variations as there are ethnic groups in the country, and many of the variations are discriminatory in practice. The law of succession and inheritance reflects Nigeria’s plural legal system. Indigenous customary law developed rules of inheritance for intestacy through the traditional canon of descent, as adapted over the years to changes in the society and the rule of natural justice as applied by the courts. Fortunately, nongovernmental organizations have been active in attempting to rectify the problems of discrimination.

 

Suffix to say that  in  Yoruba land for instances , the distribution of an estate of a deceased person who dies without a valid Will is per stripe; i.e. by the number of wives that the deceased had and not by the number of children[5].  Similarly, in the southern part of Nigerian like Calabar in Crosss River state, the eldest surviving male member of the deceased person succeeds as the head of the family and inherits the deceased estate. Also among the Fulani, the eldest son inherits his deceased father’s cattle, the main asset in those days, out of which he makes presents of some of them to his younger brothers according to their needs. Finally under the Bini custom, the right to succession of the entire estate belongs exclusively to the eldest son of a deceased person who acts as a sort of trustee for the other children[6].

 

It is against this backdrop that the present study seeks to investigate an appraisal of the inheritance rights of women in Nigeria under the Act and the various customs in Nigeria

 

1.2 Statement of the Problem

Women constitute a major group of human kind who are particularly vulnerable to exploitation. Despite statutory provisions and judicial authorities upholding women‘s rights as was done in the cases of Mojekwu v Mojekwu8 and Mojekwu v Ejikeme[7] , the reality is that women are still denied equal opportunity to inherit property with men. Some women still lose out completely from their husband‘s estate, due to ignorance and strict application and observance of repugnant customary practices, which prejudice against the status of women in the society and reduce them to mere second class citizens after men and cuts their bargaining power in economic, social and political affairs in a given place and at a given time. They are also usually scared to explore the option of litigation in some other cases. This is perhaps because of the phobia associated with being a litigant in a court of law in Nigeria resulting from illiteracy or lack of enlightenment as regards their fundamental rights and the cost of financing the case. In order to have a healthy and happy society in nigeria, particular attention has to be paid to protect the rights of women to own and inherit property which happens to be an ongoing struggle begging for a wider platform for the consideration of options and chances available to protect the property rights of women in Nigeria  as has been set out to do in this thesis.

 

• Aims and Objectives of the Study

The main thrust of this study is to on  appraisal of the inheritance rights of women in Nigeria under the Act and the various customs in Nigeria

The study were guided by the following specific objectives;

 

1. To critically appraise the various laws on inheritance rights of women in Nigeria
2. To investigate whether the prevailing inheritance practices in Nigeria significantly alienate women from assets of their deceased husband.
3. To analyze the challenges, if any, associated with the right of women in relation to rights of inheritance

 

1.4 Research Questions

The issue of deliberation is “on  appraisal of the inheritance rights of women in Nigeria under the Act and the various customs in Nigeria “.In look at this all encompassing topic certain addendum or follow up questions will be asked in order to fully explore the potentials of the study.

The study are guided by the following questions;

 

1. What the various laws on inheritance rights of women in Nigeria?
2. What are the prevailing inheritance practices in Nigeria significantly alienate women from assets of their deceased husband?
3. What are the challenges in enforcing the right of women in relation to rights of inheritance in Nigeria ?

 

 

1.5 Significance of Study

This study is therefore important as it outcome will be useful to policy makers and implementers of development programmes in Nigeria. It could equally be adapted in similar society to tackle the menace of inequality among women and men. It is expected that students and researchers in development related discipline will find the work invaluable. The work is also hoped to accentuate valuable insight on the preparation of Enugu State in terms of attaining the Millennium Development Goals. Above all, the findings of the study will ultimately help

 

 

1.6 Scope and Limitations of the Study

This study will deal primarily with inheritance; its history, the customary laws practices of the major ethnic groups of Nigeria which are: Igbo, Yoruba, Bini, Esan, Urhobo, Islamic law and Hausa inheritance rights of women under the Wills Act of 1832 & the relevant Wills Law of selected states. It will also examine the reasons why these discriminatory practices are still in existence despite the various laws already in place. Also, the human rights implications of discrimination against women as regards inheritance rights will be considered and it will point to the effect this worrisome trend is having on the nation’s economy and her reputation in the global world view.

 

1.7 Research Methodology

This  study adopted empirical approach and a little of analytical, descriptive and prescriptive approach in addressing the problem of the research. It involves analysis of primary sources which include statutory laws and case laws, including Bills proposed to be passed into law which will be very relevant to this research. The Secondary sources which contain opinion of writers in textbooks, published and unpublished papers, research publications, articles on the internet, theses, reports, and law reviews will be looked at. Papers presented at workshops, seminars and conferences will be consulted. These diverse sources sufficiently capture the state of the rights of women, particularly the aspect of property ownership and possession and give in-depth analysis of the strengths and weaknesses of property rights of women.

1.8 Definition Of Term

For the purpose of clarity, it is important to define some key words in the topic of today’s lecture.

• Women– who is a woman? It is obvious that a woman is a person of female gender but at what age does a female person become a woman or age does not have any role to play in defining who a woman is? Longman Dictionary states that a woman is “an adult female person  ”. This implies that an underage female child is not a woman. Otaluka, in her article “Protection of Women under the Law” defines a woman as “…an adult female human being physically weaker than the man, exhibiting feminine characteristics quite distinctive from the opposite sex [6] ”. The two definitions have clearly shown that a woman is not only a human being of opposite sex different from a man but also that she is a grown-up female person. In Nigeria, any person of 18 years of age is considered to be an adult. Even though a female person below 18 years is not regarded as a woman, for the purpose of this lecture, the word “woman” would be used in a general sense. In that case, woman is used here to refer generally to persons of female gender, irrespective of age or marital status.
• Inheritance– Longman Dictionary defines inheritance this way, “money, property etc that you receive from someone who has died [7] ”. Another source defines it thus “the right of an heir to succeed to property on the death of an ancestor [8] ”. Another word that is closely connected to inheritance is “succession”. Law Dictionary defines succession as “The devolution of title to property under the law of descent and distribution [9] ”. In legal texts, the use of the word “succession” to denote a situation where property of a deceased person passes to her heirs seems to features more frequently than “inheritance”. However, in this lecture, the two words may be used interchangeably.
• Law– Longman Dictionary defines Law thus, “a rule that people in a particular country or area must obey… ”. Another source puts it this way, “…the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like that is used to govern a society and to control the behaviour of its members, so law is a formal mechanism of social control ”. Law is one of the words that do not command a universally acceptable definition. It is defined differently by different scholars. But on a general note, it can be defined as a rule of behaviour or conduct laid down by a constituted authority in a particular society. A law may comprise written codes, unwritten customs and traditions, pronouncements of rulers and judicial decisions. In Africa, for instance, despite the fact that former colonial masters introduced foreign legal systems to territories once colonised by them, the African people still hold strong allegiance to their unwritten native customs and traditions. Therefore, in most African countries, if not all, Customary law is a source of law, along other sources. Legal systems in African states are pluralistic; there exists such laws as the statutory law, Customary law and religious law e.g. Sharia legal system. All these laws affect the subject-matter under consideration one way or the other.
• Women’s Rights: These are the rights and entitlements claimed for women worldwide.
• Culture: The customs, arts, social institutions, etc. of a particular group or people
• Custom: Generally accepted and long established way of behaving or doing things

[1] Article 1, Universal Declaration of Human Rights by the United Nations General Assembly (1948)

[2] Women‟s right, definition in Webster’s New World College Dictionary,4th Edition, Wiley Publishing, Inc., Cleveland, Ohio, 2010 on <http://www.yourdictionary.com/women-s-rights>, Accessed on the 15th August, 2014. Used by arrangement with John Wiley & Sons, Inc.

[3] 6 Ogugua V.C. I., Op.cit at 84

[4] 2 See T.O. Elias: Nigerian Land Law (1971) 4 th edn., Sweet & Maxwell London, chapter 8

[5] Onuoha R.A., “Discriminatory Property Inheritance Under Customary Law in Nigeria: NGOs to the Rescue” The International Journal of Not-for-Profit Law, (2008), Vol.10, Issue 2

[6] Okeaya-Inneh K.S., Benin Native law and Custom at a Glance, (Benin City: Gift-prints Associate; 2007)

[7] [2000] 5 NWLR 402

LEGAL APPRAISAL OF EARLY MARRIAGE AND ITS EFFECT ON FEMALE ACADEMIC PERFORMANCE IN NORTHERN NIGERIA

Summary

Although the Nigerian government has tried to stamp out child marriage with the enactment of the Child Rights Act of 2003, the practice of child marriage is still prevalent among the Hausa-Fulani tribe (predominantly Muslim) who occupy Northern Nigeria and where Shari’a law is in force. While the Child Rights Act has sharp teeth, it has no bite because each state in Nigeria has to enact the Act under its own state laws before it is enforceable. This means that a social evil such as child marriage can be practised in a state that is yet to pass the Child Rights Act as domestic law. The article presents arguments outlining the reluctance of some of Nigeria’s northern states to enact the Act. The author maintains that the right of the girl child in relation to marriage is not adequately protected, due to Part 1 Section 61 of the 1999 Constitution of the Federal Republic of Nigeria. As a result, the article proposes three steps to ensure the legal protection of a girl child against child marriage: Firstly, Part 1 Section 61 of the 1999 Constitution should be modified; secondly, there should be a uniform age set for a child to marry in all of Nigeria’s legislation that deals with children; thirdly, while pressure should be put on all Nigerian states which are yet to domesticate the Child Rights Act, there is a need for a new Act (Prohibition of Child Marriage Act) which, if enacted, should automatically apply to all states in Nigeria in order to protect the girl child.

 

THE LEGAL APPRAISAL OF INTERNET DEFAMATION UNDER NIGERIAN LAW

CHAPTER ONE/GENERAL INTRODUCTION

1.1 Background to the Study

This is information age. Just as the development of the printing press revolutionized media profession, the internet is doing even more. In terms of both access and reach, the internet has more than revolutionized the media; it has come to define how humans live. We meet new friends on Facebook, reconnect old and lost relationships, follow up the thoughts of distance mentors on twitter, catch up with professional colleagues on LinkedIn, watch century old videos and new ones on YouTube, read the newspapers free of charge, keep our diary on blog, and disseminate information—no matter how minute, over the cyberspace. Even routine activities such as shopping and sorting our health challenges are done on the internet. Indeed, the Internet has so invaded our lives today that we could barely imagine how we lived without it! Intriguingly, “a world without text messages, Twitter, Skype, or Facebook is difficult to imagine today, though these internet-based inventions have only been a part of mass culture in the past decade.”
Of course, the internet is not the first invention to change human relations significantly, what cannot be denied is that its effect is much more pervasive than any other inventions have been. Its invasiveness and pervasiveness have important impacts not just on how we relate as already noted, but also on the rules governing our relationships—rules which are both moral and legal; the interest of this work, however, are the legal rules.
Law is that element which binds members of a community together in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions.
While the law has developed over the years to accommodate new realities, its pace of development in relation to the internet phenomenon is both intriguing and creative, welcoming in the process new and rather interesting competition for superiority of ideas.
Because of its capacity to transmit data across borders, the internet threatens, and somewhat compromises the law as we have always understood it. The threat goes to the root of every country’s legal system. For instance, if a person publishes a defamatory material on a blog hosted in California, United States, while he lives in London and the plaintiff lives in the Gambia; assuming the website is viewed by a larger audience in Ghana and only a few in Togo. Which state’s law and court should have the best claim to deal with this matter or are we to say that every state has equal right to legislate and adjudicate on matters arising from this transaction? The latter proposition will no doubt create chaos!
Indeed, any court called upon to decide the issue is faced first with questions about its own capacity; it will ponder over which law to apply and constantly bears in mind how enforceable whatever decision it reaches will be, even beyond its own borders.
The instance above points to conflict of laws issues, at the heart of which are jurisdiction, applicable law and enforcement capacity of foreign judgements. How would a court faced with the hypothetical case above sort this issue and ensure that justiceis done? Is it enough to claim jurisdiction by mere fact of publication within its jurisdiction? In which case, any court anywhere the blog is accessed has jurisdiction over the matter. Won’t this produce injustice or encourage forum shopping which the conflict of laws tries to avoid?
On the other hand are questions of rule of law. If by mere publication on the internet, a person is made liable under every law of every state where the publication is viewed, what do we say then about the requirements of rule of law that laws should not be secret and that legal consequences must be foreseeable? On the other hand, are we to assume that online publishers are deemed to know all the laws of all the states where their materials are viewed?
Uta Kohl puts the situation thus:
In legal terms the global nature of the Internet is first and foremost problematic. The reason is simple. Law and regulation have been organised on the assumption that activities are on the whole geographically delimited: the right to regulate conduct is shared out between geographically defined States on a predominantly geographic basis – each State can regulate what occurs within its territory. Location is the criterion for the sharing of activities. This basic allocation rule works well when conduct is generally located within a single territory. Then it is clear what belongs to whom. Yet online activity is not by default located in a single territory. Prima facie, a website can be accessed everywhere. Does this mean that every State can regulate every site and, if not, which State can and which State cannot? Where is the site located for the purposes of establishing which State can assert a regulatory right? Although regulators have for years struggled with rising transnationality, in the form of global trade and transnational corporations, the Internet presents an entirely new dimension to the problem of squeezing transnational activity into the national legal straitjacket.
The questions often asked are, are we to transpose the principles of lawexiting within terrestrial places before the internet to the cyberspace or should the cyberspace have its own regulatory framework? Johnson and Post, who were among the first to answer this question, argued for a new regulatory framework. These authors came to this conclusion precisely on the argument that any country could assert jurisdiction and this would not augur well for the law:
Assertions of law-making authorities over Net activities on the ground that those activities constitute ‘entry into’ the physical jurisdiction can just as easily be made by any territorially-based authority. If Minnesota law applies to gambling operations conducted on the World Wide Web because such operations foreseeably affect Minnesota residents, so, too, must the law of any physical jurisdiction from which those operations can be accessed.
Araromi argued along this line too. To him:
The whole nations of the world should adopt a regular internet law that may take care of transactions in the cyber space, since the internet has no sitting place.
To these thoughts, the position is that no state has a more compelling claim than another state to subject online activities exclusively to its laws.
Compelling and logical as these arguments are, one should pause to ask whether the courts in reality have followedthem, or whether they have gone in the opposite direction. While acknowledging its value, the court In People of Vacco v. Lipsitz, expressly notes that:
Although Internet transactions might appear to pose novel jurisdictional issues, traditional jurisdictional standards have proved to be sufficient to resolve all civil Internet jurisdictional issues raised to date, refuting the view of [those who] . . . believe a new body of jurisprudence is needed.
How has the law attained this? A perusal of the available authorities shows that the court have tended to treat each case as it came, drawing distinctions between different cases in the online context where necessary and adapting existing rules to this ‘novel’ platform.
In the United States for instance, courts have drawn distinctions between websites that are intentionally targeted at the State or could be presumed to be so targeted and sites that are not so targeted. Distinctions have also been drawn between passive and interactive websites, between commercial and non-commercial websites, between parties who had other offline contacts with the State and those who had not, and between websites that happen to have an effect in the State and sites which were directed at, and known to cause harm in, the State.
In Toys ‘R’ Us Inc. v. Step Two SA, for instance, the interactive nature of the commercial website of a Spanish company was held to be by itself, and in the absence of actual interactions with forum residents, insufficient to expose the company to the adjudicative jurisdiction of the New Jersey court. As the court succinctly noted, the two sales to an employee and the attorney of the plaintiff company ‘presented only inconclusive circumstantial evidence to suggest that Step Two targeted its website to New Jersey residents.’
We really cannot fully grasp the implications of the above without a good understanding of the history and defining structure of the internet. We equally need to understand the extant laws on defamation before the internet and see how the courts have treated defamation since the emergence of the internet. The latter should lead us into inquiries about new media, and the nexus between defamation and the various themes of conflict of laws—i.e., choice of laws, jurisdiction and enforcement of foreign judgement. These form the core of this study.
Suffice to state at this point that the court has, rather than pursue a drastic approach to the ‘novel’ internet by totally overhauling the applicable laws, taken a posture that tend to adapt the new development within the existing legal template. We shall return to this point of discussion later in this work.

1.2 Statement of the Problems

Until the Nigerian Evidence Act 2011was passed into law, which is about a decade after the internet went commercial globally, Nigerian law and courts were reluctant about taking cognizance of internet-generated evidence. In fact, cases involving internet matters were hardly brought before our courts because of the uncertainty of the law. With respect to defamation, things have not significantly changed today.
In the build up to the 2015 election, African Independent Television (AIT), a member of Daar Communication Plc. published documentaries about some All Progressive Congress party leaders. These documentaries, which were alleged to have defamatory content, went viral on the internet, with various persons and organizations republishing it.
By the extant defamation law, each republication of a defamatory material gives a new cause of action. However, when a chieftain of the party brought action in defamation to the court, only Daar Communication was sued probably because of the perceived problematic intricacies which tag with internet cases. These problematic intricacies which border on how to establish jurisdiction in online defamation cases, how to determine the choice of law that will apply to online defamation cases and how a judgment secured from online cases can be recognized and/or enforced, are the problems which this research seeks to solve.
The real challenge is not actually in explaining how the above issues are resolved, rather, it is in evolving clear and certain rules that will produce certainty, clarity and uniformity in the process of resolving legal issues relating to online matters. This, in fact, is the main problem that the research attempts to solve.

PROVOCATION AS A DEFENCE TO CRIMINAL LIABILITY: THE NIGERIAN PERSPECTIVE

CHAPTER ONE/INTRODUCTION

Background of Study

 

In Nigeria any act of killing which is unlawful is a criminal act. Such acts under certain offences are referred to as unlawful homicide, which includes suicide, infanticide, murder, manslaughter. Also, any intention to kill or cause grievous harm by a person to another and which eventually result in death, is an unlawful killing which is usually termed

“murder”.

The onus of proving the guilt of an accused is on the person who allege for the  commission of the offence .[1] An accused person on the other hand is entitled to defend himself of the charge leveled against him in which provocation is one of such defences. The defence of provocation is raised by an accused mostly in homicide cases in relation to murder and manslaughter. However, certain killings do not always amount to murder. Section 317 of the Criminal Code Act[2] grievous harm, while voluntary manslaughter occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter due to provocation.

The defence of provocation may also arise where a person who does not intend to kill, inflict a bodily harm due to sudden passion involving loss of self control by reason of provocation. The intricate nature of the defence has brought about so much controversy. It is controversial because the court is often eager to find what amount to provocation from the accused person.

Accordingly, provocation under Section 318 of the Criminal Code Act[3] is to the effect that a person is guilty of manslaughter only, if he unlawfully kills another in circumstances which would otherwise have constituted murder so far it is done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. The Supreme Court in the case of Obaji v State[4] held that section 318 of the Criminal Code Act[5] should be read alongside with section 283 of the Criminal Code Act[6]. Thus, before the defence of provocation can avail a person, the test to be applied is to see what effect the act or series of acts of the deceased would have on a reasonable man, so that an unusually excitable person will not be able to rely on it as a defence to the charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

1.2     Statement of Problem

Basically, the controversial nature of the defence appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Therefore, it is the assessment of their culpability that determines whether a person should be held responsible for their actions as this is carried out by reference to a reasonable man’s test,  that is a universal  standard to determine whether an ordinary person would have been so provoked , if found in similar circumstances as the defendant.  If the majority view of social behavior would be that when provoked, it would be acceptable to respond verbally and if the provocation persists, then to walk away; that will set the threshold for the defence.

1.3 Research Question

The defence of provocation elevates the emotion of anger over other emotions such as, fear, despair, compassion and empathy, it is questionable whether, in moral terms, a killing is necessarily less culpable when performed in anger as a result of provocation. Indeed, there is an argument that it is morally unsustainable for anger and sudden loss of self control to found a form of defence to murder.

Thus, this work will raise several issues for determination including: to

1. What extent does heat of passion lasts,
2. Must the act be done on the person who cause the provocation;
3. Can a wrongful act or insult provoke a person?; this research will also answer the question base on the circumstances under which the pleas of provocation would be successful as well as the fundamental element of the defence of provocation.

 

1.4 Significance of the Study

 

The law of provocation has been the subject of much development both

locally and in other common law jurisdictions. Although, the paper draws

largely upon the doctrine of provocation as it operates in Nigeria. It’s also

looks into the exact nature of provocation and those factors which constitute its defence as well as the relevance of the characteristics of the offer and the proportionality requirement in the objective test of the defence.

It also considers whether certain triggering conditions must be before an offenders’ characteristics may be considered for the purpose of assessing the sting of the provocative conduct or insult and the proper approach of the court faced with such alleged characteristics. It elucidates grounds which murder can be mitigated to manslaughter and also examines who bears the burden of proof for provocation.

It is hoped that the analysis offered has relevance to all systems where similar defence are recognized and can make a useful contribution to the continuing moral debate that the partial defences to murder generate as well as to be able to appraise the disposition of the court towards the defence.

 

1.5 Methodology of the Study

 

This research is both analytical and argumentative in nature. It will adopt various qualitative research methods in order to provide the required information. Research materials such as textbooks, articles, internet, magazines, journals, and judicial decision in Nigeria and other jurisdiction. Hence, this research is library based.

1.6 Scope of the Study

 

The study covers the concept of provocation as a mitigating factor or as a defence in homicide and its enforcement by the judiciary in Nigeria. The researcher uses judicial authorities, statutory provisions, and opinion of text writers (jurists). With a view to highlighting the concept of provocation in Nigeria. However, reference is made to other legal system on a comparative basis

 

1.7 Objectives of the Study

 

In view of examining the term provocation this work shall attempt to achieve the following goals:

(a)     To ensure a thorough analysis of the legal framework for provocation in Nigeria law.

(b)     To examine the nature of the defence as well as its elements.

(c)      To examine the burden of proof, the effect, adequacy and limitation of the defence and to suggest or make recommendations on the defence if there is any

(d)     to examine why provocation laws are very difficult to enforce.

 

1.8 Literature Review

 

Most unlawful homicide which are not classified as murder are manslaughter. There are two kinds of manslaughter, voluntary and involuntary. In which the former has the presence of mens rea, but the mitigating circumstances only serve as a partial defence.

The quest for a better and easier enforcement of homicide laws has drawn the attention of writers to the subject at one time or the other. However, writers have written on the doctrine of provocation and its nature. Writers also make use of case laws (both Nigeria and non Nigerians), the reason for this is to appraise the disposition of the court towards the defence. The provisions of the vital codes, (penal code and criminal code) are also highlighted. Those provisions represent the main laws governing criminal liability in Nigeria. Provocation was defined by Delvin J. in R. v Duffy[7] as an act done by the dead man to the accused which could cause, in any reasonable man, and actually causes in the accused a sudden and temporary loss of self-control tendering the accused so subjected to passion as to make him or her for the moment not to be a master of his mind.

The homicide Act 1957 section 3 gives a partial definition of this, where on a change of under there is evidence on which the injury can find that the person charged was provoked (whether by thing done or by things said or by both together) to loose his self- control, the question whether the provocation was enough to make a reasonable man to do as he did, shall be left to be determined by the jury. And in determining that question by the jury shall take into account everything both done and said according to the effect which in their opinion it would have had on a reasonable man

 

Okonkwo and Naish in their book[8] provide a comprehensive and authoritative coverage of the concept. Smith and Hogan[9] in their book examined all aspects of criminal law and criminal liability and exact defence. And they agree with Lord Delvin’s definition of provocation.

Going further into their writings, Smith and Hogan on provocation and the mode of resentment submitted that the mode of resentment must bear a

reasonable relationship to the provision if the offence is to be reduced to manslaughter.[10]

 

However, this position was on longer acceptable as Lord Diplock said it would now be wrong to the jury “fist might be answered with fist, but now with a deadly weapon”, because of fists were answered with a deadly weapon, such a direction would take out of the jury’s hands a question which is exclusively for them and on which their opinion is decisive. All these were done with illustration from decided cases. L.B. Curzon,[11] in his book examined all aspects of criminal law and criminal responsibility and even defences. Granville Williams’2[12] define crime to be legal wrong and also consider crime as a conduct which will include a formal and solemn pronouncement of the moral condemnation of the community”. Yahaya Abubakar[13] survey the technical details of the defence of provocation and  relation to self defence, adultery, defence are presented with a masterly grasps of the field of criminal law in Nigeria. He sees the plea of provocation to be based on the loss of self control both actual and reasonable.

Card, Gross and Jones[14] tend to see provocation a little differently by writing that it is not a defence to any other change other than murder and not even attempted murder. They submit that in the defence of provocation, the provocative words or conduct need not come from the person killed. According to them, if a person accidentally killed someone other than the one who provoked him when aiming at the latter, he is only guilty of manslaughter. In examining the reasonable man’s test, they opine that it all comes down to answering two questions:

(i) would the reasonable man have lost his self control?

(ii) would a reasonable man have retaliated as the accused did?

 

Michael Jefferson[15] examines provocation from the provision of section 3 of the Homicide Act 1957. According to him, that section 3 is traditionally divided into two “limbs” for the purpose of exposition, the first limb is whether the accused was in fact provoked; the second limb is whether a reasonable person would have been provoked. He sees provocation as only a defence to murder, therefore, before the accused may rely on this defence, he must have intended to kill or commit serious bodily harm, the Acts places the question whether the provocation was enough to make a reasonable man do as he did before the jury, but does not change the definition of provocation except that nowadays the jury can take into accounts words as well as deeds. Also the enactment of section 3 had not affected the requirement of a sudden and temporary loss of self-control.

Andrew Ashworth’6[16] in his book examines the defence of provocation from the perspective of elements of excuse and element of justification respectively in provocation. Ashworth admits that many legal systems allow it as a qualified defence to murder which reduces the crime to manslaughter or culpable homicide. He raises certain salient questions as to whether it shall ever be a complete defence, or, if not, how it differs from those condition which are admitted as complete defences.

Catherine Elliot and Frances Quinn[17], according to this author, since the Homicide Act 1957, provocation may be “by thin

[1] Section 36(5) CFRN 1999, this provision also state that provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

[2] CAP C.38 Laws of the Federation of Nigeria, 2004.

[3] CAP C. 38 Laws of the Federation of Nigeria, 2004

[4] (1965) I All NLR 269

[5] Ibid

[6] CAP C. 38 Laws of the Federation of Nigeria, 2004

 

[7] (1949) 1 All 932

[8] Okonkwo and Naish Criminal Law in Nigeria. 2nd Ed. (Ibadan; Spectrum Books Limited, 2005), p. 240 —250.

[9] Smith and Hogan Criminal law. 5th Ed. (United Kingdom, Continuum International, 1997), p.5.

 

[10] Smith and Hogan Criminal law. 10th Ed. (Lexis Nexus: London, 2002) p.11.

 

[11] L. B. Cruzon Criminal law 8th Ed. (London, Pitman Publishing 1997).

[12] Granville Williams. 2^nd  (London: Stevens and Sons Limited, London), p.11

[13] Yahaya, A. Muhammed, Student Handbook on the Defence of Provocation in Nigerian Criminal Law. 1st Ed. (Maiduguri, Ed-Linform Service, 2006), P. 36.

[14] Card, Gross and Jones, Criminal Law. Ist Ed. (Butterworths: London, 1995) p. 81 – 106.

[15] Michael Jefferson, Criminal Law 6th Ed. (Pearson Educational Ltd., 2003), p. 62 — 98.

 

[16] Andrew Ashworth, Principles of Criminal Law. 2nd Ed. (Clarendon Press: London, 1995), p. 225 — 229.

[17] Catherine Elliot and Frances Quinn Criminal law. 4th Ed. (England, Pearson Educational Limited, 2002) p. 61-72

A CRITICAL APPRAISAL OF LEGITIMACY AND LEGITIMATION UNDER NIGERIAN FAMILY LAWCHAPTER ONE

INTRODUCTION/Background 

The family is the smallest unit in the social structure of every society. It is accepted that the family is the basis of every human community and the family may be regarded as the nucleus of society.

Family law deals with the law regulating the legal relationship between spouses (i.e. husband and wife) the legal relationship between a  guardian or curator and the person who is subject to guardianship or curatorship. The term “family” does not lend itself to easy and precise definition. In one sense the family may be defined as including all persons with common ancestors. Under this wide connotation, the family may embrace a large body of persons related by blood to a common ancestor. The relationship may be traced through males, as in patrilineal societies or through females in matrimonial societies. The extended family, a concept which is prevalent in Africa may also be included in this wide definition of family. Green defines the extended family as: “…a group of closely related people, known by a common name and  consisting usually of a man and his wives and children, his son’s wives and  children and probably other near relations”.

The term “family” may still be given a much more restricted connotation. It may refer to a smaller group consisting of a household – the man, his wife, the children and probably the dependants who live with him. This is much closer to the concept of family in English law, which is restricted to the man, his wife and children. For the purpose of this study, the researcher will be treating family as a unit comprising the man, his wife or wives and the children. 

It is universally accepted that marriage, being a union of man and woman, involves two persons of opposite sex. Consequently, sex constitutes an essential determination of a marriage relationship. In  order to establish the existence of a valid marriage, it must be proved that the persons involved are man and woman.

Ordinarily, this seems a straight forward question; the issue has been complicated by the existence of hermaphrodites and pseudo – hermaphrodites and advances in medical science which have made sex change operations feasible. In the English case of Corbett V Corbett (1947) All ER 187, the petitioner and the respondents had gone through a marriage ceremony in September, 1963. The petitioner knew that the respondents had been registered at birth as a male and had in 1960 undergone an operation for the removal of the testes and created an artificial vagina, since the operation, the respondents had lived as a woman. In December 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively for a decree of nullity on the ground of either in capacity or willful refusal to consummate. The court held that the respondent had remained at all times a biological  male and that accordingly, the so – called marriage was void.

Unlike most European countries, two systems of marriages are recognised in Nigeria – the monogamous and polygamous systems. These two differ fundamentally in character and incident. It is important to keep this dualism in view in every consideration of the marriage laws in Nigeria. A monogamous marriage in Nigeria is the same as in England. It is a marriage which Lord Penzance described in Hyde V Hyde (1886) LRIP&D 130 as the voluntary union for life of one man one woman to the exclusion of all others. The laws which govern the celebration and incidents of monogamous marriage in Nigeria is the Matrimonial Causes Act of 1970.

The Role of Courts in Arbitration under the Arbitration and Conciliation Act (2014)

ABSTRACT

In the art of sophisticated dispute resolution the strategic fusion of the available means of dispute resolution is indispensable, it will be naïve to think otherwise. The various issues with regards the high litigation rates and expensive access to justice are a problem for policymakers and a nightmare for litigants and this has made people opt for an alternative means to dispute resolution. As arbitration grew worldwide, it began to gain the preference of most businessmen in Nigeria as a way of settling their dispute and the attitude of the courts began to change to a positive one towards arbitration. An attempt at a strategic fusion of arbitration and litigation to resolve disputes has been reiterated by the court in a plethora of cases. This essay examines the role the courts have played and continue to play a supportive role in ensuring that arbitration process in Nigeria is strengthened and empowered to perform its role in dispute resolution. It clarifies the functions of the court stipulated by the law on arbitration to deal with arbitration matters and the doctrinal bedrock of the functions and constraints on the tribunal and court in arbitral proceedings. This essay recommends the amendment of the Act in order to incorporate some emerging trends in other jurisdictions and the expansion of arbitral powers to enable the arbitral tribunal better deliver justice to the arbitral parties with confidence.

BRAND PROTECTION AND TRADEMARK LAW IN NIGERIA. CURBING COUNTERFEITS IN THE PHARMACEUTICAL INDUSTRY

Abstract

Following the changed economic and socio-political environment in Nigeria since 29th May, 1999, there has been an increasing consciousness for the protection of intellectual properties and trade marks inclusive, under the new and more investor-friendly atmosphere due to the counterfeiting of trade marks. Despite the fight against counterfeiting, estimates put the losses from counterfeiting suffered by trade mark owners doing business in Nigeria in billions of naira. The continuous thrive of trade marks counterfeiting has greatly hampered economic and industrial growth and development in areas I call: “Red Trading Zones”. There is therefore a dire need to structure an effective anti-counterfeiting strategy to combat the menace of trade marks counterfeiting.

ORIGINAL PRICE N15,000