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AN OVERVIEW OF THE JUSTICIABILITY OF THE FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY UNDER THE 1999 CONSTITUTION

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law and society

The constitution has provided guidelines of the fundamental objectives of good governance which frames the directive principles of state policy. Thus when we talk about clueless and visionless leaders, we are talking about the inept leadership that is not concerned with the growth of society but with the enlargement of their greed and self aggrandizement. There are sufficient guidelines in our constitution to give sight to the politically blind and propagate a new generation of responsible leadership.

 

A lot of our leaders go through Life appropriating the resources of society and stealing from the poor. They are basically illiterate in many cases or under educated but today they have acquired doctorate degrees without understanding the complexities of administrative economics. They also insist on their chieftaincy titles as if it immunes them from been properly addressed for their political larceny and criminal encroachment into governance.

 

The fundamental objectives and the directive principles of state policy are expedient  goals and policies to be pursued by the various arms of governments in Nigeria which are declaratory and advisory of the best ways to organize ourselves to achieve socio economic, political,  and cultural  development of our society in the backdrop of the diversity, heterogeneity ,pluoformity, pluralism of the ethnic, religious compositions, tribal and social groupings which informed the adoption of the federal constitution aimed at promoting a good life for all Nigerians by provoking collective development.

 

Thus under section 13 of the 1999 constitution, it is stated thus:

It shall be the duty and responsibility of all organs of government and of all authorities and persons exercising legislative, executive, or judicial powers to conform to, observe and apply the provisions of this chapter of this constitution.

 

Section 13 provided for the fundamental obligations of the government.

 

The role of Government and the people (14) the political objectives (15) The Economic Objectives (16) the social Objectives (17) The Educational Objectives. (18) The foreign policy Objectives (19) The Environmental Objectives (20) Directives on Nigeria culture (21) Obligation of the mass media (22) National Ethics (23) and Duties of the citizen (24).

 

The political Objectives provides for the national integration as a policy of state through encouragement of mobility of people, goods and services, residence rights for every citizen in all parts of the federation, promotion of inter ethnic marriage and associations.

 

It is also the economic Objectives of state to harness the resources of the Nation and promote national prosperity.

 

In the social objectives, stipulates that the state social order is founded on the ideals of freedom, equality and justice before the law.

 

Under the educational objectives, Government shall direct its policy towards ensuring that there are equal and adequate opportunities at all levels.

 

The foreign policy objective remains the promotion of African integration, and promotion of international co operation respect for international law and just world economic order. The environmental objectives envisions safeguards for water, air land, forest and wild life of Nigeria whilst the directives on Nigerian culture envisions its promotion to enhance human dignity and to encourage development of technological and scientific studies which enhance cultural  values. The objectives on the mass media is towards the promotion of a free press whilst the objectives on national ethics shall be the promotion of discipline, integrity, dignity of labour, social justice, religion tolerance, self reliance and patriotism amongst others.

 

These provisions are mere ideals, declaratory, advisory and patently not justifiable. For instance the educational objective provides “government shall direct its policy towards ensuring that there are equal and adequate educational opportunities for all” appears desirable but unrealistic. In the circumstance ,can a citizen denied access to such opportunities of equal and adequate educational opportunities which provides for free compulsory universal basic primary education, free secondary education, free university education, and free adult literacy programme  resort to court for a remedy? Or can a citizen go to court that the government had failed to encourage and provide him the opportunity for inter tribal marriage?

 

Thus section 13 appears to conflict with other provisions of the constitution and in particular, S.6  (6)(c) which excludes the jurisdiction of the courts on issues relating to the contravention of the provisions in this chapter in respect of the fundamental objectives and directive principles of state policy.

 

According to Professor Akande “It would appear therefore that the duty and responsibility on all organs of governments is limited to the extent that the judiciary cannot enforce any of the provisions of the fundamental objectives and  direct principles of state policy under the 1999 constitution and thus to that extent, the executive do not necessarily have to comply with any of the provisions unless and until the legislature have enacted specific laws for the enforcement”

 

In Archbishop Anthony Okogie V AG of Lagos state (1981) INCLR 218. It was held that the directive principle of state policy has to conform and run subsidiary to the fundamental rights and is subject to legislative powers conferred on the state.

 

Inevitably, the federal and state governments have remained criminally negligent in providing functional essential services to the Nigeria people. Our democratic values remain under explored, derogatory, and perhaps denied. The immunity clauses provided for our leaders ensures that they are neither interrupted nor prosecuted for a term in office.

 

It is doubtful whether the present constitution and or any amendments made would bring about a humane and just society when the judiciary remains corrupt and the police patently ineffective, corrupt and over centralized. We need a new approach to governance and a cultural revolution of sort that demands a higher level of integrity for our leaders.

 

In leadership, Character is every thing.

 

 

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1 Comment

1 Comment

  1. AKPORHONOR OHWEKEVWO

    January 15, 2016 at 7:34 pm

    NICE WORK.. very educative

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ARTICLES

The Legitimacy of Children Born out of wedlock

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The Legitimacy of Children Born out of wedlock

Introduction:

The birth of a Child should be a thing of Joy under the right circumstances but people make wrong choices or are misguided. Sometimes, children are born out of wedlock by acts of Rape and even incest. The phenomenon of teen pregnancy and child mothers remains a horror of the present times. These children are stigmatized and labeled, illegitimate or bastards and denied rights.
Is that fair and not repugnant to natural justice, equity and good conscience?

Who is a Bastard?

Starting on a good note, No one is a bastard under the Nigerian constitution. This has not always been the case though.
Under the old rules of common law, then, applicable in Nigeria, a child born outside wedlock is deemed a bastard and has no right whatsoever against his Biological parents. He is infact regarded and stigmatized as fillius Nullius, a stranger to the law, his relatives, and lacking basic legal rights and illegitimate in accordance with the law, in, contradistinction with a person born legitimately, under wedlock or 280 days after a decree absolute.

The Law:

The law is an Ass, some say. Here, I intend to praise it.
In the early period of our legal development, this cannot be less true in our tri- legal pluralism with its daunting conflicts of law situations. In recent times, our legal system has, seemly, reformed itself, in varied processes of re-socilialzation and public policy reforms.
Under our old laws, deeply influenced by the English marriage Act, a child born out of wedlock is simply put, illegitimate or a bastard.

This social stigmatization still exists today in varied forms and very difficult to eradicate especially where there’s something to share.

The 1999, constitution as amended under section 42{2} which is a reenactment of section 39 [2] of the 1979 constitution, provides- “That no Citizen of Nigeria shall be subject to any disability or discrimination by reason of Birth.”

The effect of this provision is that a child born out of wedlock can be legitimated by the putative father by subsequent marriage, or acts of acknowledgement during his life time. Such acts includes, paying for his maternity Bills, conducting his naming ceremony or acknowledging him in the content of a letter.

This is known as the process of legitimation which avails him succession rights in the share of the estates of the deceased. See the decisions in Cole V Akinyele [1960] SCNLR 192, Taylor V taylor [1960] LLR286

The Pith and substance of legitimacy relies on valid marriages but legitimation relies on acts of acknowledgements by the putative father.

Let it be noted here, on marriages, that couples who undergo traditional marriages and have church weddings thereafter without both parties going through the processes of validation under the Act are entitled only to a church Blessing unless such a Church is licensed to process and validate Marriages; otherwise a couple, cannot claim that their marriage is monogamous or subject to succession rights of a Licensed Christian Marriage, under the Act.

A marriage is a contract which creates rights, duties and succession rights under a written law where it is conducted under the Act. It creates the issues of illegitimacy and legitimation in the backdrop of succession rights.

There’s a presumption of polygamy, for marriages conducted under Native laws and customs. If the Man has children outside the marriage, those children are not illegitimate under the present 1999 constitution nor are you entitled to claim that your marriage is to the exclusion of any other unless you took steps to validate it under the Act.

Surprisingly, the average Nigerian, marries thrice and in three venues, and at various times, to the same woman-[1] under native law and custom [2] Under the Act [3] Church solemnization.

The Society: Nigerian law has made giant strides often through legislative and judicial activism but more need to be done. Our Domestic laws need to be strengthened by ratified international treaties against discriminations against children especially the Girl child.

These global initiatives to eliminate stigmatization and discrimination against children have their challenges. Section 17[5] of the American Convention on Human rights which provides against discrimination for children, is a good example.

There are helpful international treaties on human and property rights which Nigeria is signatory to but the problems of ratification and domestication remains its daunting challenges. See Abacha v Gani Fawehinmi [2006] 6 NWLR pt 666 at 238
Re-socialisation and public policy reforms are on the right path with women and legitimated children, allowed to inherit their father’s properties in recent developments.

In Igbo land teenage and female pregnancies are no longer rare. Even daughters are staying back to have male kids for their fathers. These children grow with new challenges and are subjected to many social discriminations and stigmatization. Many acquire alarming special skills in armed robbery and quite a fewer number become responsible.

The Biological fathers arising from these seemly undesired pregnancies should take responsibility for their acts and go with the baby who should be given the sense of belonging from birth. Modern DNA testing would be helpful.

The time has gone when we say, “If the father doesn’t comply with traditional obligations on Marriage, he can’t have the child.” Let the child go to his father before you raise a monster with your hands that will trouble and torment your family for ages.

This does not prevent the girl’s family from helping out or even accommodating the growing child who bears his or her father’s name.

Less emphasis should be placed on Bride Price and Marriage lists. They should be outlawed as chatelization and enslavery of women.

Conclusion:

In my view and in the view of a court, there are no illegitimate children, only illegitimate parents. See In Re Estate of Woodward [1964]40 Cal Rptr, 781,784 per Yankwich J.
That says it all.

The End.

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The task before the New Attorney General Imo State

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The task before the New Attorney General Imo State

The Breath of Democracy is the rule of law, due Process and Justice and the Attorney General, the chief law Officer of a State whom the Supreme court described as “a god “ in obvious exaggeration, in AMAEFULE V STATE[ 1988] 2 NWLR[PT75]156 is held accountable for the legal developments.

The Attorney General of Imo State is not a mere Lawyer but the Chief Legal Officer that represents the state. He is also seen as the commissioner for Justice. His duty includes the responsibility to ensure that the laws of the state are uniformly enforced from his office situate at the ministry of Justice.

By virtue of section 195 of the 1999 Constitution as amended, the office of the Attorney General is provided for by the Apex legislation in the following words, “There shall be an Attorney- General for each State who shall be the chief law officer of the State and a commissioner for Justice of the Government of that state pursuant to the above provision.”
The Attorney General of a state is charged with the responsibility of providing legal services and support for law enforcement Agencies.

He is responsible for advising the Government on legal Matters and representing it in litigation and disputes.

The 1979 and 1989 presidential constitution created the Offices of the Attorney General to function as a chief law officer of the federation or state as a political appointment of a non civil servant in the ministry of justice.

Tobi JCA in Esokoro Vs Govt of Cross River State (1991] 4 NWLR [pt 185] 336 stated inter Alia, “The Attorney General of the state is not only the Head of the ministry of justice but also the chief legal adviser of the Government. He is basically responsible for Government actions and inactions.”

The Attorney General is seen as the supreme Law Officer who is not subject to controls and as law Unto Himself in view of his Powers of Nolle Prosequi , leading the Supreme Court to declare in State Vs Ilori ( 1985 )2 SC 155 on the exercise of the Powers of Nolle Prosequi, that the Attorney General’s Power, “is no doubt a great ministerial responsibility coupled with grave responsibility”

While In AG OGUN STATE V EGANTI [1986 ] 3 NWLR [pt28] 256 the CA held that the powers of the Attorney General Under the constitution cannot be challenged successfully or rather unchallengeable as the exercises of his powers cannot be reviewed by courts.
These decisions clearly demonstrate the awesome roles and grave responsibility attached to the office of a State Attorney General.

There are many problems facing Imo State in which the strategic and systemic response of the chief Law officer of the state who represents and advises the State government is vital for the development of the rule of law, due process and the machinery of administration of Justice.

One of the vital issues which the new Attorney General should advise the Government is on the necessity for the conduct of free and fair elections in the 27 Local Government Areas of the state to drive growth and development at the grassroots.

Indeed Section 7 of the 1999 constitution provides for Local Government Area administration by “duly elected Councilmen”

It therefore follows that the extended use of the Caretaker Transition Chairmen for Local Government Areas may lead to the stultification of local Government administration.

At this early stage, of the government, grasping with the realities on ground, the use of the LGA transition Teams across the 27 local Government may not be out of order pending the provisions of logistics, training, staffing, equipping of the Imo State Independent Electoral Commission to prepare adequately the conduct of free and fair local government Elections across the state.

Another point in focus, is that while preceding administrations’, purportedly enter into joint partnership projects with LGAs across the state, which denied the counties of needed resources to drive grass root growth, Local Government Councils, often lacked control and fiscal autonomy with respect to the disbursements and control of their allocations which has undermined growth.

The new Attorney General should help to bring about real autonomy for the LGAs across the state.

Further the appointment of revenue agents with private accounts to collect at undisclosed commission, LGA charges, taxes and sources of revenue like, Business Premises, Permits, environmental charges, has placed local governments across the state with no revenues to discharge their statutory functions and their Staff redundant.

For instance Refuse disposal is a key function of Local Government Areas. However the State ENTRACO charges from the centre are undermining Local Government revenues and administrations in that regard by depriving them of the sources of their revenues.
State Revenue agents are dragging Business Proprietors before Kangaroo Courts to pay unreasonable charges which end in private Pockets.

This advisedly, must come to an end under the present dispensation. The courts must not be used to further illegality.

The State has no business with collecting local government taxes using private revenue agents unknown to our laws.

I have filed several Objections in favour of my clients in many of these systemic drains but the often expressed reason for strafing the Local Government Areas of not just their allocations and functions is because of the debt Profile of the State which runs to about N200b while keeping in view the growing liability of state cumulative Judgment debts.
This however is not an acceptable excuse for illegality.

In another development, there are at least over 678 matters pending against the state in the various courts with cumulative damages of N42b against Imo state.
The state is under a torturous debt burden that is undermining growth. This requires a legal and political solution.

What are the better responses to these costly escalating litigations?
The new Attorney General should seek alternative dispute resolutions to resolve these pending issues where possible.

There are varied orchestrated issues arising from employment, Labour, wrongful appropriations of private lands and non remittances of compensations to persons whose properties were wrongfully acquired and demolished without due process as provided under the Land Use Act.

The tasks before the New Attorney General, C.O.C. Akaolisa is a herculean one but given his drive, intelligence, loyalty, doggedness, and lawyerly disposition, obvious from his early years of practice in Orlu, and Lagos, we are hopeful that the state would be well advised on these issues, and on the need to conduct a LGA Elections within the first tenure, provide a leverage for LGA revenue drives by the LGA Authority rather than state. And find ways to seek arbitrations, of the costly, mass litigations which has bedeviled the state finances and placed the State ministry of Justice under siege.

It is Important that the Government of His Excellency Chief Senator Hope Uzodinma, abides by Court Orders and the rule of law. These are the very breath of democracy which we practice.

The new Attorney General C.O.C. Akolisa should ensure that the exercise of his vast powers is in public interests which help to drive growth, economic and legal development within the state.

The Powers of the Attorney General in Criminal and Civil Matters are enormous but which must be exercised in public interest.

The powers are not without limitations under Statutes and case law. Under
S. 174[3] of the 1999 constitution states that “In the exercise of his Power in criminal matters, the Attorney General shall have regard to Public interest, the interest of justice and the need to prevent the abuse of the legal process.”

One of such abuses of court processes are the uses of illegal revenue Courts by the state to deprive LGAs of their revenues.

While the AG cannot take dictations from anybody he is expected to be comported in the spirit of the law for state interest.

In ATTORNEY GENERAL OF KADUNA STATE V HASSAN Irekefe JSC stated plainly, “The Exercise of the Powers vested in the AG under the section cannot be mechanical or automation approach, particularly in a situation where issues of high state policy are involved, which could require it to be balanced one way or another before action is taken.”
There is a great expectation in the Air because of the new Attorney General and his known devotion to the letters of the law.

We are hopeful that the onslaughts against the rule of law, reckless disregard for court orders without adherence to due process will be for Imolites, things of the past.
We are hopeful that arbitrations with litigants would be an option in legal disputes. We expect that the Government would embrace the rule of law, human rights, respect private property right and uphold fiscal responsibility and political openness in which the state is respected for its justice administration rather than mocked for its failures to uphold fairness to the poor and citizenry, often the first causalities in legal and political collusions.

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Steps to take before buying a property

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The task before the New Attorney General Imo State

Every day we hear of People been defrauded in Land transactions. The reason for this is not farfetched. The Buyer has not consulted a lawyer for the appropriate Search. The buyer often tries to avoid the payment of legal fees. Such persons are prepared to pay Estate agents 10% Commissions but least prepared to secure their purchases by appropriate searches and documentations.

Often times the absences of lawyers is part of an elaborate ploy to dupe the unsuspecting buyer.

They will say to the Buyer, “we don’t need a lawyer to mess things up. In fact I have a lawyer who can prepare the Deed for you for ten thousand Naira or you find him something!” They minister to his greed that way. It takes years sometimes, before he finds out about the scam or the registered encumbrances attached to property. Much like Penny wise Pounds foolish.

The only remedy may be an elongated litigation.

Using the police cannot be of much help in establishing title.

Once the accused Person raises dispute as to title or impinges on the integrity of title of the Buyer, the police have to hands-off in the absence of a confessional Statement.

Much of the cases in our various Police Stations have issues of title to land which are obscured by clever criminalization vide petitions alleging such offences like threats to life and Conduct likely to cause the breach of public Peace.
This cannot resolve the issues of title.

So what are the steps to be taken before you make that land or property investment?
The first step is to conduct a search at the lands registry through your lawyer, if the land is the subject of a registered Deed, conveyance, Assignment, sub lease, or Certificate of occupancy.

Such a search may reveal the existence of a registered charge, lien, or encumbrances.
In which case, the Buyer should not buy or at least, ensure that the charges and or encumbrances are considered or discharged when considering the adequate value for the property. However where such encumbrances impinge on the legal and beneficial title to the property, the client should be advised to withdraw forthwith.
Often times, the properties sought to be sold may have been used as collateral for a loan which the buyer only becomes aware of after purchase. In such situation, there’s little he can do because he is presumed to be aware of such encumbrances subject to the rules of disclosure.

The purpose of a search is to establish the root of title or in a simple term, a trace of how the seller acquired the legal and beneficial ownership of the Property which he seeks to sell. In most cases, the property may have been inherited as an ancestral property, with evidence of long possession.
Where the Seller, acquired ownership through a purchase, there would be evidence of purchase receipts, conveyance, Survey, Governor’s Consent or certificate of occupancy under a Statutory grant.
We shall consider in this section, documentary evidence of title. In later discourse we shall look at the legal ways and means of proving title in court.
The following are the Documents that you are required to demand while considering a purchase of Property-

1. Purchase Receipt –
This is the first Document which evidences that the property the subject of the demise has been paid for and by extension an evidence of title or sort, short of a conveyance.

2. Deed of Assignment
A registered Deed of assignment is a conveyance and a good title under the Land Use Act which entitles the Holder to 99 years lease under the Land Use Act subject to renewal. Section 2 of the Conveyancing Act 1881 defines a conveyance to include any Assignment, Appointment, lease, settlement, and other assurances to surrender title. It may take the form of a mortgage, Assent, lease, vesting declaration other than a Will.

3. Power of Attorney –
A power of Attorney is a delegation of Authority to deal with land. It is not really considered as a good root of title but often used in the South east where it is made irrevocable. It is better in my view to execute a Deed of Conveyance rather than a Power of Attorney. In Imo state, a Government Policy made it non registrable in pursuance of a C of O.

4.Survey Plan –  
A registered Survey is a delineation of a land or parcel thereof. It accordingly states the Owner and location of the land in clear delineations.

5. Excision –
This means that the property the subject of sale is free of Government acquisition and largely determines the owner in consequence thereof.

6. Gazette –
It is a declaratory and confirmatory government publication in favour of a beneficial owner.

7. Governor’s Consent

Subject to the Land Use Act, any transfer of land or property is subject to the prior authenticated consent of the Governor of a state before a transfer of title in theory. This is preparatory to obtaining a certificate of occupancy. Where a C of O has not been obtained, or pending, a Governor’s consent to dispose of interest in land is a good root of title.

8.Certificate of Occupancy –
A certificate of Occupancy is a statutory affirmation of title over land issued by a state Government. The Occupant is Assigned a leasehold of 99 years. Any conveyance of the unexpired residue of an Assignment is called a Sub Assignment which is also a good root of Title.

The first step in obtaining a Certificate of occupancy is to obtain a registered conveyance with all stamp duties paid including the authentication of the Governor’s consent.

Registration of title:
It is very important on acquiring a Property in an Urban Area to execute a receipt of purchase Sealed by a Lawyer’s (NBA) Stamp / Seal together with a Conveyance which should thereafter should be registered at local registry. Any documentation in respect of land without a lawyer’s Seal is incompetent and not registerable.

Have you acquired any interest in property in an Urban Area? Do you have the required Documentation and registration of Title? Are you considering a search in the lands Registry? Is the land the subject of the conveyance properly delineated by a survey?
Consult your lawyer now for further explanations of steps to take to protect your land transactions and interests.

If you have any question on preparing Deeds, searches and Disputes arising from title, please feel free to call for help.

 

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