Tag: National Human Rights Commission

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The Presumption of Innocence vs The Presumption of Guilt; The Nigerian Bail Story.

In Nigeria, every person (including suspects and defendants/accused persons) is assumed to be innocent until a court declares a person guilty. This is a constitutional right that should not be violated by any person (including law enforcement agencies, institutions, leaders and government). However, the reverse is the case, with overzealous law enforcement agencies, going in the circles of; abuse, arrest, abuse, detain and abuse again before taking the suspect to court (if the suspect is fortunate to be arraigned). In Nigeria, “Bail” is mostly seen in law books and movies, since many suspects are detained without bail for weeks in all parts of Nigeria and lawyers get beaten up for seeking bail for clients. This work reveals the quickest means of obtaining bail after 24 hours of arrest in any part of Nigeria.

There is a big gap between criminal law and human rights as contained in our law books and as applied in reality. There are three groups of law enforcement agents in Nigeria; the first group understands the law and applies it thoroughly, the second group understands the law but will not apply it due to corruption, nepotism and fear while the third group does not understand the law and does not care. Unfortunately, the last group seems to be dominating followed by the second group, as such human rights suppressed. Among the concerned human rights are; right to life, right to dignity of human person, right to personal liberty, right to fair hearing and right to freedom of movement.


The essence of bail is to enable a suspect to go home and about his affairs while ensuring the suspect will at a later date, appear in a given place (like the office of a law enforcement agency or in court for investigation or to answer to his case). Bail is not a privilege or favour done to a suspect rather a right of a suspect. Remember that a suspect is not guilty so he/she should not suffer or be treated as if he is guilty. Consequently, a suspect that is detained for an offence not punishable with death (non-capital offences) is entitled to bail within 24 hours of being arrested.

The police (any law enforcement agency) time for detaining a suspect arrested for an offence that is not to be punished with death (non-capital offences) is 24 hours. Time starts counting from the moment a person is arrested, ceased or appears to answers an invitation of a law enforcement agency (whatever the language/term, so far as a person is no longer free). So, once a suspect is arrested, the law enforcement agency must ensure that its further investigation, bio-data capturing, granting of bail and seeking for advice, approval and any indoor management/protocol is completed within 24 hours. Where a suspect is detained beyond 24 hours for an offence that is not punishable with death, the suspect can be granted bail by a court having jurisdiction over the offence.

In Nigeria, a detained person may not be allowed to approach a court to seek his own bail or to even access a lawyer of his/her choice, by overzealous law enforcement agents working on ignorance or corruption. Hence, where a suspect is not granted bail by a law enforcement agency within 24 hours over a non-capital offence, any person can go to court and institute a case against the concerned law enforcement agency (and its agents) on behalf of the suspect. The court will order the suspect to be produced (brought to) court and inquire into the circumstances of the detention. Where the court desires, the court will grant bail to the suspect. The required application for bail in court, can be written or oral, even if the court is a superior court (High Court/Federal High Court/National Industrial Court).

It is better to engage a lawyer to assist with bail application in court. Bail is a right and not a favour. Bail is free because it is a constitutional and fundamental human right, provided freely by the Constitution of Nigeria. Report any law enforcement agent, court staff, magistrate, judge or legal practitioner that request for money/gift in order to grant bail. However, a legal practitioner is entitled to charge for his legal services but no to charge any fee to be paid as bribe or gift for bail.

My authorities are:

1. Sections 32, 161, 162, 163, 164, 494 and 495 of the Administration of Criminal Justice Act 2015 and its equivalent in states across Nigeria.
2. Sections 34, 35, 36, 230, 237, 249, 255, 260, 265, 318 and 319 of the Constitution of the Federal Republic of Nigeria 1999.
3. Judgment of the Supreme Court of Nigeria (on the nature and effect of Bail) in the case of SULEMAN & ANOR v. COP PLATEAU STATE (2008) LPELR-3126(SC)
4. Judgement of the Supreme Court of Nigeria (on bail) in the case of UGWU v. STATE (2020) LPELR-49375(SC)
5. Judgement of the Court of Appeal (that every person is presumed innocent) in the case of ALAYA v. STATE (2007) LPELR-8841(CA) citing Eyu v. The State (1988) 2 NWLR (Pt.78) 602 at 610, Abiola v. FR.N. (1995) 7 NWLR (Pt.405) 1 at 155
6. Judgment of the Court of Appeal (on whether bail can be granted in non-capital offences) in the case of OGEDE v. FRN (2018) LPELR-46816(CA)
7. Judgment of the Court of Appeal (on whether bail can be granted in capital offences) in the case of OGEDE v. FRN (2018) LPELR-46816(CA)
8. Judgment of the Court of Appeal (that oral bail application can be made in any court, including courts of record) in the case of Chief Alhaji Moshood Kashimawo Abiola V. Federal Republic of Nigeria (1995) NWRL PART 370 P.155.
9. James Ezeh, “Nigerian Lawyer Hospitalised after Police Assault, NBA Demands Justice” (Premuim Times, 13 October 2019) 1 September 2020.

© thenigerianlawyer.com
7/10/2020

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The Term “Next Of Kin” Simpliciter, Does Not Confer The Right Of Inheritance On The Person So Named: Of What Use is the term?

The meaning and the legal implication of the term “next of kin” have been constantly misunderstood by the ordinary public. It appears, though erroneously, that many people think that once you are appointed the next of kin of a person, it automatically gives you the right to inherit the person’s estate upon his demise. In fact, many people think that, a next of kin gives an exclusive right over a person’s property.

The above erroneous believe and understanding of the term next of Kin has made many people to shy away from the need to make a Will. This is because, they think appointing a Next of Kin, is a way of naming your beneficiary. However, the above assumption is not in conformity with the law. It must be noted that, ignorance of the law is not an excuse.

WHAT THEN IS THE MEANING OF THE TERM “NEXT OF KIN”?

The term, next of Kin has been described as the nearest blood relative of a person. See JOSEPH v FAJEMILEHIN O.O & Anor (2012) LPELR-9849(CA). The term can also refer to a person who can be contacted or notified in cases of emergencies or eventualities. For instance, one of the forms that is usually filled while on transit, requires the information of next of kin. This is needed in case of any accident. In other words, where there is an accident involving that person, his next of kin shall be notified or informed.

Also, the term is constantly put into use by hospitals. In this case, next of kin means a person who can make medical decisions for a person who is incapacitated or unable to do so, during emergencies.

The term is also frequently used in financial documents by banks and other financial institutions. In this instance, next of kin means a person who can ensure that the proper steps are taken towards the recovery of the money held at the bank, at the demise of the owner. In other words, being a next of kin of a person, as regards his money in the bank, does not give a right to inherit such money, either partly or as a whole.

WHAT IS THE LEGAL IMPLICATION OF THE TERM NEXT OF KIN AS IT RELATES TO THE LAW OF SUCCESSION?

It must be noted that appointment of a next of Kin is not a substitute to the making of a valid WILL. The reason is because, when a person dies testate (that is, the person made a valid Will), the matter of next of kin is of no relevance. The estate of a deceased person who dies testate is distributed strictly according to the Will. Thus, his next of kin will only be entiled to his estate, if the WILL says so.

On the other hand, in a situation where the deceased died intestate (that is, without making a valid Will), the question of the distribution of his estate is governed by the law. The customary law/Islamic law or the Administration of Estate Law will apply depending on the kind of marriage contracted by the deceased. In other words, if the deceased contracted a statutory marriage (popularly known as court marriage), the distribution of his estate shall be governed by either the English Law or the Administration of Estate Law. See OBUZEZ V OBUZEZ (2007) 10 NWLR (Pt.1043) 430. It must be noted that the Administration of Estate Law provides for the order of inheritance which must be complied with strictly and a next of kin, is not among the categories of those entitled to inheritance in this instance.

In other words, Succession is regulated by law. It is only those entitled by law to inherit a deceased person’s estate that can do so. A next of Kin is not one of such persons. However, this is without prejudice to his right to inherit on a personal ground. Thus, if the person so named as a next of kin is the son of the deceased, he is entitled to inherit, not as a next of kin, but because he is the legitimate son of the deceased. Also, if the person so named as a next of kin, is also named in a valid Will made by the deceased, he is entitled to an inheritance not because he is a next of kin, rather, because, he is named in the WILL.

CONCLUSION

A next of kin, who is usually a blood relative, though not always, has no legal right of inheritance by virtue of his status as a next of kin simpliciter. However, it must be noted that the appointment of a next of kin is not a means or method of naming an heir. A next of Kin is not recognised as an heir under the Nigerian law of succession.

Therefore, next of kin, stricto sensu, does not by any stretch of imagination, entitle the person so named an automatic right of inheritance. If the person so named as a next of kin is not entitled either by the WILL or by other laws of inheritance, to inherit, he cannot be conferred with the right of inheritance by the mere fact that he is named as a next of kin.

It is hereby submitted that when it comes to the law of succession, the term next of kin has no legal implication. It therefore does not confer the right of inheritance. Thus, it is erroneous and unlawful for anyone to claim any inheritance on the singularly reason that he is named as a next of kin. Such claims have no legal bases and are unfounded.

Thanks

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HRCRC and other rights groups confronts Primitive form of punishment and rights abuse in Ebonyi State

Pastor Okochi Chukwu Obeni, the latest victim of jungle justice and primitive punishment – as well as intimidation by the political class in Ebonyi state. He is from Ohaechara Eziome Okochi, Amasiri community, Afikpo North LGA of Ebonyi State. Two days ago, following a Facebook post he made, perceived to be distasteful to the chairman of Afikpo North LGA, Hon. Oko Enyim; a TA to the governor, Hon Amadi Julius Nyerere and a supposed Isi Oru Community leader, Abidi, Amicable Ikechukwu boldly led a group of boys who abducted him, tied him up at first and ordered him to face the sun for over an hour which almost left him blind.

After that, they bundled him like a common criminal, threw him into a dirty gutter and allowed him to swim for 30 minutes. After which they ordered him to crawl out of the gutter before they began to lash him with a cane. Each of the boys was charged to give him 10 strokes of the cane. According to the victim, he had received a total of 35 strokes on his buttocks before he was bailed out the remaining strokes of cane were bought off with money.

Visit HRCRC Facebook Page – HRCRC. Abakaliki for a video of the torture he endured or click on the link https://web.facebook.com/oti.abali/videos/3542194455796429/UzpfSTI0MjY0NTU0MjkyMjU0NDo4NzQwMjc0MTY0NTEwMTc/

Torture and jungle justice in Amasiri, Ebonyi State

HRCRC, in conjuction with HURIDE visited Afikpo to see the wounded Pastor Okochi and we discovered that he has not been able to use his hands on anything and can’t even sit on his buttocks since after the attack. He has been taken him to the Federal Teaching hospital, Abakaliki where he is currently receiving treatment; whilst legal actions have commenced.

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HRCRC Marks 2019 International Human Rights Day

With the teeming youth population of Nigeria today, the international theme of this year's Human Rights Day - Youths Stand Up for Human Rights - couldn't be more apt and explicit. 
In culmination of the week-long activities to mark the day, HRCRC in collaboration with National Human Rights Commission Abakaliki and other CSOs embarked on a Roadwork in Abakaliki metropolis...
On the Road

The struggle continues until Nigeria, Africa and indeed our world becomes a haven of Human Rights, and the Rule of Law.

YOUTHS, LETS STAND FOR HUMAN RIGHTS THIS YEAR AS APPARENTLY, IT WILL NOT BE HANDED TO US SITTING…