On the 11th of September ,the world was
shook to its base with the terror attack on the most significant trade centre
in the united states-world trade centre and thus open a new vista in
international security challenges .since then, terrorism has continued to
threaten global peace and prosperity. Terrorism is described as the calculated
and extreme use of violence or threatened violence, perpetuated by malice, to
cause serious harm or violence against individuals, governments and their
assets with the intention to attain political,
In this piece ,it is our intention to find out whether a person can be prosecuted for
terrorism and the legal regime [the law and where it can be found] for
such prosecution [if any].However
before we can safely and properly carry
out this inquiry, it is imperative to find out the sources of the Nigerian
legal system.
The Nigerian
legal system is based on the English common law legal tradition by virtue of
colonization and the attendant incidence of reception of English law through
the process of legal transplant. According to Obilade (1979) English law has a
tremendous influence on the Nigerian legal system, and “English law forms a
substantial part of Nigerian law”. The sources of Nigerian law are: The Constitution; Legislation; English
law; Customary law; Islamic law; and Judicial precedents.
Constitution
The current
constitution is the 1999 Constitution.The 1999 Nigerian Constitution came
into operation on May 29, 1999.
Legislation
The
Constitution of the Federal Republic of Nigeria 1999 regulates the distribution
of legislative business between the National Assembly, which has power to make
laws for the Federation and the House of Assembly for each State of the
Federation. The current legislation in force at the federal level is largely
contained in the Laws of the Federation of
Nigeria 1990 (LFN).
Laws made after the 1990 law revision exercise of the federal laws are to be
found in the Annual Volumes of the Laws of the Federal Republic of Nigeria.
Federal laws under the Military, known as Decrees, and state laws, known as
Edicts, form the bulk the primary legislation.
Each
of the 36 states and the Federal Capital Territory (FCT) Abuja has its own
laws. Some states have in recent times undertaken law revision exercises to
present their laws in a compact and comprehensive form to guarantee easy access.
Most of the pre-1990 Decrees were incorporated into the LFN and those patently
incompatible with the new constitutional order were repealed on the eve of the
inauguration of a new democratic government in May 1999. Primary and
subordinate legislation in force on the coming into operation of the
Constitution are treated by the Constitution as existing laws and deemed to
have been made by the appropriate legislative body with competence to do so
under the 1999 Nigerian Constitution. Legislation has been described as the
most important source of Nigerian law. This is partly because all other sources
of Nigerian law are considered as such by virtue of a piece of legislation or
the other.
English Law
This consists of:
(a) the received English law comprising:
(i) the common law;
(ii) the doctrines of
equity;
(iii) statutes of
general application in force in England on January 1, 1900;
(iv) statutes and
subsidiary legislation on specified matters and
(b)English law (statutes) made before October 1, 1960
and extending to Nigeria which are not yet repealed. Laws made by the local colonial
legislature are treated as part of Nigerian legislation. The failure to review
most of these laws especially in the field of criminal law has occasioned the
existence of what may be described as impracticable laws or legal provisions
which are honored more in breach than in observance. Despite the influence of
English Law, the Nigerian legal system is very complex because of legal
pluralism.
Customary Law
The traditional classification of customary
law is into the two categories:Ethnic/Non-Moslem; Moslem
law/ Sharia.
In
the states in the Southern part of the country, Moslem/Islamic law, where it
exists, is integrated into and has always been treated as an aspect of the
customary law. Since 1956, however, Islamic law has been administered in the
Northern states as a separate and distinct system. Even then it has only been
in relation to Muslim personal law. However, it is better to accord Islamic law
its distinct status as a separate source of law because of its peculiarities in
terms of origin, nature and territorial and personal scope of application.
Ethnic / Non-Moslem Law-The ethnic customary law is the
indigenous law that applies to the members of the different ethnic groups.
Nigeria is made up of several ethnic groups each with its own variety of
customary law. Customary law is a system of law that reflects the culture,
customs, values and habits of the people whose activities it regulates. It has
been described as a mirror of accepted usage. Customary law is particularly
dominant in the area of personal and family relations like marriage, divorce,
guardianship and custody of children and succession. Naturally, differences in
the customary laws of different ethnic groups do exist and this must be taken
for granted. Even within an ethnic group, instances of pockets of differences
in aspects of customary law are noticeable. For example, the marriage customs
and inheritance rules of the Ibos of the South Eastern Nigeria are different
from those of the Yorubas of the South Western Nigeria. Beyond this the
customary values and systems of various Yoruba sub-ethnic groups are bound to
be different even if they are in the same State. Unfortunately, ethnic
customary law is unwritten, uncertain and difficult to ascertain. It is
flexible and has the capacity to adapt to social and economic changes without
losing its character. There have been instances of legislative interventions to
modify and at times abrogate rules of customary law. Customary law is usually
enforced in customary courts, the courts at the lowest rung of the hierarchy of
courts, which in most cases are presided over by non-legally trained personnel,
though higher courts are equally permitted to observe and to enforce the
observance of rules of customary law by their enabling laws. It is to be noted
the bulk of causes on the Cause List of customary courts, especially in South
Western Nigeria, are matters relating to the dissolution of traditional
marriages.
Islamic Law / Sharia / Moslem Law-Islamic law, unlike ethnic customary
law, is written. Its principles are clearly defined and articulated. This
system of law has worked with detailed thoroughness and incisive precision. It
is based on the Islamic religion and was introduced into Nigeria by its
practitioners as a consequence of a successful process of Islamization. This
system of law is based on the Holy Koran and the teachings of Prophet Muhammad.
In some areas Islamic law after its introduction completely supplanted the
preexisting system of customary laws whereas in other areas it became
incorporated with customary law and the two systems have become fused and are
jointly administered. Islamic law is being enforced in some states of Nigeria
especially in the Northern part where populations are predominantly Moslem. The
scope of operation of Islamic law has been broadened since the introduction of
the Sharia legal system in the present democratic dispensation in a number of
Northern states such as Zamfara, Kano, Kaduna, and Sokoto among others. The
principal feature of this new development is the introduction of religious
based criminal offences, especially on matters of morality and the introduction
of punishments sanctioned by the Koran. The apex court, the Supreme Court of
Nigeria, has not had the opportunity to pronounce on the constitutionality of
punishments like amputation and stoning of a person to death, which the Sharia
prescribes for certain offences.
Judicial Precedents-The Supreme Court is the highest court
of the land. It replaced the Judicial Committee of the Privy Council in 1963 as
the final court of appeal. The Court of Appeal (originally known as the Federal
Court of Appeal) was established in 1976 as a national penultimate court to
entertain appeals from the High Courts, which are the trial courts of general
jurisdiction. The Court of Appeal sits in 10 Judicial Divisions scattered
throughout the country but it is still a single court and is ordinarily bound
by its own decisions. The Court of Appeal and all lower courts are bound by the
decisions of this Supreme Court. The High Courts and other courts of coordinate
and subordinate jurisdiction are equally bound by the decisions of the Court of
Appeal. The doctrine of judicial precedents does not apply rigidly to certain
courts like the customary/area courts and the Sharia courts in Nigeria.
LEGAL
REGIME FOR THE PROSECUTION OF TERRORISM IN NIGERIA
To address this criminal activity, governments
all over the world, including the Nigerian government, have passed into law
various legislation making terrorism very serious global criminal offences. In
Nigeria, the legislation that proscribes all manner of terrorist activity is
the Terrorism (Prevention) Act, 2011.
The Act is divided into eight parts, with 41 sections. The provisions cover the
following issues:
•Acts of terrorism and related
offences.
•Terrorism funding and properties
obtained through acts of terrorism.
•Mutual assistance, information
sharing and extradition where there is a mutual treaty with a foreign state on
offences related to terrorism.
•Investigation and prosecution of
terrorists.
•Revocation of licences and refusal of
application for registration of charities linked to terrorist groups.
•How to obtain information relating to
passengers of vessels, aircraft and persons from operator of an aircraft or
master of a vessel when a person(s) suspected for terrorist activity is on
board.
Prohibition
of Terrorism
It is a criminal offence, under Nigerian law, for any person to commit, threaten, promote, assist or facilitate any act preparatory to or in furtherance of, or the actual execution of any act(s) of terrorism.
It is a criminal offence, under Nigerian law, for any person to commit, threaten, promote, assist or facilitate any act preparatory to or in furtherance of, or the actual execution of any act(s) of terrorism.
Terrorism
Funding
Any person who directly or indirectly provides or collects funds with the knowledge or intention that such funds will be used in full or in part for any kind of terrorist activity commits an offence and is liable on conviction to a maximum term of imprisonment of ten (10) years. Similar provisions and penalty applies to persons who knowingly solicit, receive, provide or possess any property for the furtherance of a terrorist activity or activities.The Attorney General of the Federal Republic of Nigeria is empowered to make regulations for the freezing of the assets and funds of a terrorist group or of any individual involved in terrorist activity.
Any person who directly or indirectly provides or collects funds with the knowledge or intention that such funds will be used in full or in part for any kind of terrorist activity commits an offence and is liable on conviction to a maximum term of imprisonment of ten (10) years. Similar provisions and penalty applies to persons who knowingly solicit, receive, provide or possess any property for the furtherance of a terrorist activity or activities.The Attorney General of the Federal Republic of Nigeria is empowered to make regulations for the freezing of the assets and funds of a terrorist group or of any individual involved in terrorist activity.
Arranging
and supporting terrorist meetings, harbouring terrorists, obstructing terrorist
investigations, been declared an international terrorist group or individual or
failing to report terrorist financial transactions are offences which on
conviction carry terms of imprisonment of not less than 3 years and not more
than 20 years.
The Nigerian Terrorism (Prevention)
Act, 2011 essentially seeks to
•Provide measures for the prevention,
prohibition and combating of acts of terrorism and the financing of terrorism
in Nigeria.
•The effective implementation of the
AU Convention on the Prevention and Combating of Terrorism and the Convention
and Suppression of Financing of Terrorism.
•Prescribe penalties for violating any
of its provisions.
According to section 1(2(c)(i-iii),
terrorism includes attacks upon a person’s life which may cause bodily harm or
death, kidnappings, as well as the destruction of government facilities or
private properties in a manner likely to endanger human life or result in a
major economic loss.
Some of the laudable provisions are:
•Comprehensive definition of terrorism
and terrorist activities.
•The power to proscribe terrorist
groups or groups with terrorist tendencies.
•Several provisions enhancing
collaboration between Nigeria and other countries in the global fight against
terrorism.
•Provisions aimed at facilitating the
ratification and enforcement of international and regional conventions and
treaties on terrorism.
•Provisions allowing investigation
into and the seizure of properties and cash belonging to terrorist groups and
their financiers.
•The power to withdraw certificates of
incorporation of business organisations who are found using the funds from
their legitimate business to fund terrorist organisation.
However, the question that agitates
the mind of Nigerians is: Are the provisions of the Act adequate in addressing
the Nigerian terrorism situation? The answer is no, as there are several
inadequacies therein. Some of the said inadequacies are enumerated below:
•In pursuing the objectives of the
Act, the lawmakers have neglected to include in the Act, provisions for the
protection of the fundamental human rights of terrorist suspects. It is a
fundamental principle of law that a person is innocent until declared guilty by
a competent court of law.
•There are inadequate provisions on
the supervisory functions of the Judiciary over the activities of law
enforcement agencies in relation to investigation and prosecution of
terrorists.
•The Act is reactive and not
proactive. There are no provisions to prevent people from turning to terrorism
by tackling the factors or root causes of terrorism such as economic deprivation,
employment, religious extremism and radicalisation.
•The Act is silent on the
responsibility of government to protect Nigerians and other inhabitants of the
country from terrorist attack. It does not reflect enough commitment from the
government on how to reduce the vulnerability of Nigerians to attack through
improved security of borders, transport and critical Infrastructure.
•The Act makes no provision on how to
manage and minimise the consequences of terrorist attacks, by improving
capabilities to deal with it and how to promptly respond to the immediate and
long term need of victims.
•The only court with jurisdiction over
terrorist related offences is the Federal High Court. Considering the present
congestion of the Federal High Court and the number of years it takes to get
judgment under the present Nigerian Judicial system, one would have expected
that provisions would have been made in the Act, enabling the creation of
courts specifically for trial of terrorists and terrorism related matters.
In
view of the above mentioned inadequacies of The Nigerian
Terrorism (Prevention) Act, 2011 in the prevention ,investigation,and
prosecution of terror suspects, it Nigeria can gain from other legal
jurisdiction with better legal framework in the field of terror prosecution.
But then, what are the legal framework regulating the application or
enforcement of foreign judgements in Nigeria.
APPLICATION
OF FOREIGN JUDGMENT IN NIGIERIA
Two
schools of thought have emerged over the years as rationalization for the
recognition and enforcement of foreign judgments1. These are the
theories of reciprocity and obligation.The theory of reciprocity
posits that the courts of country X should recognise and enforce the
judgment of country Y, if and only if, country Y is prepared to offer similar
recognition and enforcement to the judgments of country X. The doctrine of obligation,
on the other hand, came into prominence in the 19th century and was
put forward by Blackburn J. in Schibsby v. Westenholz as follows:
"We think that … the
true principles on which the judgments of foreign tribunals are enforced in
England is … that the judgment of a court of competent jurisdiction over the
defendant imposes a duty or obligation on the defendant to pay the sum for
which judgment is given, which the courts in this country are bound to enforce;
and any thing which negatives that duty, or forms a legal excuse for not
performing it, is a defence to the action."
Legal
Regime Regulating Enforcement of Foreign Judgments in Nigeria
There are two statutes regulating
enforcement of foreign judgments in Nigeria which are The Reciprocal Enforcement
of Foreign Judgments Ordinance, Cap 175, Laws of the Federation of Nigeria and
Lagos, 1958 ("the 1958 Ordinance) (this Ordinance was enacted in 1922
as L.N. 8, 1922) and The Foreign Judgments (Reciprocal Enforcement) Act, Cap
152, Laws of the Federation of Nigeria, 1990 ("the 1990 Act’) (enacted
in 1961 as L.N.56,1961)
There
has been some confusion among lawyers, with regard to the determination of
which law regulates the registration of foreign judgments in Nigeria and as to
whether a 1922 Ordinance is still applicable. However, this controversy has
been laid to rest by recent Supreme Court decisions establishing that the laws
generally applicable to proceedings for the registration of foreign judgments
in Nigeria are the Reciprocal Enforcement of Judgments Act, 192211,
(hereinafter referred to as “the 1922 Ordinance”) and the Foreign Judgments
(Reciprocal Enforcement) Act, 1961 (hereinafter referred to as “the 1961 Act”).
See generally Macaulay v. R. Z. B. Austria
The
1922 Ordinance was promulgated as Ordinance No. 8 of 1922 to facilitate the
reciprocal enforcement of judgments obtained in Nigeria and the United Kingdom
and other parts of Her Majesty‟s Dominions and Territories under Her Majesty„s
Protection. It came into operation on the 19th of January, 1922.
The 1922
Ordinance is applicable to all judgments of superior courts obtained in the
United Kingdom. ThisThis was the first Federal law governing the registration of
foreign judgments in Nigeria.
The 1961 Act came into operation on the 1st of February, 1961 by
an act of Parliament and is applicable to judgments obtained in all foreign
countries and not just Commonwealth countries. It is significant to note that
the 1961 Act, did not repeal the 1922 Ordinance rather it complemented it. The
implication of this is that the 1922 Ordinance is still applicable to judgments
obtained in the United Kingdom and to parts of Her Majesty‟s dominions to which
it was extended by proclamation under Section 5 of the Ordinance before the
coming into force of the 1961 Act.
In summary, whilst it can be said that the 1922 Ordinance is still
the law regulating the registration and enforcement of foreign judgments
obtained in United Kingdom and parts of her Majesty‟s dominions, the 1961 Act
generally deals with the registration of judgments from all foreign countries,
including those that the 1922 Ordinance is not applicable to. It should be
noted that once a foreign judgment has been registered by a Nigerian Court, it
becomes a judgment of the Nigerian Court and is enforceable as such.
Based on the applicable law governing the registration of foreign
judgments as established above, the procedure for registration of foreign
judgment is spelt out in the Rules of Court made pursuant to Section 6 of the
1922 Ordinance which provides that it shall be upon a petition made ex-parte
or on notice to a Judge. Where the said petition is made ex-parte,
the Judge may direct notice to be served on the Respondent or Judgment debtor
as the case may be. Once the Court is satisfied with the petition of the
Applicant or Judgment Creditor, the Court shall register the judgment and an
order to that effect is drawn up.
“It is significant to note that the 1961 Act did not repeal the
1922 Ordinance, rather it
complemented it. The implication of this is that the 1922
Ordinance is still applicable to judgments obtained in the United Kingdom and
to parts of Her Majesty‟s dominions to which it was extended by proclamation
under Section 5 of the Ordinance before the coming into force of the 1961 Act.”
When the said order is made upon a petition on
notice the order shall be served on the Respondent or Judgment Debtor. Where
the order is made upon an ex-parte petition, there is no provision in the rules
that the same shall be served on the Judgment debtor. Finally, the rules also
require the order granting leave to register the foreign judgment to state the
time within which the Judgment Debtor is entitled to apply to set aside the
registration which is also by way of petition to a Judge.
What Judgments are
Registrable
In
order for a foreign judgment to be enforceable in Nigeria, it must be
pronounced by a superior court of the country of the original court. This
applies to both civil proceedings (including awards in arbitration
proceedings) and judgments given in criminal proceedings for the payment of
money in respect of compensation or damages to an injured party.
To qualify
for registration, the foreign judgment must be a money judgment..
The judgment must be for a sum certain. A sum is sufficiently certain for this
purpose if it can be ascertained by a simple arithmetical process.
Additionally,
the judgment must be final and conclusive as between the parties
thereto.10 In other words, it must settle the rights and liabilities
of the parties so as to be res judicata in the country in which it was
given. As Lord Herschell put it:
"It
must be shown that the court in which it was produced, it conclusively, finally
and forever established the existence of the debt which it is sought to be made
conclusive evidence in this country, so as to make it res judicata between the
parties."
Thus interim
or interlocutory and default judgments that do not finally and conclusively
determine the rights and liabilities of the parties are not registrable. Also a
judgment which is capable of being varied or rescinded by the court that
gave it is not registrable.
The
onus of proof that the judgment is final and conclusive is on the party who so
asserts. However, a judgment shall be deemed to be final and conclusive
despite the fact that an appeal is pending against it or that it may still be
subject to an appeal in the foreign country in which it was pronounced.
Similarly,
judgments of a non monetary nature such as declarations regarding
an existing state of affairs and injunctions either directing or
prohibiting a person from doing a particular thing (other than the payment of
money) are not registrable. Judgments directing payment of taxes, revenues and
penalties, judgments in criminal proceedings imposing terms of imprisonment or
fines are also excluded from being registered. A judgment shall also not be
registered if at the date of the application for registration the judgment has
been wholly satisfied (paid) by the judgment debtor or if the judgment could
not be enforced by execution in the original court. This will cover cases of
declaratory judgments which by their very nature are incapable of enforcement.
Effect of Registration of the Foreign Judgment
For
the purposes of execution, a registered judgment has the same force and effect
as the original judgment and proceedings may be taken on it. The judgment sum
carries interest, and the registering court has the same control over
execution, as if the registered judgment had been one originally given by the
registering court and entered on the date of registration.
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