Category: Law

With the exception of the 2015 election, every presidential contest since Nigeria’s return to democracy in 1999 has ben subjected to the post-election litigation. The candidates of the Peoples Democratic Party (PDP) and Labour Party (LP), Atiku Abubakar and Peter Obi, who came second and third in the February 25 presidential election, have continued that ‘tradition’. Lawyers, in this report by ERIC IKHILAE, examine the implications on democracy and the justice system.

Shortly after the Independent National Electoral Commission (INEC) announced the result of the February 25 presidential election, candidates of the Peoples Democratic Party PDP (PDP) and the Labour Party (LP), Atiku Abubakar and Peter Obi made public their objection to the election outcome and threatened to challenge it in court.

They followed this up by filing ex-parte motions on March 1 and 2 before the Presidential Election Petition Court (PEPC) sitting at the Court of Appeal in Abuja.

This, they claimed, was to enable them gather necessary evidence in the prosecution of the petitions they planned to file.

On March 3, the court granted them permission to inspect materials used by the Independent National Electoral Commission (INEC) for the conduct of the February 25 presidential election.

By this step, Atiku and Obi have effectively ignited the 2023 post-election litigation process, a practice that has since assumed the status of a seasonal ritual in the nation’s electoral process.

This is because, with the exception of the 2015 election, every presidential contest held in the country since the re-establishment of democracy in 1999 had been subjected to the post-election litigation process.

Legal basis for post-election litigation

According to experts, the post-election litigation process is considered as part of the electoral system.

It is created to enable aggrieved candidates in elections to ventilate their grievances with the hope of obtaining redress.

It finds basis in the nation’s law that created it and spelt out its procedures and scope.

In Nigeria, the post-election litigation process takes place at the various tribunals created by the Constitution and regulated under the Electoral Act.

Section 285 of the Constitution provides for the establishment of election tribunals, while Part 8 of the Electoral Act 2022 (in sections 130 to 140) provides for the procedure for the determination of election petitions arising from elections.

Section 130, which deals with “proceedings to question an election,” provides (in sub-section 1) that: “No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue ulection or undue return (in this Act referred to as an ‘election petition’) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”

It further provides (in sub-section 2) that: “In this part, ‘tribunal or court’ means – a) in the case of presidential election, the Court of Appeal ; and

(b) in the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act.”

It equally provides (in sub-section 3) that “the election tribunals shall-

(a) be constituted not later than 30 days before the election ; and

(b) when constituted, open their registries for business seven days before ehe election.”

Sections 131 to 140 deal with issues relating to the establishment of Area Council Election Tribunal; establishment of Area Council Election Appeal Tribunal; persons entitled to present election petitions; grounds of petition; certain defects not to invalidate election; nullification of election by tribunal or court; effect of non-compliance; person elected to remain in office pending determination of appeal; legal representation of INEC, and the rules of procedure for election petition.

History of post-presidential-election litigation in Nigeria

1999

The seed of post-election litigation in the Fourth Republic Nigeria was planted in 1999 when the candidate of the opposition party challenged the outcome of the presidential election held on February 27 that year.

Two candidates contested the election, although three parties were cleared by the outgoing military regime headed by General Abdulsalami Abubakar to contest the 1999 general elections.

The three parties were the Peoples Democratic Party (PDP), the All Peoples Party (APP) and the Alliance for Democracy (AD).

While the PDP fielded Olusegun Obasanjo as its candidate, the APP and the AD jointly presented Olu Falae as their candidate on the platform of the APP.

At the end of the election, INEC declared Obasanjo the winner, a decision Falae and APP/AD challenged, claiming, among others, that Obasanjo was not eligible to run in the election and that the PDP candidate won through monumental electoral fraud.

In its judgment in April 1999, the Court of Appeal in Abuja dismissed Falae’s case on the grounds that he failed to prove his allegations.

Another petition against Obasanjo’s election in 1999 filed by Chuba Egolum was dismissed for lacking in merit.

 Egolum, who described himself as a concerned citizen, had petitioned the court, seeking the nullification of results of the February 27 election, on which basis Obasanjo was declared winner by the electoral umpire.

2003

Four years later in 2003, Obasanjo, as incumbent, contested for a second term in the presidential election of April 19, 2003. He was declared winner by INEC.

Some candidates in the election, including now President Muhammadu Buhari (who was the candidate of the ANPP; Chukwuemeka Odumegwu Ojukwu (who flew the flag of the All Progressives Grand Alliance – APGA), and Mohammed Dikko Yusuf (who ran on the platform of the Movement for Democracy and Justice – MDJ) challenged the result.

In their decisions, both the trial tribunal at the Court of Appeal and the Supreme Court held in favour of Obasanjo and the PDP in the petitions by Buhari, Ojukwu and Yusuf.

In its judgment on July 2, 2004 in the Ojukwu case, a seven-member panel of the Supreme Court described the appeal as “an attempt to trivialise the judicial process.”

2007

In 2007, the candidate of the PDP, Umaru Yar’Adua (now late) was declared winner of the presidential election.

The election was promptly challenged by Buhari (who, again, ran on the ticket of the ANPP); Atiku Abubakar (who was the candidate of the Action Congress – AC), and Ambrose Owuru of the Hope Democratic Party (HDP).

The tribunal, in its judgements on February 26, 2008, dismissed the petitions against Yar’Adua’s election.

Justice James Ogebe, in the lead judgment on the petitions by Buhari and Atiku, held that “since the two consolidated petitions have failed, Umaru Yar Adua and Goodluck Jonathan (the Vice President) remain validly elected.”

The decision was upheld by the majority decision in the split judgment of four-to-three rendered by the Supreme Court on December 12, 2008.

In his final pronouncement, Justice Niki Tobi, in the lead majority decision, said: “The President and Vice President remain the President and Vice President of this country.”

2011

The presidential election was held in 2011 on April 16 with President Goodluck Jonathan of the PDP running against a number of candidates from other parties, including Buhari (who ran on the platform of the Congress for Progressive Change – CPC) and Nuhu Ribadu (who was the candidate of the Action Congress of Nigeria – ACN).

When INEC eventually declared Jonathan the winner of the election, the other candidates protested.

Buhari, whose running mate was Pastor Tunde Bakare, challenged the outcome of the election  to the Supreme Court and lost.

In a unanimous judgment given on December 28, 2011 by a seven-member panel, the Supreme Court found, among others, that Buhari and his party failed to prove their case.

Justice Olufunmilayo Adekeye, in her final pronouncement in the lead judgment, said: “The judgment of the lower court is affirmed and consequently the third respondent (Goodluck Jonathan) … won the election conducted on 16 April 2011.”

2015

The presidential election was initially scheduled for February 15, 2015.

But, owing to claims of insecurity in the Northeast and poor distribution of the Permanent Voter Cards (PVCs) by INEC, the election eventually held on March 28.

Buhari, who contested as the candidate of the All Progressives Congress (APC) was declared the winner of the election, defeating the incumbent, President Jonathan of the PDP.

The APC was a product of the merger between the ACN, the CPC, the ANPP and APGA.

And for the first time in many years, the Presidential Election Petition Tribunal recorded no petition filed against the APC’s victory in the 2015 election.

2019

The case was different in 2019 following President Buhari’s victory in the presidential election held on February 23, 2019.

The main challenger, Atiku, who ran on the platform of the PDP, contested the outcome of the poll up to the Supreme Court and lost.

The Supreme Court, in a unanimous judgment on October 30, 2019 held that the appeal by Atiku, marked: SC/1211/2019 was without merit.

The apex court dismissed it and proceeded to affirm the earlier decision of the trial tribunal.

Incidentally, there has never been an instance where petitioners in the various presidential election disputations, before now, successfully proved their allegations.

The closest was in respect of the petition by Buhari against the outcome of the 2007 election.

The then ruling party and its candidate (PDP and Yar’ Adua escaped by the skin of their teeth, with the Supreme Court upholding the election by a split decision of four-to-three.

Effect of frequent litigation on the democratic process, judicial system

Lawyers, including Professor Yemi Akinseye-George (SAN), Musibau Adetunbi (SAN), Dr. Chuka Ikedika, Dr. Daniel Makolo and Tunde Falola said the aggrieved candidates’ preference for the tribunals, as against resorting to unlawful measures, was commendable.

They suggested that effort should be directed at building a united, stable and prosperous nation for the benefit of all against dissipating energy and resource on endless litigation.

Prof. Akinseye-George said: “The siege is over. A new Nigeria is loading. No one has a monopoly of or magic wand for creating a new Nigeria. It must be a collective task. Let’s commit the heart of the President-Elect into God’s hands so that He will have compassion and remember the ordinary people.

“Our attitude to the election should be ‘no victor no vanquished’. We are all are winners: lovers of democracy.

“We are making progress albeit slowly. That’s what it means to have a population of over 200 million black people, mostly uneducated and unemployed. This ugly trend must be urgently reversed.

“Therefore, we appeal to the political gladiators-winners and losers respectively, there should be no place for gloating or bickering,” he said.

He added: “I humbly submit that it is high time we got back to the hardwork of genuine nation building.

“The  President-elect seems well prepared to lead. He has paid his dues. He has produced presidents, governors, ministers, and others not only in Nigeria but also beyond.

“He has the clout and sufficient support to renew hope. Let’s give him the benefit of the doubt. Let us think of what we can do to help change our country. Abusing others, litigating, or claiming unsubstantiated victory will not help.”

Prof Akinseye-George, who is the President of the Abuja-based Centre for Socio-Legal Studies (CSLS), commended the President-elect, Asiwaju Bola Tinubu for establishing a reconciliation committee, upon realising that the elections were flawed.

He noted that although a perfect election is an ideal that all Nigerians should all aspire to, the deployment of technology alone cannot work unless human beings make it work.

On claims by Atiku and Obi to have won the election, Akinseye-George wondered who has a better claim between them and Tinubu, bearing in mind that “each may have been rigged according to each candidate’s popularity in their respective strongholds.”

On the argument about the constitutional requirement for winning election in Abuja, he noted that the Constitution stipulates winning a minimum number of votes cast in 25 states and the FCT.

“Literally, that includes winning the FCT. But when that minimum is exceeded, FCT will be treated like just any state. That’s the golden interpretation of the provision.

“The Supreme Court had pronounced on the status of the FCT in Buhari v. Obasanjo. The case of Awolowo v. Shagari has venerated the concept of ‘substantial compliance’.

“That was at the behest of the then military dictator, General Olusegun Obasanjo! Dubious as that doctrine is, it has repeatedly been applied by the Supreme Court in countless cases.

“The country must not waste resources on conducting another presidential election which will still be disputed anyway. Whoever wins any rerun election will be disputed.

“Our politicians are bad losers. Our INEC will not be manned by angels, but by fellow flawed Nigerians. Whatever the court decides, there will still be skeptics who will accuse the court wrongly or rightly. The judges are also Nigerians.”

Akinseye-George, who asked that Nigerians put the last presidential election behind them, suggested that Obi and his running mate should lead a strong opposition.

“They still have a good chance of winning the Presidency in the future. Luckily the supporters are mainly young people who, hopefully, now better understand the power of the voter’s card. And also better appreciate the need to connect with all shades of opinions.

“The most important task for us as Nigerians is to secure the country and get the economy moving again. We need unity, peace and security. Let the hard work begin.

“May the President-elect disappoint those who think he lacks the capacity to govern as President. Let the work begin in ernest.

“Nigeria is greater than all of us. Let’s stay united and committed to a better future. A new Nigeria is possible,” Prof Akinseye-George said.

Adetunbi argued that the seeming agreement by Atiku and Obi to challenge the outcome of the election amounted to “medicine after death.”

He added: “Why did they fail to collaborate before the election? They couldn’t agree when it mattered most.

“The fact that they could agree now shows desperation not wisdom. Could the two of them have won the election at the same time? Was the election perfect in any part of the country?

“The law says an election conducted by INEC should comply substantially with the law, this election did,” Adetunbi said.

Makolo said: “Going to the tribunal is a welcome development. This is because the laws will be tested and enriched by that.”

He said because the outcome of the last presidential election has raised “very fundamentally challenging legalities at the public arena, requires that the issue is submitted for judicial examination at the tribunal.”

Falola, who is equally based in Abuja, said the decision by Atiku and Obi to challenge the outcome of the election at the tribunal was a welcome development.

He added: “If not for anything, it shows that they have decided to toe the path of civilisation rather than instigating their supporters to engage in violent demonstration and protest that may snowball into full blown anarchy, the consequence of which nobody can predict.

“Be that as it may, it remains a mystery how the duo intend to achieve victory at the tribunal, given the fact that they are both claiming to have won the election.

“If this is anything to go by, definitely, something is wrong somewhere. This is because, it is not possible for two political parties to win an election at the same time.

“Flowing from the foregoing and without prejudice to their right to challenge the outcome of the said election, I doubt if there is going to be any meaningful outcome from the litigation,” Falola said.

Ikedika noted that while their resort to the court would help develop the law and legal system in relation to election litigation, it has constituted an additional burden to the overburdened judicial system.

He argued that, while the simultaneous claim to victory by Atiku and Obi betrays an element of desperation, they are within their right under the law to challenge the outcome of the election at the tribunal.

Ikedika suggested that efforts should be intensified to ensure that the electoral umpire is well equipped to always conduct free, fair and credible elections.

‘Don’t allow judges determine who becomes President’

But a former Senate President, Ken Nnamani, pointed out the implications of politicians always running to court after every election.

He said by not accepting the results of the election, they are handing over power to judges to decide who rules the country

Nnamani spoke in Abuja on February 21, at the inaugural meeting of the National Coalition for Peace and Unity as the national chairman of the group.

He said: “I know people will dispute the results but there should be people that should advise that we should not allow two, three, five judges to determine who rules us, we should obey the outcome of the ballot box.”

One of the most keenly contested debt recovery cases, which resulted in the withdrawal of the silk rank of Ecobank’s lawyer Kunle Ogunba (SAN), has finally been decided by the Supreme Court. It ordered Honeywell Group to pay Ecobank N5.5 billion debt and N3 million costs. Deputy News Editor JOSEPH JIBUEZE reviews the case.‘

It was a debt recovery case like no other. The legal battle, which extended beyond the courtrooms, was fierce and full of intrigues. The lawyers gave their all in defence of their clients.

It was also a clash of legal giants. A former Nigerian Bar Association (NBA) president and Chairman of the Body of Benchers, Chief Wole Olanipekun (SAN) and his son Olabode, also a SAN, represented Honeywell Group.

Corporate and commercial law practitioner Kunle Ogunba (SAN) and Divine Agbua, both of Insolvency Forte, represented Ecobank.

In 2015, the bank sought to recover N5.5 billion debt from Honeywell and its sister firms – Anchorage Leisures Ltd and Siloam Global Ltd.

But, the three companies sued, claiming to have paid N3.5 billion in final settlement of their indebtedness to the bank.

They urged the court to declare that “having paid the sum of N3.5 billion in cumulative settlement of their total outstanding indebtedness” of N5.5b to Ecobank, “they owed no further debt obligation” to the bank.

They also urged the court to hold that Ecobank was obliged to issue letters of discharge to release collaterals by which the prior indebtedness was secured.

The three firms prayed the court to compel Ecobank to “update” their status on the “Credit Risk Management System Portal of the Central Bank of Nigeria.”

During the trial at the Federal High Court in Lagos before Justice Mohammed Idris, who was later elevated to the Court of Appeal, Honeywell Group chairman Dr Oba Otudeko testified.

He informed the court that his companies owed Ecobank individually, but that the debt had been repaid.

He said the firms jointly negotiated with the bank on the repayment terms.

Honeywell Group’s Head of Treasury and Finance, Oluwakemi Owasanoye, also told the court that by an agreement reached at a meeting on July 22, 2013, the bank agreed to merge the collective indebtedness of Honeywell’s three subsidiaries, which amounted to N3.5billion.

Owasanoye added that part of the agreement was that N500 million must be paid immediately, while the balance of N3billion would be paid before the exit of the Central Bank of Nigeria (CBN) examiners from the bank.

She said Honeywell complied with the terms of the agreement and thereafter wrote to inform the bank of its compliance and the need for the bank to formally discharge the company of any further obligation.

Honeywell, she said, was surprised when the bank proceeded to demand further payments in respect of the debt which had been fully liquidated for over a year.

Ecobank’s position

Ecobank had argued that an agreement was reached between it and the three firms on July 22, 2013, “for a definite settlement of N3.5billion to be paid in terms of N500million immediately and the balance of N3billion before the exit of the CBN examiners from” Ecobank’s offices.

The bank argued that the repayment agreement period was for six months.

It had rejected Honeywell and its sister companies’ request to “pay the balance over a one-and-half-year period in three equal half-yearly instalments.”

The bank contended that the debt repayment agreement “lapsed in August 2013.”

Ecobank insisted that in paying the N3.5 billion, the firms did not comply with the terms of the agreement.

It contended that the firms breached the agreement that the money would be paid before the end of August 2013 when CBN examiners, who were in the bank to examine its books, would leave.

High Court decides in Honeywell’s favour

On May 31, 2019, Justice Ayokunle Faji, who took over the case, held that Honeywell Group was not indebted to Ecobank.

He held that Honeywell’s payment of N3.5 Billion between 2013 and 2014 constituted the full and final settlement of its indebtedness to the bank.

Dissatisfied with the verdict, Ecobank appealed through Ogunba.

Intrigues, drama during trial

 The hearings were always exciting for court observers as the SANs passionately displayed their mastery of advocacy and the law.

In December 2015, Ecobank secured an ex-parte application restraining Dr Otukedo, the company’s directors and others from withdrawing from any bank or financial institution.

Honeywell later initiated contempt proceedings against Ecobank. It accused the bank of disobeying an earlier directive by Justice Idris that all parties should maintain the status quo.

In a related case before Justice Okon Abang of the same court, Ecobank, on October 16, 2015, filed a motion ex-parte for an order restraining Siloam Global Services Limited and Dr. Otudeko from operating or dealing with funds in any bank or financial institution pending the determination of the motion on notice for the appointment of a provisional liquidator or interim receiver.

The bank also sought an order directing and compelling all the banks and financial institutions in which Siloam Global Services and Otudeko have accounts, to furnish Ecobank with their details.

On February 15, 2016, Justice Idris struck out Honeywell’s contempt charge against Ecobank, holding that Form 48 and Form 49 (with which contempt proceedings are initiated) were not properly served on the alleged contemnors.

The judge said a party seeking to jail another for disobeying a court order was duty-bound to ensure that processes in contempt proceedings were duly served.

On April 1, 2016, the Court of Appeal dismissed the ex-parte order granted by Justice Yunusa.

Honeywell Group later sued Ecobank for N72billion damages over the alleged illegal ex-parte, claiming to have suffered losses while the order was in force.

Ecobank subsequently filed a winding-up petition before Justice Jude Dagat of the same court.

In the course of the case and many motions and counter-motions, Ecobank asked the then Chief Judge, Justice Ibrahim Auta, to withdraw the main case from Justice Idris and re-assign it to another judge.

The bank asked the judge to recuse himself as it no longer had confidence in him. But the judge refused.

Bid to dock The Nation reporter

The case took another heated twist on November 20, 2016, when Justice Idris refused an application by Olabode Olanipekun to dock this reporter over his story on the case.

Olanipekun urged the judge to send this judiciary reporter to the dock so he can disclose the source of his report on Ecobank’s letter to the CJ asking that the case be reassigned.

He said: “We only got a hint of that application by a publication in The Nation of November 15, 2016, in an article authored by one Joseph Jibueze. Coincidentally, he is in court. I take this issue very seriously.

“I refer to the National Judicial Council (NJC) policy on complaints against judicial officers. Sections 2.2.4 to Section 2.2.9 bar any party from leaking any allegation of judicial misconduct against any judge in the press.

“May I apply that Mr Jibueze comes into the dock to tell the court how he came about the story. Let him tell us the origin and how he came to know about it.”

Ogunba described Olanipekun’s application as “bizarre”.

He said: “This application is shocking. Mr Jibueze is not a party to this suit. On what basis will he enter the dock? Olanipekun has not cited any rule of procedure that allows that.

“Mr Jibueze did not report what was not in existence. I urge my Lord to discountenance my learned friend’s application.”

Justice Idris said: “I urge counsel to drop it. Let’s leave Mr Jibueze out of it. Let’s leave Mr Jibueze alone. Let’s leave Mr Jibueze and go to the substance. We’ll leave the press out of it. They’re doing their work.”

The judge said he would not be intimidated by any of the parties in the case.

He warned: “No matter how rich you are, you can’t influence Justice Idris – no matter how powerful you are.

“Keep your money in your pockets. Don’t come here with your money, I’ll not accept it. Keep your influence where they are, you cannot influence Justice Idris whoever you are. I’m saying it openly and I am declaring it.

“Let’s go to the issues. I’m prepared. Justice Idris is prepared. Ogunba SAN knows me very well in practice. So let’s leave the issue of Jibueze.

“Let’s go to the substance. We’ll leave the pressmen out of it. We do law in this court. Let’s talk law.”

Ruling on the application to recuse himself, Justice Idris said: “These issues are either for the appellate court or appealable issues and the defendant can exercise the right of appeal if it so desires.

“The application for the judge to recuse himself from this matter is most frivolous and it is refused.”

Ogunba filed a notice of appeal against the ruling as well as an application for a stay of proceedings pending the appeal’s determination.

Ogunba’s  rank stripped, restored

More intrigues were to come. On January 11, 2018, the Legal Practitioners’ Privileges Committee (LPPC) announced the withdrawal of the rank of Senior Advocate of Nigeria (SAN) from Ogunba.

It said Ogunba’s rank was withdrawn based on a petition by Honeywell Group alleging professional misconduct against him.

The company accused him of filing multiple suits against its subsidiaries before different judges of the Federal High Court on the same subject “with the deliberate aim of abusing the process of the court”.

LPPC’s decision came after the Nigerian Bar Association (NBA), in its August 5, 2016 response to Honeywell Group’s petition, cleared Ogunba of any wrongdoing.

NBA, in the letter signed by its then General Secretary Mazi Afam Osigwe, said after a careful reading of the petition, it was found not to disclose any alleged infraction of the Rules of Professional Conduct 2007 by Ogunba.

NBA said it was satisfied that the suits Ogunba filed for Ecobank did not amount to an abuse of court process.

It said the companies were separate entities and that the cases were not in respect of the same facts nor did they seek the same reliefs.

NBA listed the cases: Ekobank vs Honeywell Flour Mills Plc, Ecobank vs Siloam Global Services Limited, Ecobank vs Anchorage Leisures, and Ecobank vs Honeywell Group Ltd, among others.

“A careful examination of the court processes filed by parties at the various suits indicated differences in either parties or reliefs sought, which defeats your (Honeywell’s) allegation of abuse of court process,” NBA stated.

On September 20, 2018, the LPPC restored Ogunba’s rank.

“The Committee hereby allows the restoration of the rank of Senior Advocate of Nigeria on your person and the privileges of a Senior Advocate of Nigeria,” the LPPC stated.

Supreme Court decides case

The legal battle raged on at the appellate courts until finally decided by the Supreme Court.

In a judgment delivered on January 27, 2023, a five-member panel of the Supreme Court upheld Ogunba’s arguments and affirmed the judgment of the Appeal Court, Lagos which set aside the May 21, 2019 decision of the Federal High Court in Lagos.

In the lead judgment, Justice Emmanuel Agim held that Honeywell and its sister companies were indebted to Ecobank and must pay.

He held: “It is clear from exhibits A, A1 and A3 that the initial understanding of all the parties in the negotiation of 22-7-2013 was that if the appellants collectively paid N500 million to the respondent immediately that day and N3billion in a lump sum before the visiting CBN examiners left the bank, the respondent would accept the N3.5billion thereby paid as complete and final liquidation of their respective outstanding debts to the bank…

“It is clear…that the appellants opted out of the mutual understanding of payment of the N3 billion in lump sum as a condition for the respondent’s (bank’s) waiver of some of the debts.

“The appellants rather triggered a new negotiation by a proposal to pay it in three equal half-yearly instalments. It is glaring that the parties were unable to reach a consensus + (in agreement) on this proposal.

“The appellants’ assumption in their meeting of 12-12-2013 that some understanding was reached on the payment of the unpaid balance of the N3billion by further instalments was deflated by the respondent’s insistence that the appellants’ debts remain undischarged even after their payment of N3.5billion and that the concession to waive some of the debts lapsed in August 2013 when they failed to pay the N3.5billion in a lump sum.

“The negotiations did not create any legal relations between the appellants and the respondent…

“Therefore, no enforceable contract resulted from the negotiations as a contract cannot exist without an offer and acceptance of the terms of the offer.”

The Supreme Court held that Honeywell Group was under obligation to pay the debt to Ecobank.

Justice Agim added: “The respondent (Ecobank) being the owner of the money due as debts from the appellants (Honeywell and sister companies) can decide to waive its right to recover all the debts due to it from each appellant. But it cannot be compelled to waive its contractual right.

“If it refuses to waive the right or go ahead with the negotiation to secure its waiver of some of the debts, the debtor must pay all the debts that have accrued under the loan contract.

“A waiver must be clear, unequivocal and voluntary. Where negotiations have resulted in an agreement by a person to receive a sum of money lesser than what is due to him under a written contract, the agreement must be in writing.

“In the light of the foregoing, issue no. 3 is resolved in favour of the respondent (Ecobank).

“On the whole, this appeal succeeds in part in respect of issues nos 1 and 2 and fails in part in respect of issue no. 3.

“Accordingly, I hold that the appellants had the locus standi to sue and that the trial court had the jurisdiction to determine the suit.

“I affirm the judgment of the Court of Appeal No. CA/LAG/CV/975/2019 setting aside the decision of the trial court in Suit No. FHC/L/CS/1219/2015 granting the reliefs claimed by the appellants (Honeywell and others).

“I hold that the appellants’ claim at the trial court failed and is hereby dismissed.

“The appellants shall pay costs of N3 million to the respondent.”

In this piece, Wahab Shittu (SAN) writes on the conditions for granting application for bail

Abstract: Notably, If a person is arrested and charged with an offence, he is presumed innocent until proven guilty. By provision of section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) it provides thus: “Every person who is charged with criminal offence shall be presumed to be innocent until he is proven guilty.” Because he is presumed innocent, he can be released from custody until his court date if he makes a written commitment to appear in court, this is called bail. He may have to lodge money as part of his bail. The court can refuse bail, if it believes that he is likely to commit an offence while out on bail.

The court may not be satisfied with his promise to appear in court. It may decide that it needs valid, reliable and an independent surety to guarantee his appearance. An independent surety is a person who makes himself responsible for you coming to court. He promises to pay a sum of money to the court if you do not appear as agreed.The court can refuse the application if it is considered necessary in order to prevent the person from committing a serious offence while they are on bail.

Introduction: Bail is security given by the person into whose hands an accused is delivered. The person binds himself for the accused’s due appearance when required and if he fears the accused would escape, he has the legal power to deliver the accused to prison.The most important point for consideration in the grant of bail is best appreciated from the property of the continuous detention of an accused person. Essentially, the object of the detention of an accused person is to secure his appearance and to abide by the sentence of law, thus the principal inquiry is whether a recognizance would satisfy those ends. It is in seeking to answer this inquiry that the courts have evolved parameters for the exercise of discretion in that behalf.

One feature in the administration of justice system is the remand of an accused person who has been brought before a Magistrate. It is appropriate to appreciate that the competence of a Court to grant bail resides not in its competence to try the case but on the punishment prescribed by law.

AFAB AHMAD V. STATE OF UTTER PRADESH [1] ipso facto it is material to the judicial authority in that behalf. Accordingly, where a case is taken before a court that has no jurisdiction to mete-out the sentence allowed for the alleged offence the Magistrate would have no power to grant bail “Bail is deliver to persons who in the manner prescribed by law become security for his appearance in court: MEANING V. STATE 190 OKL.[2] imposition of heavy terms or excessive condition amounts to refusing bail, applicant can apply to higher court to vary conditions or terms wide.Personal liberty of a person can by S 35 of the 1999 Constitution be deprived upon reasonable suspicion of his committing an offence. Such deprivation must be provided by law.

In ISHAYA BAMAYI V. THE STATE [3] it was held that Criteria for granting bail are not exhaustive; they include evidence available against the accused, availability of accused to stand trial nature and gravity of the offence likelihood of committing another offence, likelihood of interference with course of justice, criminal antecedents, likelihood of further charge, probability of guilty, detention for the protection of the accused necessity of medical care. It is the essence that proofs of evidence filed by the prosecution by examined when considering bail. It is desirable where bail is refused to accelerate trial.

The guiding principles for granting bail recognized from the famous case of DANTATA V. POLICE [4] and the recognized conditions stipulated in S. 341 (2) CPC are not considered a matter within the entire initiative of the judge. Thus, where applicants had been on police bail and attended post arraignment proceedings at the Magistrates’ Court without failure for over two years, it was considered improper for the Court to import reasons of security to the refuse of application for bail of the accused.The propriety of Bail in Capital Offence:1990 Cr. L.J 1036 :AIR 1979 SC 136065, 120 P20, 980-981(2001) 4 S.C [Pt.1] 18 @ 38-7(1958) NRNLR 5 to EYU V. STATE (1988) 2 NWLR [Pt.75] 602

A person charged with a criminal offence punishable with death can only be admitted to bail by a High Court Judge.

The S.118 (1) CPL & CPA provide that a person charged with any offence punishable with death must not be admitted to bail except by High Court Judge. S 341(1) CPC is mandatory and disallows bail. The considerations for granting bail in S.340 and 341 CPC were stipulated as being to ensure attendance in Court and prevent interference with investigations in minor offences with respect to felony the additional consideration is to ensure the prevention of further offences S. 341(3) stipulates that a person accused of an offence punishable with death shall not be admitted to bail, by providing that notwithstanding preceding provision of the section. If it appears to the court that there are not reasonable grounds for believing that a person accused has committed the offence, but that there are sufficient grounds for further inquiries , such a person may pending such inquiry be admitted to bail.

Court will decline bail where prosecution is for crime of the highest magnitude with a punishment that is the highest known to law with evidence in support of the charge being strong: MUSA & ORS V.COP [5] Court will only under very peculiar or coercive circumstances interfere to grant bail in indictment for murder, the Court should look at the materials placed before it and not just perfunctorily from the charge sheet refuse bail, the duty of the court is to satisfy itself that the applicant’s continued detention of an innocent person should be scrutinized where prosecution merely parades the word murder without trying it with the offence, a court is bound to grant bail, the only way to intimidate the court not to grant bail is to prefer an information and proofs of evidence to show that there is prima facie evidence of commission of the offence MUSA & ORS VS. COP[6]5. (2005) ALL FWLR (Pt.243) 766 & C.A6. (2005)All FWLR[Pt.243] 766 785 @ C.A

In GAYE (NO 1) V. THE STATE (NO1)[7] an experienced legal practitioner of long standing and a former police officer, stood as surety and thus secured bail in the sum of Three Million for one Alexander Beck, the managing director of a limited liability company, at the material time, being investigated by the special Fraud Squad for Tax evasion who had absconded from the jurisdiction and jumped bail. Consequently, upon forfeiture of recognizance the HC entreated the full bail bond. On the contention that there was no viable legal charge to which Book as the Managing Director of MSG Ltd should answer and that the bail bond and the order for forfeiture based it had been vitiated by its failure to lay a specific charge. The CA observed from authorities that courts will not presume the existence of facts which are central to an offence.

Thus in DILLION V. R. the factum of detention as raising a presumption that the prisoner’s detention was lawful ommia praesumntur rite et solemniter esse acta donec probetur in contrarium was rejected. Accordingly, a Jamaican constable charged with negligently permitting two prisoners to escape succeeded on appeal to the JCPC. It held that it was a necessary prerequisite of the offence of permitting a prisoner to escape succeeded on appeal to the JCPC. It held that it was a necessary prerequisite of the offence of permitting a prisoner to escape from lawful custody, that the prisoner‘s detention in custody should have been lawful. However, Francois in GAYE (NO 1) V. THE STATE observed from evidence available when the bond was esteemed that there was a triable crime and detention therefore proper Notably, it was held that exacting a recognizance is also a matter of judicial discretion, within the parameters of the law. Referring to BETTS V. ATTORNEYS GENERAL[9] that a Court could exercise discretion to estreat the whole bond how discretion should be exercised is of a general nature and guidelines in 7. [1997-2001] GR 240 @246, 254-58. [1982] AllER 1017 JCPC9. [1997-2001] GR. 262,

R. V. SOUTHAMPTON [10] Justices Exparte Green, were followed in terms of the extent of the surety’s fault whether there had been connivance, whether the surety had aided and abetted the accused ‘s disappearance and whether there had been such conduct that would require the forfeiture of a whole sum, if the surety was wanting in due diligence to secure the accused’s appearance, whether it might be proper to forfeit the whole or a substantial part of the recognizance depending on the degree of fault, in cases where the surety was guilty of no want of diligence and used every effort to secure the appearance of the accused whether it might be proper to remit entirely (but not necessarily) the whole sum but such entire remmital would only be appropriate in wholly extreme and exceptional cases, a recognizance being a civil debt should be treated no differently as a guarantee given on a civil contract and courts. The liability on the bond was reduced by half as the surety was stated not to have known the slippery character of the accused and the police was not exactly short of blame contributory.

Revocation of bail: In the event that a bail granted to an accused person is withdrawn or cancelled, the bail is said to have been revoked.Bail may be revoked if an accused person jumps bail or violates one or more conditions of the bail term.An accused is said to jump bail where he/she fails to attend court on any date fixed in the bail agreement. Once the bail is revoked, the accused will be re-arrested.

Unlawful detention in Nigeria: An unlawful detention occurs when a person’s right to personal liberty is restricted without following the legal process. This includes:Detentions that are unreasonable, inappropriate or lack legal justification. This refers to grounds or reasons for detention we looked at inDetentions that are not in accordance with national law.10. (1976] QB 11 CADetentions in which due processes of law is not followed and your rights described below are not respected.

2.5 Rights of an Accused person in detention: When in detention, the police or agency that is holding you must respect the following rights which are enshrined in the Nigerian Constitution:

2.6 Right to Life: no one shall be deprived intentionally of their life, except in execution of a court sentence in respect of a criminal offence of which they have been found guilty in Nigeria

2.7 Right to dignity of person: On no account should pre-trial detainees be tortured or be subject to inhumane or degrading treatment. Also, they cannot be subjected to forced labour.

2.8 The right to be presumed innocent until proven guilty: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

2.9 You do not have to write a statement, or say anything while in detention:  Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.

3.0 You have a right to consult with your lawyer privately: this includes the right to defend himself or be represented by counsel during trial.

3.1 Law enforcement must inform you of the facts and grounds for your detention: this should be in writing within twenty-four hours; and in a language that you understand.

3.2 You must be taken before a court within 24 hours of your arrest, and in circumstances this proves to be reasonably impossible – within 48 hours: Any period exceeding one or two days may constitute unlawful detention.  However, the court has the discretion to determine the reasonableness of the length of detention based on facts/circumstances of each case.

3.3 The police must charge you with an offence within the period of 24hrs or 48hrs: If they fail to charge you, you must be released on bail except for cases where you are suspected to have committed capital offences such as murder or armed robbery.

3.4 The right to adequate time and facilities to prepare for a defence: In cases where bail is denied due to the nature of offence, the pre-trial detainee must be allowed adequate time and facilities to prepare for his defence. This includes having pre-trial interviews with a lawyer.

3.5 Time limits for detention: If you are detained without bail, you must be tried within a period of two months from the date of your arrest. If you are detained with bail, you must be tried within a period of three months from the date of your arrest. If the above deadlines are not meet and there are no further proceedings brought against you, you must be released either unconditionally or upon such conditions as are reasonably necessary to ensure that you appear for trial at a later date.

3.6 Except in certain exceptions, you can apply for bail at the police, or apply for court bail once you have been brought before a court. Bail is free.If these rights are not respected, your detention will be unlawful

3.7 CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR[11] – A man was detained for a period of three days without reasonable cause for the delay. The arrest and detention was deemed unlawful by the appeal court.

3.8 BEEIOR ISHENGE v. COMMISSIONER OF POLICE, PLATEAU STATE & ANOR [12] – The Appeal Court held that the police violated the right to personal liberty of the appellant as guaranteed by Section 35 of the Nigerian Constitution when it failed to charge the appellant within the legal time frame.

3.9 The applicant may be held in detention for more than 2 days as an exception.  The only way this can happen is if the authority that accused the applicant of a crime asks a court for an extension and a court orders it, according to Section 293 of the Administration of Criminal Justice Act of 2015.  A person may be remanded in custody if:

4.0 The nature and seriousness of the alleged offence necessitates that you be kept in custody.

4.1 CHIEF IBRAHIM SALAMI v. PA JOSIAH OYEDIRAN OLAOYE & ANOR [13] – A person was detained for a period of three days without reasonable cause for the delay. The arrest and detention was adjudged unlawful by the Court of Appeal .

4.2 You can challenge an unlawful detention by using the Fundamental Rights Enforcement Procedure. To challenge unlawful detention successfully, you need the evidence to prove that you have been detained unconstitutionally or unlawfully.11 (2018) LPELR-47256(CA)12 (2019) LPELR-48390(CA)13(2018) LPELR-47256(CA)

.3 It is not the arrest and detention of a person on a reasonable suspicion of his having committed an offence that constitutes the violation of his fundamental right to personal liberty. It is the unreasonableness of the length of his period of detention that you must prove. The burden to prove this is on you.

4.4 It is important for you to state in clear terms the date and time of your arrest and the length of the period of your detention.Your evidence must reveal all necessary facts, particulars and ingredients revealing you have been detained unlawfully. The prosecution will have to prove that your detention was lawful.

4.5 Available Remedies for a person when detained unlawfully: You are entitled to remedies if the court holds that you were detained unlawfully. Section 35(6) of the 1999 Constitution states that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person.

4.6 The role of sureties in bail administration: A surety plays a huge role in bail agreement as the provision of sureties may be one of the conditions to fulfill in the process of securing the release of an accused.

4.7 Section 167 of the Administration of Criminal Justice Act states that a person given bail may be required to produce such surety or sureties as, in the opinion of the court, will be sufficient to ensure his appearance in court when required.

4.8 Obligation of a surety: A surety is a person who undertakes to take responsibility for a person accused of a crime not to violate the terms of their bail. In fulfilling the conditions for a bail, a surety may be required to provide security in form of money/properties known as bail bond in order to secure the temporary release of the suspect, and to guarantee that the accused will honour the terms of bail agreement by appearing in court when required, and fulfilling any other condition stipulated.

4.9 Rights of a surety: A surety or all sureties in a recognizance may apply at any time to discharge themselves from a bail agreement.

4.10 Thus, it is possible to stop acting as a surety for an accused person if you so desire. The implication of this is that the defendant will be re-arrested to find other sufficient sureties or meet some other conditions.

4.11 At the end of a trial a surety has a right to retrieve any money or security they may have deposited on behalf of an accused person as long as the accused person abides.

4.12 Section 165(3) of the ACJA states that the money or security deposited shall be returned to the defendant or his surety or sureties, as the case may be, at the conclusion of the trial or on an application by the surety to the court to discharge his recognizance.

4.13 The criteria that should guide the courts in deciding whether to grant or refuse an application for bail are well laid down by this court in numerous decisions of this court, particularly IN DOKUBO-ASARI V. FEDERAL REPUBLIC OF NIGERIA [14] The criteria to be followed in taking a decision in cases of this nature as laid down by this court include :  (i)      the nature of the charge; (ii)      the strength of the evidence which supports the charge; (iii)     the gravity of the punishment in the event of conviction; (iv)     the previous criminal record of the accused, if any;  (v)     the probability that the accused may not surrender himself for trial;   (vi)      the likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him; (vii)      the likelihood of further charge being brought against the accused; and (x)       the necessity to procure medical or social report pending final disposal of the case.

4.14 It follows, therefore, that a judicial officer saddled with the responsibility of exercising discretion is required to arrive at the decision in every case or situation based on the facts placed before him in the very case and apply the applicable law.

4.15 His decision is therefore likely to vary from case to case since the circumstances in each case may vary. The question of stereotype or strict application of the rule of judicial precedent would not be of importance.

4.16  Court is to cure an unintentional blunder in the circumstances of a case. in ADELEKE V. AWOLIYI [15] IT it was held that: “It is part of the duty of a judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action.”

4.17 The Supreme Court in the case of the STATE V. JOSHUA [16] (2013) 12 NWLR Pt. 1368, Pg 357 @ Para A-B Per Fabiyi JSC admonished judges to avoid sentiments in adjudication thus” A judex should avoid apparent sentimental adjudication. 14. (2007) ALL FWLR (PT. 375) 558; AT 572; AND BAMAYI V. THE STATE (2001) FWLR (PT, 46) 956 AT 984.15. (1962) 1 All NLR 260,  Per Ademola, CJF (as he then was) said at page 262:16. (2013) 12 NWLR Pt. 1368, Pg 357 @ Para A-B

4.18 He must call a spade by its real name not a shovel especially when a decision relates to a capital offence as herein The judicial power is conferred on the Court , it is intended to be used in deciding issues on genuine cases of controversies.

4.19 Nnamani JSC in IKEMI V. STATE [17] held that “ The power of Court to prevent abuse of court process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information, Court discloses as offence as he is anyway thinks.”See also CONNELLY V. DIRECTORY OF PUBLIC PROSECUTION (1964) AC 1254

4.20 It is trite that the Rules of Court are to be obeyed in all proceedings.Where a bail application is brought before the Court, the Court is enjoined, mandated or commanded to grant bail. This is in view of Section 35(4) of the 1999 Constitution.In G.M.ONWORAH & SONS CO. LTD. V. AFAM AKPUTA [18] it was held that “ Rules of Court are meant to be obeyed they are not made for the fun of it, they must be followed strictly, unless the Court is given discretion of it. They must be followed strictly unless the Court is given discretion under them. These rules bind all parties before the Court No party is allowed to choose when or which to obey and /or disobey”.

4.22 Conclusion: It is appropriate to appreciate that the competence of a Court to grant bail resides not in its competence to try the case but on the punishment prescribed by law. Notably, the object of the detention of an accused person is to secure his appearance and to abide by the sentence of law, thus the principal inquiry is whether a recognizance would satisfy those ends.17. (1986) 3NWLR (Pt. 28) 340 @357 Paras D-F18. (2010) 9 NWLR (Pt. 1200)Pg. 443.

In the past three weeks, the Economic and Financial Crimes Commission (EFCC) has been under attack for alleging disobeying the committal order issued against its Chairman, Abdulrasheed Bawa by a Kogi State High Court.

On February 6, Justice Rukayat Ayoola, ordered that Bawa be remanded in Kuje Prison for the next 14 days “until he purges himself of contempt” over his alleged disobedience to the court’s ruling of December 12, that restrained the commission from arraigning one Ali Bello.

Bello is a relative of Kogi Governor, Yahaya Bello.

This order came barely two months after Justice Chizoba Oji of an Abuja High Court ordered that EFCC chairman be remanded in Kuje Prison “until he purges himself of contempt” over alleged disobedience to a 2018 order in a Fundamental Rghts suit filed by former Chief of Operations, Nigerian Air Force (NAF), Air Vice Marshal (AVM) Rufus Ojuawo, mandating the anti-graft agency to return the plaintiff’s N40m and Sports Utility Vehicle (SUV) to him.

Aside the EFCC, other Ministries, Departments and Agencies (MDAs) of government have at one time or the other been accused of flouting court orders with President Muhammadu Buhari, Attorney General of the Federation (AGF), Abubakar Malami (SAN), and most recently, Governor of the Central Bank (CBN) seen as worse culprits.

Observers are worried that 22 years after the return to comsitutuonal democracy which gave supremacy to the rule of law; the executive arm of government was yet to purge itself of the rule of force synomimous with the military era. They believe that the government and its handlers were yet to realise that all inactions, inactions and reactions must embody  respect for, supremacy of and obedience to the law.

Although the EFCC in both instances said it filed for “Stay of Execution” of the contempt rulings, over 40 civil society organisations (CSOs) stormed the streets of Lagos to protest the non enforcement of the order against Bawa.

Demanding his sack and remand in prison custody as ordered by the court, the CSOs petitioned the National Assembly and accused Bawa of politicisation of the antigraft agency; disobedience of court orders, and infringement on the rights of Nigerians.

According to them, Bawa’s alleged penchant for disobeying court orders not in his favour posed a threat to the rule of law, insisting that he was supposed to have been remanded in custody as ordered by the judge pending his appeal.

The groups wondered how, Bawa, who according to them, had no respect for the rule of law nor believed in fair hearing would turn around to argue that he was not given fair hearing before his conviction for contempt.

“What we are agitating against is his disobedience of the courts and the brazen politicisation of the EFCC. The IGP should immediately effect his arrest in line with the court ruling.

“Before Bawa can appeal against a court order sending him to prison, he must obey the order first. This is settled in law.

“Recently, the Court of Appeal, Abuja Division, directed ASUU to first comply with an order of the National Industrial Court ( NIC) directing them to suspend their strike before their appeal could be heard.

“Also, just last week, the EFCC itself arrested Senator Nwabaoshi for refusing to go to prison after he was sent there by the Federal High Court. This is despite his appeal against his sentence.

“Appeal or no appeal, Bawa must report to Kuje prison. His appeal can’t be heard until he complies with the valid court ruling sending him to prison,” said spokesperson for the Transparency and Accountability Group, Ayodeji Ologun,

Sharing their thoughts on the issue, Senior Advocates of Nigeria (SANs), Olalekan Ojo and Abiodun Owonikoko noted that disobedience to any court order was an invitation to anarchy.

They however, emphasised that if the EFCC filed for stay of execution as they said, then, it was not out of place for Bawa to be out of custody because that ruling whether before the trial court or at the appellate court subsists.

Ojo said: “Government agencies must lead by example, they must show the way. I want to believe that before the High Court of Kogi State presided over by Hon. Justice Ayoola committed the EFCC Chairman to prison, My Lord must have been satisfied that the conditions precedent to the committal order have been satisfied.

“They must accord that order a presumption of irregularity until the contrary is proved. It is therefore very unfortunate, if it is true, that the EFCC deliberately disobeyed order of the Kogi State High Court. If a government agency does that, what do you expect the citizens to do?

“If this thing continues, nobody will feel inclined to obey order of court in Nigeria. So, it is not proper for the government to engage in any act of disobedience. If a court makes an order against you and you are not satisfied, appeal against that order.

“That was what EFCC did in a criminal case we conducted against them, the judge asked them to pay N124million to my client but they appealed. I must confess to you, the chairman of the EFCC is a gentleman and I have known him for so many years. He strikes me as a law abiding citizen of this country.

“I want to believe that something went wrong, perhaps, the order wasn’t brought to his attention. He is a young man and we are all proud of him.”

The learned silk also noted that there are instances where a court could be misled into issuing a contempt order like when the summons are not served on the alleged contemnor personally.

In his submission, Owonikoko noted that if indeed the EFCC filed for stay of execution, then, those expecting Bawa to be in prison were not speaking on point of law.

“A high court judgement is final within the context of that level of adjudication but it is not conclusive. If it is the subject of an appeal provided that steps are taken in-between that decision to have that order changed by the authority of either the very court that made it or a higher court.

“The same reason you must obey the order of the court that made it, is the reason you must respect the prerogative of the higher court to decide whether the order will be stayed or not.

“The only order you cannot stay in Nigeria, is an order of the Supreme Court because you cannot appeal to a higher authority than that very court.”