Eben Olufemi, a Senior Associate with Esher & Makarios, reviews four key judicial decisions of 2021 and their effect on precedence.

At the dawn of every new year, the preoccupation of many is to project what the year holds. This is typical of most human endeavours and concerns, where the new year is considered as an unknown and unchartered course. Lawyers do not necessarily have this concern. The future of the law is defined by, rather tied to its past. All thanks to the entrenched doctrine of stare decisis. Supposedly, there should be certainty in the law.

Once in a while, there is a break from the past or there is no precedent from the past. Such occasions present opportunities to set a new precedent to control the foreseeable future. This write up considers four of such moments in the Nigerian jurisprudential landscape in 2021.

 

Dr Stephen Adi Odey v Chief John Alaga & two others

Service of court processes has always been considered fundamental. Not just for the sake of it, but for the fair hearing dimension that non-service raises. Hence, the courts have been consistently reluctant in allowing service to be raised as a technical defence. The judicial mantra has been that the essence of service is notice. See: Akeredolu v Abrahams & Others (2018) 10 NWLR (Pt. 1628) 510, 539; Ajibola v Sogeke (2003) 9 NWLR (Pt. 826) 494, 524; and Mohammed v Babalola (2012) 5 NWLR (Pt. 1293) 395, 434.

In a sharp departure from the past, the apex court upheld an otherwise technical objection on service, refusing to impute service on counsel of originating appellate processes to the party. The court held that a Notice of Appeal, being an originating process, must be served personally.

The implications of this decision are far-reaching. Otherwise competent pending appeals may now be rendered defective if the Notice of Appeal was served on counsel. For prospective appeals, parties would have to be served personally to competently initiate the appeal process. It remains to be seen how this decision would apply to interlocutory appeals.

This decision of the Supreme Court is reported in (2021) 13 NWLR (Pt 1792) 1.

 

Dr Joseph Nwobike SAN vs Federal Republic of Nigeria

This decision underscores the sacrosanct provisions of section 36 (12) of the Constitution, forbidding vague criminal laws. The Supreme Court towed a consistent line by holding that the provisions of Section 97(3) of the Criminal Law of Lagos State cannot be a ground for a charge, as the offence prescribed thereby is not expressly defined.

The novel point lies in the crux of the apex court’s judgment, by which it held that the Economic and Financial Crimes Commission (EFCC) lacks the power to investigate and prosecute the offence of perversion of justice.

The court reached this conclusion by preferring the ejusdem generis rule in the interpretation of the provisions of section 46 of the EFCC (Establishment) Act. The investigative and prosecutorial powers of the EFCC have been clearly delineated by this decision.

The more serious implication of this delineation is that it has been tied inextricably to the competence of a charge being prosecuted by the EFCC. It also appears that the court now attaches a degree of significance to the investigation stage in the criminal justice process.

This is a clear departure from the past. See: Fawehinmi v IGP & 2 Others (2000) 7 NWLR (Pt 665) 481, 530; and Esabunor & Another v Faweya & 4 Others (2019) 7 NWLR (Pt. 1671) 316, 339.

This decision in SC/CR/161/2020 (delivered on 20 December 2021), is yet to be reported.

 

The Vessel MT Sam Purpose & another v Amarjeet Singh Bains & six others

This decision typifies the reverberating effects of section 254C of the Constitution. Prior to the constitutional alteration leading to section 254C, there was no doubt that claims for crew wages fell under the exclusive jurisdiction of the Federal High Court, by virtue of section 251 (1) (g) of the Constitution, section 2 (3) (r) of the Admiralty Jurisdiction Act and section 66 of the Merchant Shipping Act.

The introduction of section 254C, vesting exclusive jurisdiction in the National Industrial Court in express overriding terms, led to the debate as to whether the Federal High Court could still exercise jurisdiction in claims for crew wages.

The need for clarity became more obvious following the inconsistent decisions of the Federal High Court in the earlier cases of Moe O. O. & 27 Others v MV Phuc Hai Sun (unreported) – Suit Number: FHC/L/CS/592/2011 delivered on 20 June 2014 and Assuranceforeningen Skuld (Gjensidig) v MT Clover Pride & Another – (unreported) Suit Number: FHC/L/CS/1807/17 delivered on 28 March 2018. While in the former case, the court upheld the exclusive jurisdiction of the Federal High Court, in the latter case, the exclusivity of the National Industrial Court’s jurisdiction was upheld.

The Court of Appeal has now settled this jurisdictional debate by holding that the National Industrial Court has the exclusive jurisdiction to determine claims for crew wages. The court was emphatic on the prevailing nature of the provisions of section 254C as regards all labour and employment-related claims.

It is instructive that the decision in MT Sam Purpose is consistent with earlier decisions upholding the exclusivity of the jurisdiction of the National Industrial Court. See: John v Igbo Etiti L.G.A (2013) & NWLR (Pt 1352) 1; Sunday Ainabebholo v Edo State University Workers Farmers Multipurpose Cooperative Society & Others (2015) LPELR-24513 (CA); and First Bank of Nigeria PLC v Mr Nurudeen Ajani Akanji (2017) LPELR-43555 (CA).

Again, this decision of the Court of Appeal has significant consequences. The decision raises a fundamental jurisdictional issue in respect of matters already instituted at the Federal High Court. The law is trite that the issue of jurisdiction can be raised at any time, even for the first time on appeal and without leave. See: Shell Nigeria Exploration Co (Nig) Ltd v FIRS (2021) 17 NWLR (Pt 1806) 545, 575-576; NDIC v CBN (2002) 7 NWLR (Pt 766) 272, 294 – 295, 296; and Wema Securities & Finance v NAIC (2015) 16 NWLR (Pt 1484) 93, 123-124. 

Being so, the flood gates appear to have been flung open for jurisdictional challenges; more so until the Supreme Court gets the opportunity to finally settle the law on the point. This decision in Appeal Number: CA/LAG/CV/419/2020 (delivered on 5 March 2021) is reported in (2021) LPELR-56460 (CA).

 

Eyitayo Olayinka Jegede & Another v Independent Electoral Commission & 3 Others

This is a peculiar case, given the novelty of the constitutional grounds for challenging the sponsorship of the third and fourth respondents for election to the office of Governor of Ondo State. The second respondent’s letter submitting the names of the third and fourth respondents to the first respondent was signed by a sitting Governor as Acting National Chairman.

The legal contentions bordered on the constitutionality of the sponsorship, given the provisions of section 183 of the Constitution which prohibits a sitting Governor from holding any other executive office. If the sponsorship was unconstitutional, the 3rd and 4th respondents would not have been qualified to contest the election and their return would have been vitiated.

In deciding the issue, the apex court drew a distinction between the actual act of nomination and the formality of notifying the electoral umpire. The court also held the view that a finding of unconstitutionality would have serious consequences for the said sitting Governor, who was not joined as a party.

Despite the immunity provisions in section 308 of the Constitution, the apex court held the view that the petition was impaired by the absence of a necessary party, being the said sitting Governor. In dismissing the appeal, the court considered other issues, including holding that the sponsorship of the third and fourth respondents was admitted by the appellant.

This decision is novel in the resolution of the arguably recondite issues presented to the court. However, the decision was reached by a narrow majority of the Supreme Court. A close look at the dissenting judgment will suggest seeds for expanding the frontiers of the law on the issues raised.

It remains to be seen whether there will be further implications from this judgment, particularly for some of the parties (or actors) in a (dis)similar factual and jurisprudential context.

This decision is reported in (2021) 14 NWLR (Pt 1797) 409.

 

Conclusion

Every judgment is binding on the parties and constitutes precedent in subsequent cases, provided the facts are similar. See: Eze v Unijos (2021) 2 NWLR (Pt 1760) 208, 223-224; Ekwunife v Ngene (2000) 2 NWLR (Pt 646) 650, 668; Nwangwu v Ukachukwu (2000) 6 NWLR (Pt 662) 674, 689; and Buhari v INEC (2008) 19 NWLR (Pt. 64) 129, 137.  

Across the Nigerian judicial hierarchy, hundreds of decisions were pronounced in 2021. They all constitute precedents. However, the cases highlighted here are not only radical in their content but also in their effect. Certainly, they will define the judicial landscape in 2022 and beyond.

 

*Olufemi can be reached on ebunoluwa@esherandmakarioslaw.com

President Muhammadu Buhari reignited the decentralisation debate when on January 5 he wrote off state police as an option in addressing insecurity. His comments, a day after the exchange between Lagos State Governor Babajide Sanwo-Olu and a Chief Superintendent of Police from Abuja over a civil matter raised several concerns, including the potential for conflict of jurisdiction between local and federal law enforcement agencies. ROBERT EGBE reports. 

A bizarre incident occurred in the Indian state of Pubjab on January 5.

Prime Minister Narendra Modi was scheduled to travel by helicopter to the National Martyr’s Memorial at Hussainiwala and address a rally in Punjab’s Ferozepur.

But, following bad weather, his route was changed so that he had to go by road from Bathinda to Ferozepur.

In what was regarded as a major security lapse, Modi was trapped on a flyover for 20 minutes by protesters.

The ruler of nuclear-armed India, with one of the best militaries in the world and a population of over one billion people, was blocked by farmers demanding the resignation of a cabinet minister whose son has been accused over the deaths of one of them.

 

Policing intrigues

But that’s not the story.

The two main parties in India are the Bharatiya Janata Party, commonly known as the BJP, which is the leading right-wing nationalist party, and the Indian National Congress, commonly called the INC or Congress, which is the leading centre-left party.

Modi is a member of the BJP.

The government of Punjab, a state bordering Pakistan, is led by Congress.

India has both a federal and state policing system and larger cities like Punjab have police forces under their respective state police. But all senior officers in the state police forces and federal agencies are members of the Indian Police Service (IPS).

The flyover incident snowballed into a major political row with the BJP accusing the Congress-led Punjab government of putting PM Modi’s life at risk.

The state government and the Police denied any security lapse from their end, maintaining that all necessary security arrangements were made.

But on January 11, India Today published the report of its investigation which claimed that the police instigated or ignored the blockade.

The newspaper provided “evidence” purportedly showing the “Station House Officer” of the relevant Punjab police station telling the channel that he was asked “to block the crowd and roads” and “he carried out these instructions”.

It was reported that the video also purportedly showed some Punjab police officials telling the channel that they had informed their superiors about protesters blocking the route of PM Modi’s cavalcade but no action was taken.

These and other multiple versions of the incident are now the subject of a panel constituted by the country’s Supreme Court which will probe the entire episode.

 

Magodo affair

A day before the Modi incident, the trending news in Nigeria was the engagement between Lagos State Governor, Mr. Babajide Sanwo-Olu, the residents/property owners in Magodo Phase II Estate and a Chief Superintendent of Police (CSP) from out of town.

The CSP was said to have been sent from Abuja to lead the supposed execution/enforcement of a Supreme Court judgment on the embattled plots of land.

The incident followed years of contention over the lands and the judgment between the parties.

The officer informed Sanwo-Olu that he and other colleagues were there at the instance of the Inspector-General of Police, Usman Baba and Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN).

The governor and officials of the state were at the location to calm nerves of residents protesting the deployment of the security operatives from Abuja.

The CSP sent tongues wagging when he  declined a directive by the governor to stand down and inform the IGP of the intervention of Sanwo-Olu – the state’s chief security officer.

The governor pointed out that despite heading the state’s security architeture, he was kept in the dark of the IGP’s team’s visit. He noted also that so were the state’s police command and other security officials.

The land dispute, which is now being resolved, raised concerns about the problem of jurisdiction in the event of the establishment of state policing.

 

Limitations of chief security officer 

Several security experts have noted that Sanwo-Olu’s directive to the CSP, given in furtherance of any governor’s role as chief security officer, was not out of place.

The 1999 Constitution (as amended) seems to have appreciated the problems that are likely to be faced by the federating states operating without coercive powers, hence it allows state government to give lawful directives to the Commissioners of Police in charge of the state for the maintenance of public safety and order.

Lagos State, especially under Sanwo-Olu, is unarguably the biggest spender on policing in the country, perhaps after the Federal Government.

The governor on July 10, 2021 donated 150 vehicles, four high-capacity troop carriers, 30 patrol cars, and two anti-riot water cannon vehicles to the police as part of efforts to strengthen security responses across the state.

President Muhammadu Buhari personally took inventory and inaugurated the equipment before Sanwo-Olu handed them over to the Inspector-General of Police (IGP) for the use of Lagos Police Command.

The gadgets were procured through the Lagos State Security Trust Fund (LSSTF).

Sanwo-Olu said the investment in the security gadgets was timely, given the setback recorded in security operations occasioned by the violence that followed the EndSARS protests.

However, Okemuyiwa Adedeji, a PhD Research Candidate of the International Islamic University, Malaysia (IUM) noted several limitations of the role of a chief security officer.

Adedeji, in his thesis, “STATE POLICE IN NIGERIA: (Issues and Challenges)”, wrote: “The constitution makes no pretence as to whom really, is the overall boss of the Nigeria police. The proviso to section 215(4) is unoquivocal that a state commissioner of police shall be at liberty to refer a directive given by a state governor to the president before acting on it.”

He added that in Nigeria “where most government decisions are influenced by politics, a governor’s directive to the state commissioner of police” might easily be disregarded, just as occurred in the Magodo.

 

Bill for state police

The House of Representatives on July 6, 2021 took concrete steps toward settling the police decentralisation debate by passing for second reading, a bill seeking to amend the 1999 Constitution to allow creation of state police and legalise regional security outfits.

Under the proposed law, the current police system will be decentralised by moving police from the Exclusive Legislative List to the Concurrent List.

The Chairman of the House Committee on Judiciary, Onofiok Luke, who sponsored the bill, said in the explanatory note that the bill seeks to alter the Constitution “to provide for state police and other state government security services to enhance security and preservation of lives and properties in Nigeria”.

The bill especially proposes an amendment to Section 197(1) by inserting new Paragraphs ‘e’ and ‘f’ to provide for ‘State Police Council’ and ‘State Police Service Commission,’ respectively.

The Second Schedule to the Constitution will also be altered in Part I by deleting Item 45 from the Exclusive Legislative List; and in Part II by inserting after Item 30 on the Concurrent Legislative List, new Items 31 and 32.

The proposal reads, “(31) The National Assembly may make laws for the establishment of the federal police and other federal government security services;

“(32) A House of Assembly may make laws for the establishment of state police and other state government security services.”

The Third Schedule to the Constitution will also be altered by inserting new Paragraphs 9 to 12.

They are, “(9) A State Police Council shall comprise the following members: (a) the governor, who shall be the chairman; (b) the chairman of the State Police Service Commission; and (c) State Commissioner of Police.

(10) The functions of a State Police Council shall include (a) the organisation and administration of a State Police Force and all other matters relating thereto (not being matters relating to the use and operational control of the Force or the appointment, disciplinary control and dismissal of members of the Force); (b) the general supervision of a State Police Force; and (c) advising the governor on the appointment of State Commissioner of Police.”

Leading debate on the bill, Luke said: “Many years after independence, Nigeria has continually been beset with insecurity ranging from terrorism, kidnapping, armed robbery and domestic violence. Granted that there is no society without crime or manifestation of criminal behaviour, our inability to bring to the barest minimum, crime is a scathing indictment on the current security architecture and structure in the country.

“The federal structuring of our security does not encourage community policing or localisation of policing. Recruitment and subsequent deployment of police officers in their local area is one of the major ways of curbing crime. Such officers understand the area, terrain, language, behaviour and attitude of the people he or she is policing.

“Nigeria, a country with over 201 million people, is grossly under policed with about 400, 000 police personnel. This number falls far short of the United Nation’s recommendation of ratio 1 per 400 citizens.”

 

Buhari’s argument

President Muhammadu Buhari poured cold water on the police decentralisation argument in a January 5 interview on Channels TV.

Buhari said: “State police is not an option. Find out the relationship between local governments and the governors. Are the third tiers of government getting what they are supposed to get constitutionally? Are they getting it?

“Let the people in local government tell you the truth; the fight between local governments and the governors. No, I am not convinced. We should have solved the current insecurity in the North-East and South- South by now. Can the states be able to shoulder the burden of the police?

“You cannot just give someone guns and ammunition, train him, and refuse to pay him. You know what will eventually happen. The role of traditional rulers must not be undermined, because in their areas they know who is who, even by families, not to even talk of individuals. So, we have to revert to that system for us to have effective security in the localities”.

 

Opposition

The president’s position, apparently thought-provoking, is opposed by many experts and thought leaders, with many states and regions setting up security apparatuses working hand-in-hand with the police to check crime, such as the Amotekun in the Southwest.

Last Thursday, the President-General of  the Ohanaeze Ndigbo, Prof. George Obiozor, again called for state police, saying the present centralised policing system was inadequate.

According to him, the solution to the country’s securitys challenge was provided by the 2014 National Conference that recommended state police.

“We will not solve this challenge (insecurity) until we do this (have state police).

“It is not a luxury but a necessity that must be done and the earlier we do it, the better for us as a nation,” Obiozor added.

 

 

Resolving the jurisdiction problem

 

But if state policing must work, a template for solving jurisdiction conflicts, as exemplified by the events in Punjab and Lagos, must be resolved.

A former Managing Director of the Lagos State Security Trust Fund (LSSTF), Mr Fola Arthur-Worrey, weighed in on the problems and solutions.

Arthur-Worrey, a former Lagos State Directir of Public Prosecutions (DPP) backed the movement for state police.

He said: “At present, the national police is over-centralised and grossly underfunded by a central government that can barely fund most of its operations effectively.

“Indeed, in spite of the fact that the police now have their own trust fund, they still depend on the goodwill of states and donors to function, even though still sub-maximally.

“They are also reliant on vigilantes and local hunters groups, an indication of institutional failure. Indeed, the definition of the word ‘vigilante’ is a group of citizens who take on extra-judicial law enforcement in the absence of effective official law enforcement.

“So working with vigilante groups and other non-state actors is an admission of failure.

“Also, the central police operating in state jurisdictions often have different law enforcement agendas from the political authority within those states, and often are in actual conflict with such authority, claiming to be acting on ‘orders from above’. This is, for purists, a distortion of federal principles.”

 

A ‘complicated’ issue

Nevertheless, Arthur-Worrey told The Nation that the issue was deep.

He said: “Having said that, the issue of state police is a complicated one, and often works best in mature democracies where most of the state/federal conflicts have been resolved by negotiations, court judgments or time.

“Recently in India, where each state has its own police, there was great controversy when the prime minister’s convoy was blocked by protesting farmers and was stuck on a bridge for 20 minutes. It was alleged that the state police, which had responsibility for the general supervision and safety of the convoy, was acting politically since the state was under the control of the opposition Congress party.

“But such differences do not mean that people would argue against the existence of state police. The current system is overstretched, its officers not suited to local conditions and not committed to the safety needs of locals, most of them being non-residents, and there is no political accountability at state level for security failures, the sad myth of state governors being chief security officers, and the sadder myth of the existence of a so-called security vote notwithstanding.”

He argued further that like the Indian system, state police is an imperative to establish law and order at the local level, while federal police can deal with terrorism, interstate crimes and all crimes arising from matters on the exclusive legislative list, such as currency offences, sea ports and airports, firearms, and the like.

 

Resolving jurisdictional issues

On the potential for jurisdiction conflicts, Arthur-Worrey reasoned that “jurisdictional issues will be sorted out in the determining legislation by reference to the constitution, and any lingering disputes will be sorted out by the courts.

“Where a governor is inclined to abuse the state police, the house of assembly will exercise its powers of oversight to check him or her.

“Local matters such as traffic, public order, the enforcement of court orders and environmental offences will be the responsibility of state police along with all the state offences in the state statute books.”

 

Affordabilty

What happens where states can’t afford local policing?

Arthur-Worrey explained that this dhould be taken into account.

He said: “Of course, taking into account the capacity of each state to establish or not its own police service, the law on state police will not state that every state shall have a police service, but that any state that wishes to do so may establish such service.

“This is in cognizance of the fact that not every state would have the need, capacity or desire to establish such service. But for states with serious security, public order and environmental challenges, they should be given the right to have their own police.

“Already we have numerous quasi police squads such a LASTMA (Lagos State Traffic Management Authority) in Lagos and HISBAH (Kano State Hisbah Corps) in Kano. As for LASTMA, when it was clear that the police were overwhelmed by the challenges of traffic management, the state government had to create its own agency. State police is only a logical next step towards true federalism.”

 

Example from abroad

The United States has a federal police, 50 state police agencies, sheriffs’ departments in counties, police forces in 1,000 cities and 20,000 townships in New England towns, and police forces in 15,000 villages, boroughs, and incorporated towns, among others, according to the Encyclopaedia Britannica.

 

How US resolves jurisdictional conflicts

An American policeman and instructor Ken Klamar gave an insight on the issue in a lecture on study.com.

He said: “Many cities have clearly marked boundary lines that differentiate them from their neighbors. You will often see signs on the highway welcoming you to a city or into another state. Police jurisdiction, generally, is contained to the areas within the city limits where the police officer is sworn. A police officer who works for a particular city would only be authorised to enforce the law within the city limits. This is referred to as territorial jurisdiction.

“For example, a police officer who works for the city of Cleveland, Ohio is sworn to protect and serve within the city limits of Cleveland only. The city has no authority to grant jurisdiction outside of these limits. Therefore, a Cleveland police officer who would happen to be outside of the city limits would have no authority to make an arrest for many crimes and violations.

“Another example of jurisdiction is subject matter jurisdiction. This form of jurisdiction allows an agency to only investigate and make arrests for specific violations of law. For example, the Alcoholic Beverage Commission (ABC) oversees all sales, permitting, purchasing, manufacture and consumption of alcohol in North Carolina. Their agents, or officers, are tasked with enforcing violations and ensuring compliance with the law.

“However, these officers are only vested with the authority to make arrests and conduct investigations for alcohol-related violations. An officer working for the ABC would not have subject matter jurisdiction to investigate a fraud that took place at a convenient store that happened to sell alcohol.

“These officers are required to meet two criteria when enforcing alcohol violations.

“First, they have to meet subject matter jurisdiction requirements to ensure it is a violation of ABC law.

“Second, they have to meet territorial jurisdiction requirements to ensure that the violation falls under their area of assignment.

“What this means is that a North Carolina ABC officer could not investigate an alcohol violation in South Carolina.”

The office of the Attorney-General of the Federation (AGF) and Minister of Justice is a creation of the 1999 Constitution under sections 150(1) & (2).

The current occupant of the office is Senior Advocate of Nigeria (SAN) Abubakar Malami.

Malami was appointed by President Muhammadu Buhari in 2015 and is regarded as one of the key members of his cabinet.

However, almost since his assumption of office, many have raised eyebrows about his choice as the nation’s AGF following his office’s alleged role or lack thereof in some trending incidents.

Observers have argued that going by the controversies, Malami may become the most controversial AGF in the nation’s history.

Nevertheless, the Minister has remained resolute that he has always acted, as was expected of him, in the public interest.

The latest of such controversy was his intervention in the Magodo Estate, Lagos crisis over land ownership.

Malami’s involvement in the deployment of armed policemen from Abuja to the estate, ostensibly to execute a Supreme Court judgment had remained in the realm of conjecture until the police officer, who disregarded Lagos State Governor, Babajide Sanwo-Olu’s directives, told the world that he and his team were acting on the orders of Malami and the Inspector-General of Police (IGP), Usman Baba Alkali.

Speaking for his colleagues in the region the Southwest Governors’ Forum (SGF), Ondo State Governor Olurotimi Akeredolu, flayed the role of the AGF and the IG in the deployment of a police detachment.

Akeredolu, chairman of the Southwest Governors Forum in a statement said “the utter disrespect and response of the officer to the governor establishes, beyond doubt, the impracticability of the current system, dubiously christened “federalism.

“We condemn, in very clear terms, the role of the Attorney General of the Federation, Mr Abubakar Malami SAN in this act of gross moral turpitude,” Akeredolu said, adding that “We condemn, very strongly, this brazen assault on decency.”

The Southwest governors chairman called on the IG to “explain the justification for this intrusion.”

Akeredolu said any expectations of rapprochement between so-called federating units and federal security agencies “are becoming forlorn, progressively, due to deliberate acts which mock our very avowal to ethics and professionalism.”

The governor, an advocate of a state police system in Nigeria, questioned the current federal policing structure which compels a governor to “seek clarifications on security issues in his jurisdiction from totally extraneous bodies or persons”, describing it as “a sure recipe for anarchy.”

Despite the criticism, Malami continued to justify his action, insisting that it was incumbent on him as the nation’s Chief Law Officer, to ensure compliance with the law and court decisions.

“It is important to state that the office of the Attorney-General of the Federation belongs to the Executive arm of the government.  The Supreme Court  belongs to the Judiciary.

“The Office of the Attorney-General of the Federation and Minister of Justice takes exception to the Southwest governors unjustifiable insinuation of impunity against the office of the Attorney- General over execution of a judgment of the Supreme Court.

“The role of the executive is, in this respect, simply to aid the maintenance of law and order in due compliance with rule of law arising from giving effect to the judgment of the apex court of the land.

“Let it be known that the issue is regarding a Supreme Court Judgment that was delivered in 2012 long before the coming of President Muhammadu Buhari’s administration in office at a time when Malami was not a minister.

“The judgment was a re-affirmation of the judgments of Court of Appeal and High Court delivered on 31st December, 1993.

“The Press Release came to us as a surprise. We see it as a vituperation of ulterior motives of some political class who derived pleasure in dragging the name of Malami in the mud to achieve some sinister objectives…

“It is a common knowledge that execution of the judgment and orders of courts of competent jurisdiction, and the court of last resort in the circumstances remains a cardinal component of the rule of law and the office of the Attorney-General wonders how maintenance of the law and orders in the course of execution of the judgment of the Supreme  Court can be adjudged by imagination of the governors to be unruly.

“We want to restate that the sanctity of the rule of law is not a matter of choice,” Malami said in a statement issued on January 5, 2022 by his media aide, Umar Gwandu.

The Magodo incidents came just while many were trying to put behind them the October 29, 2021 invasion of the Abuja residence of Justice Mary Odili of the Supreme Court by some security operatives.

Malami’s name also featured prominently in the case, with one of the suspects claiming to have a relationship with the AGF, having earlier acted as a consultant to him.

Although Malami denied his involvement and distanced himself from the suspect, it seemed the more the AGF tried, the more the suspicion about his involvement grew.

For the first time in the nation’s history, few days after his denial, a group of senior lawyers, acting under the aegis of the Body of  Senior Advocates of Nigeria (BOSAN) led by Adegboyega Awomolo (SAN), protested to the office of the AGF and demanded that those behind the invasion on Justice Odili’s residence be unveiled.

Also, the Nigerian Bar Association (NBA) stated that it had no confidence in Malami’s involvement in investigating the incident.

The NBA, through the Chairman of Section, Public Interest And Development Law (SPIDEL), Monday Ubani, argued that  Malami was not fit to set up an independent panel to probe the siege on Justice Odili’s residence because his named featured in the incident.

“It is wrong for probably the AGF to investigate himself, because of the fact that he had been implicated, sort of, not that he has been found liable, but somebody mentioned his name,” Ubani said.

The above cases are only the recent few instances involving Malami.

 

2015 Kogi governorship election

Shortly after his appointment in 2015, Malami raised dust when he directed the Independent National Electoral Commission (INEC) to allow the All Progressives Congress (APC) substitute its dead candidate in the Kogi State governorship election.

While many had thought James Faleke, the running mate to the deceased governorship candidate, Abubakar Audu, ought to automatically step in, Malami argued otherwise.

Malami contended that “the issue is very straightforward. Fundamentally, Section 33 of the Electoral Act is very clear that in case of death, the right for substitution by a political party is sustained by the provisions of Section 33 of the Electoral Act.

Read Also: Malami justifies Buhari’s decision on Electoral Bill

“And if you have a community reading of that section with Section 221 of the constitution it clearly indicates that the right to vote is the right of a political party and  the party, in this case, the APC has participated in the conduct of the election. It is, therefore, apparent that the combined community reading of the two provisions does not leave any room for conjecture.

“APC as a party is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also, Section 221 of the constitution is clear that the votes cast were cast in favour of the APC.

“Arising from that deduction, it does not require any legal interpretation. The interpretation is clear, APC will substitute, which right has been sustained by Section 33 of the Electoral Act. So be it.

“The supplementary election has to be conducted along the line,” the AGF said.

His position was promptly adopted by INEC, following which the APC later adopted Yahaya Bello, who came second in its primary, as a replacement for Audu.

 

2016 invasion of judicial officers’ houses

The nation woke up on October 8, 2016 to learn about the simultaneous invasion of the houses of some judicial officers across the country by men of the Department of State Services (SSS).

While many were still struggling to come to terms with the strange development, Malami was quoted to have justified the invasion, thus betraying his involvement in the plot.

He was severely criticised, particularly within the nation’s legal circle, with many classifying it as a sacrilege and a desecration of the Judiciary.

One of the affected judges, Justice Adeniyi Ademola of the Federal High Court (now retired), was categorical in blaming Malami for his ordeal.

In his October 11, 2016 letter to the Chief Justice of Nigeria (CJN), Justice Ademola alleged that the invasion of his Abuja home was instigated by Malami.

Justice Ademola claimed that Malami was trying to get back at him for ordering his arrest for professional misconduct, while he was serving as a judge in the Kano division of the Federal High Court between 2004 and 2008. Malami was based in Kano then.

Part of the letter reads: “Contrary to media report being circulated, I have never confessed to any crime or implicated anybody, including judges, in my statement obtained from me by the DSS.

“What is more intriguing in this whole episode is that I see it as a vendetta/revenge from the Hon. Attorney-General of the Federation, Abubakar Mallami, SAN, (who) whilst I was in Kano between 2004 and 2008 as a Federal High Court judge was involved in a professional misconduct necessitating his arrest and detention by my order.

“However, with the intervention of the Nigerian Bar Association, Kano Branch, the allegation of misconduct was later withdrawn by me. Consequently, the National Judicial Council referred Abubakar Mallami to the NBA Disciplinary Committee for disciplinary action.

“It was a result of this he was denied the rank of SAN by the Legal Practitioners Privileges Committee for the period of four years, until when he produced a fake letter of apology, purportedly addressed to me. It was then he was conferred with the rank. Since the above incident, Abubakar Mallami has threatened to revenge and swore to do anything to bring me down.”

 

His fight with Magu

For most part of his time at the helm of affairs at the Economic and Financial Crimes Commission (EFCC), Ibrahim Magu was  at loggerheads with Malami over the operations of the organisation.

Magu never survived his brushes with Malami. He was never confirmed as the substantive Chairman of the agency and was subsequently eased out unceremoniously on July 7, 2020 when he was suspended based on a petition written against him to Buhari by Malami.

Magu never returned until a successor Abdulrasheed Bawa was appointed.

 

Link with Maina’s reinstatement, Oyo-Ita’s fall

Malami’s name featured prominently in the controversial reinstatement and promotion of the now jailed former Chairman of the Pension Reform Task Team (PRTT), Abdulrasheed Maina.

Maina was sacked in 2013 over his indictment for his complicity in the looting of pension funds. He subsequently ran outside the country when the EFCC went after him.

But about four years later, information filtered in that Maina has not only been reinstated to the Ministry of Interior, but had also been elevated, a development that attracted criticism.

The then Head of Service of the Federation (HOSF), Mrs. Winifred Oyo-Ita distanced herself from Maina’s reinstatement and blamed it on Malami.

Like Magu, Oyo-Ita never survived her decision to oppose Malami on the Maina case. She was later relieved of her office and subsequently charged with fraud.

She is, along with some of her ex-aides, being prosecuted before Justice Taiwo Taiwo of the Federal High Court in Abuja.

It later turned out that Maina’s reinstatement was on the strength of Malami’s letter, with Ref. No. HAGF/FCSC/2017/Vol. 1/3, in which he among others, directed the Federal Civil Service Commission (FCSC) to give effect to a 2013 judgment of the Federal High Court, Abuja which he claimed gave Maina a clean bill of health and voided the process that led to his dismissal from service.

On the strength of the letter, the FCSC, at the end of a meeting it held on June 14, 2017, requested the Office of the Head of the Civil Service of the Federation (OHCSF), vide a letter marked FC.4029/82/Vol. III/160, and dated June 21, to advise the Permanent Secretary of the Ministry of Interior to consider the AGF’s letter and make appropriate recommendations on the Maina’s case.

The Ministry of Interior, at its Senior Staff Committee meeting held on June 22, placed reliance on the AGF’s letter and recommended that Maina be reinstated into the Service as Deputy Director on Salary Grade Level 16.

On August 16, the FCSC approved the reinstatement of Maina with effect from February 21, 2013 (being the date he was earlier dismissed from service.

The FCSC equally agreed to allow Maina to sit for the next promotion examination to the post of Director (Administration) with Salary Grade Level 17.

In the height of the controversy generated by Maina’s reinstatement, some legal minds were compelled to engage in a closer scrutiny of the judgment referred to by Malami.

It was then uncovered that allegedly Malami either misinterpreted or imported his own meaning to the judgment delivered on March 27, 2013, by Justice Adamu Bello (now retired).

Justice Bello, in the judgment, merely quashed a warrant of arrest issued against Maina by the Senate of the National Assembly and faulted the process leading to the issuance of the arrest warrant.

The judge said there was no evidence that the investigation the Senate commenced against Maina was “one validly commenced in accordance with the provisions of Section 88(1) of the 1999 Constitution”.

He held that the Senate’s investigative committee failed to present before his court, vital documents to show that Maina was accorded fair treatment before the warrant of arrest was issued against him.

Justice Bello did not clear Maina of allegations by the EFCC that he embezzled pension fund to the tune of N2 billion. The judge also did not insulate Maina from EFCC’s investigations.

Instead, Justice Bello advised Maina to surrender himself to the authorities investigating the alleged N2 billion fraud.

Part of the judgment reads: “The implication of the failure to produce and annex these vital documents to the counter affidavit of the 1st, 2nd, 3rd, 4th, 5th, 8th and 9th respondents is that there is no evidence before me to show that the investigation commenced by the said respondents is one validly commenced in accordance with the provisions of Section 88(1) of the 1999 constitution.

“If it has not been validly commenced in accordance with the Constitution, it follows that the summons or invitation to the Applicant (Maina) to appear before the Committee would not have been validly issued and ipso facto, the warrant of arrest was not validly issued.

“In the circumstances therefore, I am bound to set aside the warrant of arrest issued by the 2nd respondent which threatens the right of the applicant to his personal liberty.

“Consequently, the warrant of arrest issued by the 2nd respondent for the arrest of the applicant is set aside.

“I grant relief-1 contained in the statement. I also grant an order of perpetual injunction restraining the respondents jointly and/or severally by themselves and or their agent, privies, servants, however so called from arresting the applicant on account of the warrant of arrest which has been set aside.

“However, beyond these two reliefs, given all the facts available to the court, the applicant is not entitled to any other relief.

“My decision is based purely on the failure of the respondents to annex the vital documents I mentioned, otherwise, the applicant would not have any case at all.

“The decision should not, therefore, send a wrong signal to the public that the Senate does not have the power to cause an investigation within the purview of the powers conferred on it by Sections 88 and 89 of the Constitution with respect to the matters enumerated therein.

“It has such powers and when properly exercised, it can summon any person in Nigeria to give evidence and can also compel the attendance of any such person.

“Let me end the judgment by advising the applicant to submit himself voluntarily to the investigation by the Senate in order to show that he respects constituted authority.

“It is the least expected of him as a public officers and as a citizen of Nigeria”, Justice Bello held.

In reaction to the controversy generated by Maina’s reinstatement, the Federal Government ordered his sack, following which he was prosecuted by EFCC and jailed along with his son, Faisal for money laundering.

 

Attempt to draw parallel  between human, cattle rights

Malami introduced what his critics considered a ludicrous dimension to the debate over the continued sustainability of open grazing of cattle in view of its devastating effects on the nation’s peace, security and crop farming as a result of the incessant clashes between herders and farmers.

In reaction to the problem of herders/farmers clashes, the 17 governors of the southern states rose from a meeting in Asaba, Delta State in May 2021 and announced the ban of open gracing of cattle in their states.

Malami promptly countered the governors, arguing that their position amounted to an affront on human rights.

The AGF queried the legality of the policy, contending that it violates the constitutionally guaranteed right to freedom of movement, adding that it “does not hold water” within the context of human rights as enshrined in the constitution.

Read Also: Malami faults Southwest governors on Magodo crisis

Malami added: “It is about constitutionality within the context of the freedoms expressed in our constitution. Can you deny the rights of a Nigerian?

“For example, it is as good as saying, perhaps, maybe, the northern governors coming together to say they prohibit spare parts trading in the North.

“Does it hold water? Does it hold water for a northern governor to come and state expressly that he now prohibits spare parts trading in the North?”

He argued that those seeking to ban open grazing should first, facilitate the amendment of the constitution to that effect.

“If you are talking of constitutionally guaranteed rights, the better approach to it is to perhaps go back to ensure the constitution is amended.

“Freedom and liberty of movement, among others, established by the constitution, if by an inch you want to have any compromise over it, the better approach is, go back to the national assembly to say open grazing should be prohibited and see whether you can have the desired support for the constitutional amendment.

“It is a dangerous provision for any governor in Nigeria to think he can bring any compromise on the freedom and liberty of individuals to move around,” Malami said.

 

Intervention in cases involving Oduah, Ohakim

The AGF’s intervention in some high profile cases has not only been controversial, it has acted to delay proceedings in the cases.

For instance, the planned arraignment of former Aviation Minister and serving Senator, Stella Oduah was stalled before a Federal High Court in Abuja on November 22, this year owing to Malami’s intervention.

The EFCC had filed a charge against Oduah, her aides, Gloria Odita, Nwosu Emmanuel and Irene Chinyere Chukwuma along with some firms, in which they are accused of engaging in money laundering to the tune of N10billion.

At the scheduled arraignment of the defendants on November 22, lawyer to some of the seventh and eighth defendants – Crystal Television Limited and Sobora International Limited) – Ogwu Onoja (SAN) showed the court  a copy  of a letter he claimed the AGF wrote following a petition by his (Onoja’s) clients, directing the EFCC to submit the case file to his office.

Upon sighting the letter, Justice Inyang Ekwo put off the planned arraignment and adjourned till February 10, 2022 to enable the AGF communicate his final position in the case.

A similar intervention of the AGF equally stalled proceedings in the two cases involving a former Imo State governor, Ikedi Ohakim before the High Court of the Federal Capital Territory (FCT) in Maitama and the Federal High Court in Abuja.

In the case before Justice Taiwo Taiwo of the Federal High Court, Ohakim and one of his aides, Chinedu Okpareke are accused of threatening the life of the ex-governor’s alleged ex-mistress, Mrs. Chinyere Igwegbe Amuchienwa.

In the case before Justice Yusuf Halilu of the High Court of the FCT, Mrs. Amuchienwa is accused of threatening the ex-governor.

Trial was to commence last November this year in both cases (originally filed by the Inspector-General of Police), but it had to be postponed till this year by both courts after the AGF intervened and took over the prosecution of both cases.

 

Support for Malami on the Magodo estate crisis

Although many have continued to criticise Malami on his intervention in the Magodo crisis, the AGF’s position on the issue gained some support from some lawyers.

One of such lawyers is Abuja-based Vincent Adodo.

Adodo argued that by Section 287 (1) of the 1999 Constitution As Amended, the Attorney-General of the Federation and Minister of Justice has a bounden and constitutional duty to enforce the decisions of the Supreme Court. Below is the text of the said section 287 (1): ‘The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by court with subordinate jurisdiction to that of the Supreme Court.’

He added: “From the cited provisions of the supreme law of the land, it becomes demonstrably clear that the duty to enforce the judgment of the Supreme Court is not exclusive to certain persons or agencies but it is a duty imposed on persons and authorities, particularly the HAGF.

“There is no doubt that the Sherrifs and Civil Process Act, Cap S6 Laws of the Federation of Nigeria 2004  (SCPA) makes specific provisions concerning the procedure for enforcement of court judgments, it is respectfully submitted, however, that the scope of the application of the SCPA is limited to instances where a judgment is being enforced by a Sherrif of the High Court of a state or the FCT pursuant to his powers under the SCPA.

“Where compliance with a court judgment is secured by the Attorney- General of the Federation in his capacity as the Chief Law Officer of the Federation, he is not bound by the SCPA given that his powers to seek compliance with a court judgment is derived from section 287 of the Constitution and not the SCPA which is a legislation inferior to the Constitution.”

He argued further that the office of the AGF is a creation of section 150 of the Constitution.

“The HAGF is bound to protect the Constitution and ensure compliance with extant laws by all agencies of Government. In the circumstance, it is incumbent on the HAGF to ensure that the dignity and integrity of the highest court in the land was not subjected to further ridicule through the perennial disobedience to it’s judgment by Lagos State.

Furthermore, the intervention of the HAGF became at this point necessary because the law abhors a vacuum in the scheme of affairs.

“The Lagos State High Court Enforcement Department headed by its Sherrif having abdicated it’s duty of enforcing the judgment under the Sherrifs and Civil Process Act, a situation warranting resort to any other lawful means was thereby created and this other lawful means – seeking compliance with the judgment through another lawful mechanism outside the control of the Lagos State Government – is imperative and sanctioned by section 287(1) of the Constitution and the doctrine of necessity

“In the final analysis, it is not disputable that the statutory procedure for enforcing a judgment is enacted in the SCPA, nevertheless, the intervention of the HAGF can be justified under the imperative necessity to ensure the preservation of the integrity of the Supreme Court, that is the necessity to put an end to further violation of the 1999 Constitution which in section 17 (2) (e)  guarantees the independence, impartiality and integrity of courts of law.

“Finally, the SCPA is applicable only in instances a judgment of court is sought to be enforced through the sherriff of a High Court whose powers and functions are established and delineated by that law.

“Conversely, the powers of the HAGF to enforce or seek compliance with the judgment of a Court (in this instance, the supreme Court) is derived directly from the Constitution and not the SCPA. The HAGF is thus not bound by the procedures stipulated therein.”