The Nation Newspaper

Category: Law

  • ‘Arbitrary billing violates consumer rights’

    Arbitrary billings and mass disconnection of electricity violate consumer rights, Consumer Protection Council (CPC) Director-General, Mr. Babatunde Irukera, has said.

    He spoke at a meeting with top management of the Abuja Electricity Distribution Company (AEDC) led by its Managing Director, Ernest Mupwaya.

    The DG noted that the vast majority of complaints in the sector were about arbitrary billing and irregular disconnections.

    Irukera said:  “There is no excuse for how consumers are treated. The key complaints that we receive are arbitrary, unsupported and unreasonable billing; people not being treated with dignity, the complaint resolution process being either lacking or unclear and there’s really no respect for people.”

    The DG said consumers’ complaints had not been primarily about supply, but about billing for non-existent supply.

    “As a matter of fact, the majority of supply complaints are attributed to the fact that you are asking them to pay for something that was not supplied and the other significant reason is group disconnection.

    “DISCOs have gotten to a point where no one takes their bills seriously anymore, because they are considered outrageous. I think the pressure on metering will not be so bad if the estimated billing was more transparent and reasonable”.

    “What DISCOs are doing is connecting their balance sheets to receivables from consumers, but consumers are connecting what they owe to what they receive,” he said.

    Irukera urged the distribution companies to stop the arbitrary billings.

    “Connecting balance sheet to an opaque arbitrary metering system is the worst form of abuse, especially for an essential public utility,” he said.

    He contended that group disconnection usually adopted by distribution firms because of the debts owed by some members undermines the rights of other consumers who do not owe.

    He said: “You see people who are complaining about supply because they, as individuals, have been responsible, but the DISCOs have painted them with a broad stroke and disconnected even the responsible people.

    “As a lawyer, our approach to criminal work, even legal work, has always been that let the guilty man go free instead of punishing the innocent man.

    “For me, there’s something fundamentally, absolutely irreparable and, inexcusably, wrong with penalising people because of the conduct of others. It is just not excusable.

    “The government should never do that to its people. But if the government does it as a state actor, as inexcusable as it is, it might even be permissible.

    “But one person who has absolutely no right and should never have the prerogative to do it is a private citizen to another private citizen. And that is what DISCOs do. They group-disconnect consumers.

    “If there’s one responsible consumer, who is being disconnected unjustly, what you are doing is that you are discouraging responsibility,” he added.

    The CPC boss observed that group disconnection was antithetical to the promotion of an enabling environment for investment, stressing: “It is the quintessential case for mistreatment of an otherwise responsible consumer.”

    Earlier, the AEDC MD spoke of the need for the company to have a cost-reflective tariff for it to have a seamless and a more robust operation.

    He stressed that fluctuation in foreign exchange rates and inflation impact on its activities.

    On estimated billing, he said efforts were being made to address the metering gap with more meters for consumers and the adoption of an interim plan of metering transformers for a more accurate estimation.

    He said: “The issue of estimated billing has not been fully resolved because of the low rate of metering, and this is closely tied with the impairment on the balance sheet which is tied to tariff issues.

    “The balance sheets are impaired to the extent that we are facing huge challenges to attract investments. But I must say that the government, through the power sector recovery programme, has put up a plan that will address these gaps.

    “There will be a reset this year, and there will be some level of adjustments in such a way that the balance sheets will look better, and this will give us impetus to get more finances.

    “I think the whole plan is premised on DISCOs being able to meter customers 100 per cent over 24 months. So, we have positioned our sales to meet this challenge of metering.

    “But beyond that, we realised that whereas it is important to meter every customer, there is a very quick win to meter all the transformers,” he said.

    According to him, the value of metering transformers is that “even in cases where we have to do an estimate, the estimate becomes very accurate, because it is being done on the basis of measured energy up to the level of distribution transformers, unlike now where these formulas are being applied over a large cluster.

    “If you pick a large cluster, there will be distortions of the outliers. There will be customers who will have high estimated bills. There will be others who will have low estimated bills.

    “But, if you are doing your estimated billings at the level of the transformer, then you are more accurate, and the other benefit is that you can quickly identify areas, transformers and even customers where electricity is being stolen, because it is important to identify leakages in power, because leakages distort the sharing formula.

    ‘’If everybody is identified and there is equitable sharing, then the estimated billing becomes very accurate. And this will be followed by the actual mass metering. But before the mass metering arrives, we think we can have every means to do the transformer metering,” Mupwaya said.

  • Democratise SAN award, says Falana

    Activist lawyer Femi Falana (SAN) has asked that the guidelines for Senior Advocate of Nigeria (SAN) award should be reviewed to ensure that all qualified applicants are honoured.

    He gave the advice while delivering the dinner speech to mark the 90th birthday of  a Life Bencher, Pa Tunji Gomez. Falana praised the Nigerian Bar Association (NBA), Lagos Branch for “celebrating Pa Gomez while he is still alive”.

    He said: “There is no way you can justify giving the award to only 21 lawyers in a year where you may have shortlisted over 200 applicants. It gives room for a lot of discretion, and this has to go.” Instead, he said Nigeria should emulate England, Jamaica and Canada where all qualified applicants are awarded the rank.

    Falana lamented that only two percent of female lawyers have been awarded  SAN since inception in 1975, adding that this does not show Nigeria as progressive.

    According to him, the dinner/lecture, which was held at the MUSON Centre, Lagos “is also a challenge to lawyers to live a good life so that they can be celebrated in their lifetime”.

    Falana noted that Gomez’s anti-SAN rank stance was borne out of his commitment to equality before the law and equal rights. As far as he is concerned, a lawyer is a lawyer.

    “And if we are running a truly democratic system like in America, there should be no ranking of lawyers.” Falana, however, observed that since Nigeria “inherited the British tradition of having a club of lawyers to act as a shining example for others, we are retaining the rank of Senior Advocate”, he said.

    The human rights activist, however, noted that over the years, “it has become undeniable that the rank has been mired in controversy just like any honour given in Nigeria.  It ought to be pointed out that the campaign for the abolition of the rank is not limited or peculiar to Nigeria”.

    He observed that the rank was abolished in Ghana in 1988, following a court judgement, adding that the attempt by the abolitionists in Nigeria led by Gomez to replicate that feat was truncated by the Federal High Court on a “technical ground” of lack of service.

    He however recalled that former Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed had advised the abolitionists to seek an amendment of the enabling law in their bid to sound the death knell on the rank.

    Falana said he owed a debt of gratitude to the Gomez-led abolitionists for the award of the rank to him “and for keeping up the struggle,” adding that without Gomez’s struggle, “it would have been impossible to open the floodgates as it were” to accommodate more applicants.

    “Today, large-scale reforms have taken place,” he said, adding: “And when I stand before you and l am described as SAN, I think it was the struggle that pushed the legal establishment to expand the frontiers to accommodate those who were otherwise said not to be fit and proper persons to be Senior Advocates of Nigeria.”

    He observed that late Chief Gani Fawehinmi and himself were listed consistently for 10 and eight years before they got frustrated, adding: “It was the system ‘’on its own ”that invited him to take silk.

    Falana enumerated some of the shenanigans that had attended the award of silk and noted that the revised guidelines had sought to reverse this by focusing on advocacy at the trial courts, adding however that this may cause hardship to some applicants “in the midst of many senior advocates” whose cases take precedence.

    He observed that the new guidelines also sought to strengthen the award mechanism and ensure that more people are admitted to the inner Bar, adding that the guidelines equally emphasise the conduct of the awardees as they may now be de-robed.

    Falana, however, warned: “The legal establishment of a conservative profession is not going to abolish the rank of senior advocate. What the authorities have settled for is to reform the process.”

    He therefore advised better case management by judges to accommodate non-SANs, adding that senior advocates should play more leading roles in the affairs of the Bar at the branch level.

    NBA Lagos Branch Chairman, Mr. Chukwuka Ikwuazom said the decision of the branch to honour  Pa Gomez was to appreciate his “uncommon and zealous” commitment to the branch, even as the Chairman of the Planning Committee. He thanked all who contributed in making the celebration a huge success.

    The event, chaired by former Body of Benchers chairman, Chief S. M. Olakunri (SAN) was attended by the cream of the bar and bench.

  • Group to AU: probe schoolgirls’ abduction

    THE Women Empowerment and Legal Aid (WELA) has asked the African Union (AU) to undertake a fact-finding mission to establish the circumstances surrounding the abduction of over 100 school girls from Dapchi in Yobe State.

    It  urged the commission to prevail on the authorities to end similar abductions.

    WELA’s  Executive Director,  Mrs Funmi Falana, wrote the African Committee of Experts on the Rights and Welfare of the Child, chaired by Prof. Benyam Dawit Mezmur.

    Falana said the organisation was concerned that the abduction of the school girls “shows continuing failure of the authorities to take steps to protect our schools and children against violence by Boko Haram’’.

    “The abduction of school girls from Dapchi followed abduction by Boko Haram in Borno, Yobe and Adamawa states, including the April 2014 abduction of 276 girls from Chibok Secondary school.

    “We believe that attacks on schools place children at risk of injury or death and affect students’ ability to obtain education. Attacks on schools, teachers and students can cause children to drop out or attend school less often, force schools to limit their hours and destroy school buildings and materials.’’

    The group  said where there was violence and fear, children’s education would be affected.

    WELA asked the authorities to explain the  steps they were taking to implement the Safe School Declaration.

    WELA added: “Ask the authorities to publish the number of schools or education facilities that have been damaged or destroyed as a result of attacks by (a) state security forces (b) non-state armed groups since the start of the conflict in the Northeast;

    “Ask the authorities to publish the steps they are taking to ensure that attacks on schools in contravention of international human rights and humanitarian law, are investigated and those suspected to be responsible duly prosecuted and

    “Prevail on authorities to respond to attacks on schools by promptly repairing damage and ensuring that students can safely return to class.

    “Prevail on authorities to ensure the provision of education in crises and displacement, and adopt special measures to ensure children can continue education in highly insecure areas, including by reducing the distance to school, offering distance learning programmes and setting up protective learning spaces for girls and teachers, among others.’’

  • ‘I was embarrassed on my first day in court’

    Adebukola Ogunkoya is a 2009 graduate of Obafemi Awolowo University (OAU), Ile-Ife. Her aspiration is to become a “21st century solution in the legal marketplace”, reports ADEBISI ONANUGA

    Family background

    I was born in Lagos, into the family of Mr. and Mrs Ademola Ogunkoya. I am the first of four children. I graduated from the Faculty of Law,  Obafemi Awolowo University (OAU), Osun State in 2009, and the  Nigerian Law School, Lagos Campus. I was called to the Nigerian Bar in 2010.

    What inspired your choice of law?

    As a child, I always mimicked lawyers from the ideas I had from films. I would gather my siblings behind the speakers and begin to display courtroom roles. I didn’t know how to further express and realise it, until my father guided me along the path. To the best of my knowledge, none of my family members are lawyers.

    How family and friends celebrated my becoming a lawyer

    My father, most especially, was elated on my graduation. He had ensured that I had all I needed to fulfil my ambition.

    Greatest challenges

    The system has been my greatest challenge. I realised that what we were taught in school isn’t how it obtains in the real world. You are taught that bail is free, but in practice it’s not; in fact, in some situations where your client is the complainant,  the police will end up locking the client up. You will then have to pay to get his/her bail.

    Relationship with principals

    I will say I have one of the best experiences with my principal, Mr. Olayinka Olajuwon in the firm Olayinka Olajuwon & Co.

    It  is one of the best experiences any young lawyer can hope for in terms of good practice, support and flexibility.

    Marriage to a lawyer

    Of course, I can marry a lawyer.

    Most embarrassing day in court

    My most embarrassing day in court was my first day. The judge  awarded the cost of N200,000 against my client for discontinuing a matter. For me, that was supposed to be an easy thing to do and then my client was awarded such a cost.

    Most memorable day

    My most memorable day in court was about a tenancy matter I commenced at the magistrates’ court, which was on appeal at the high court at the instance of the defendant because the case was not in their favour. We had been coming to court on several occasions until this memorable day when the judge decided to look at the application of parties and realised the notice of  appeal by the appellant  was out of time and the appeal was struck out. I was elated and hurried to execute the judgment on the tenant.

    How to overcome poor remuneration

    Poor pay is an issue that is yet to be addressed. We attend conferences and the issue is raised, but no action is being taken to ensure that young lawyers get good pay. I will suggest that we, young lawyers, should put heads together and proffer and effect possible solutions to ensure a good and reasonable pay for young lawyers.

    Achievements on the job

    So far, I am an active member of the Ikorodu branch of the Nigerian Bar Association, and I have served in various capacities. Law School experience  was a distinct academic experience for me.  I hope to be a thoroughbred practitioner.

    Law School curriculum

    I would advise that the curriculum be upgraded. This is because there are new legislations and the markets in each sector of the economy change.

    Dressing

    I will advise that young lawyers should adhere to the dress code; its decent enough.

    Aspiration for the next decade

    I plan to take on the world, and to  establish myself as a 21st-century solution in the legal marketplace.

  • Danjuma’s call not invitation to anarchy, says Oyebode

    Professor of International Law and Jurisprudence, University of Lagos, Prof Akin Oyebode, has said Lt.-Gen Theophilus Danjuma’s advice that Nigerians should defend themselves when attacked is not a call to anarchy.

    Oyebode reasoned that people had to protect themselves when their existence is threatened.

    Last Friday, Gen. Danjuma (retd) accused the military of taking sides with a particular group and called on the citizens of the affected states to defend themselves from the attacks by herdsmen.

    Speaking at the maiden Convocation of the Taraba State University (TSU), Jalingo, he suggested that the Armed Forces had failed to protect Nigerians because they collude with the killers.

    Danjuma said: “The Armed Forces are not neutral. They collude …with the armed bandits that kill people and kill Nigerians. They facilitate their movement. They cover them.”

    The statement has generated a big row with the Army and Minister of Defence, Mansur Dan-Ali, rejecting the former Minister of Defence and elder statesman’s claim.

    But Oyebode backed the General’s claim that the country had not demonstrated its capability to protect Nigerians.

    He said: “Nigeria being a failing state unable to render protection to its citizens cannot consider Gen. Danjuma’s call an invitation to anarchy. “Self-preservation is the first order of nature and people cannot stand idly by in the face of their decimation.”

  • Judge X and the Americana

    Nobody messes with Judge X.

    Her Lordship does not suffer fools gladly.

    Each time you open the big wood and glass double doors of her large, Lagos Island courtroom from outside, you’ll see her four commandments typed in large black letters on a white sheet on the wall, near where the policewoman sits:

    Switch off your phones.

    No talking.

    No chewing of gums.

    No sleeping.

    There are other unspoken rules, of course, like the one against tapping your shoe sole or grovelling with it as you walk in or out.

    Sometimes, when I step into the courtroom and Judge X is preoccupied with her notes or looking the other way, a streak of defiance wells up in me and I am tempted to not bow.

    But that still, small voice that saves us from the foolishness of headstrongness, reminds me of what happened about 38.1 kilometres away in the Ikorodu Judicial Division.

    So, I perish the thought quickly.

    That morning, a few years ago, a pretty, chubby, young woman stood up from the back of the courtroom while the court was in session.

    She was at the door in a few nimble steps and on her way out when the magistrate summoned her.

    Shy and remorseful, she admitted her indiscretion: failure to bow, or, if you like, contempt in facie curiae (in the face of the court).

    His Honour ordered her to remain standing by the door till the court rose, several minutes later.

    Was that legal? I don’t want to find out.

    Judge X is as punctual as a grandfather clock: her sessions start by 9am on the dot, so, lateness is forbidden.

    Her Lordship reminds me of The General.

    Nobody messes with him or his people either.

    Dogged and upright, allegations of impropriety against The General simply do not stick.

    Those who know, remember The General’s role in putting his own boss in jail for corruption.

    So, it took most of the audience in Her Lordship’s court by surprise last week, to hear what ‘Americana’ told the judge about one of The General’s people.

    It was just a fraud case, or so I thought, when the registrar called the defendant out.

    The defendant, a slim, dark, bespectacled youngish-looking man in a white guinea fabric, walked quietly into the dock.

    The General’s counsel – I could only see her back: her shoulders were stiff and straight – got to her feet at the long desk in the front row and addressed Her Lordship.

    She received a process three days before and that got her into a rage.

    Its contents were personal, weighty and defamatory, she told the judge angrily.

    “It is scandalous, defamation of character,” she said.

    The prosecutor turned to where Americana sat at another desk.

    She said, voice rising: “This is a man that lies with ease. This is someone whose character is nothing to write home about.”

    Judge X called her to order, but the prosecutor was too far gone.

    The courtroom went silent after her outburst.

    It turned out Americana had accused her of demanding a bribe.

    I quickly looked up Americana’s name online: it appeared he may have been in some kind of trouble in Maryland, Washington DC and New York, something to do with money.

    Shoulders heaving, she continued: “I have not demanded for money. We have not entered the same plane. He is a low life, a scumbag.”

    At once Americana was on his feet.

    He said: “I object.”

    “So do I,” said the judge.

    When she insisted on reading out the offensive portion of Americana’s motion, Her Lordship advised her not to.

    “I prefer you do not,” the judge said with a wise look. “If there is anything you’re not comfortable with in the processes, you know what to do.”

    A warden to my left whispered to a prisoner in white.

    “Does this place look like a marketplace?” Judge X’s voice rang out at him. “Go outside and hold your conversation.”

    Her Lordship glanced at the defendant.

    “Defendant, is there any chair there?”

    The defendant shook his head.

    One of the registrars brought him a chair.

    Americana stood up slowly and adjusted his glasses, when it was his turn to address the court.

    He seemed to have an incomplete American accent: the type you acquire if you haven’t lived long enough in the United States to speak Americanese naturally.

    Americana had this unusual habit of drinking from a plastic water bottle after every few minutes.

    I have never seen anyone do that while addressing a judge.

    He said: “I have been a counsel for 30 years. The prosecution’s outburst was unjustified.”

    But the judge cut in.

    “Because you have been a counsel for 30 years, does that justify your making such serious accusations against your fellow counsel?”

    Americana: “I did not make any false statements.”

    “So, your allegations are correct?”

    Americana: “Yes, my Lord.”

    The judge bent over her notes and made an entry.

    When both counsel attempted to speak at the same time, Her Lordship cut them short.

    Once again, Americana reached for his water bottle.

    All eyes were on him. Even Judge X watched as the water gurgled in his mouth, rushing out of the bottle, down his throat.

    It was funny.

    A few people smiled. So did I. The woman in the black gown beside me chuckled.

    A smile formed in the corners of Judge X’s mouth.

    Americana seemed to notice the effect his drinking was having and offered an apology.

    He said: “I’m sorry my Lord, my mouth rises when I speak.”

    But it appeared he had not completely gulped the water when he spoke and his voice sounded gargled.

    “Counsel, is this what you practice in the United States?” Her Lordship responded, chuckling.

    A few people chuckled in the gallery too. This time, Judge X did not rebuke anyone.

    Soon after, the parties picked dates and Her Lordship adjourned.

    But chuckles still trailed him some minutes later when Americana walked out the door.

  • Eastern Bar submits adopted candidates to Arewa Lawyers

    The Eastern Bar Association (EBF) has submitted the list of its adopted candidates for the Nigerian Bar Association (NBA) election to the Arewa Lawyers Forum (ALF).

    The EBF adopted the candidates after a screening process in line with its constitution.

    The EBF and ALF are among the NBA fora. The association’s election will hold in July.

    EBF Publicity Secretary Mr. George Fortune submitted the list of the adopted candidates to the former ALF Vice-Chairman Mr. Garba Pwul (SAN).

    It was done shortly before ALF dissolved its executive committee, which included Pwul.

    he ALF at its meeting in Kaduna dissolved the exco and constituted and interim executives with Elish Kurah (SAN) as Chairman.

    The new executives will manage the ALF’s affairs pending the election of new officers.

    Fortune told The Nation that the submission of the letter of adoption from the EBF was in keeping with the finest traditions of the Bar.

    He said the  EBF submitted the list to ALF and other regional fora to avoid confusion and to convey forum’s position on the candidates.

    The EBF had at a meeting in Port Harcourt, the Rivers State capital, endorsed the following candidates:  Chief Arthur Obi Okafor ( SAN) for President,  Stanley Chidozie  Imo (First Vice-President),  Sabastine Anyia (Welfare Secretary), Uju Mary Chukwuma-Okafor (Treasurer),   Innocent Nnamdi Ezeh (Legal Adviser), Emeka Anosike (Financial Secretary) and Mr. Seth Nwokolo (Assistant Publicity Secretary).

    The candidates emerged after the screening exercise conducted by the Forum’s Screening Committee, comprising EBF Governing Council members, branch chairmen and secretaries of all EBF branches, all Senior Advocates of Nigeria from the EBF states, and all NBA national officers  from the EBF zone, in compliance with Article 11 of its Constitution.

    The list was subsequently approved by the EBF General Meeting.

    The screening exercise was witnessed by the NBA First-Vice President, Mr. Caleb Dajan, who represented the NBA President, Abubakar Mahmoud (SAN); Third Vice-President Mr. Ben Oji,  Welfare Secretary Mr. Adesina Adegbite, and Pwul, who led a team of ALF members to the event. Pwul represented ALF Chairman, Bauchi State Governor Mohammed Abubakar.

    Also present were  Secretary of South West Lawyers Forum (Egbe-Amofin), Mr. Ranti Ajeleti who led a delegation of Southwest lawyers, as well as a delegation of the Mid-West Bar Forum led its publicity Secretary, Mr. Alex I. Obade.

    NBA national officers of EBF extraction at the event include Second Vice-President Mr. Monday Onyekachi Ubani, National Publicity Secretary John Austin Unachukwu, First Assistant Secretary Mr. Leo Okey Ohagba, Financial Secretary Mrs Ngozi Udodi,  Second Assistant Secretary, Ms Cecilia Ugbuji and Assistant Financial Secretary Mrs Dorcas Ngwu.

  • ‘Revisit NFIU’s removal from EFCC’

    The Human and Environmental Development Agenda (HEDA Resource Centre) has urged President Muhammadu Buhari to reconsider the removal of the Nigerian Financial Intelligence Unit (NFIU) from the Economic and Financial Crimes Commission (EFCC) before signing the NFIU Bill into law.

    Among others, it wants the clause on mandatory Senate confirmation of NFIU Director removed.

    HEDA said rather removing the NFIU from the EFCC, the commission’s legal framework could be amended.

    In a letter to the President signed by HEDA’s National Chairman, Mr Olanrewaju Suraju, the group said relocating the NFIU to the Central Bank of Nigeria (CBN) would cripple the country’s financial intelligence foundation.

    “The effect and impact of relocating the NFIU from the EFCC in terms of dwindling and incapacitating the EFCC in the normal cause of its operations will be enormous.

    “The philosophy of this domiciliation was informed by the fact that the EFCC is the sole agency in Nigeria with the mandate to investigate and prosecute economic and financial crimes.

    “Looking at the concerns of the Egmont Group that led to the suspension of the NFIU, there is nothing inferring that the Egmont Group does not recognise the robustness of the NFIU in terms of its operations.

    “The concerns are hinged basically on the legal framework defining the operational autonomy of the NFIU vis-à-vis the EFCC and the legal framework to protect the confidentiality of information received by the NFIU.

    “These concerns can easily be addressed by amending Section 1(2) and Section 6 (l) of the EFCC Act 2004, simplicita.

    “Going by the Egmont Group principles and protocols, the passage of the EFCC Amendment Bill without more would have automatically resulted in the lifting of the suspension of the NFIU since January 2018.

    “This option, as easy and straight forward as it is, has been jettisoned by principal protagonists of severing the NFIU from the EFCC, for reasons best known to them.

    “It is common knowledge that under the principles and procedures for membership of the Egmont Group, by its Addendum for membership published in 2005, where an FIU undergoes a fundamental change in its structure and composition, that change triggers a review and compliance process that will result to a fresh application for membership of the new FIU.

    “This will be carried out by an appointed team of mentors from the Egmont Group Secretariat who will visit the new FIU to determine if the new FIU meets the criteria for Egmont Group membership.

    “Germany just went through this process when it relocated it’s FIU from the Police to Customs. Germany was expelled, and it had to go through the process of reapplication for membership.”

    HEDA accused the CBN of complicity in money laundering cases involving former heads of state and political officers.

    “The current NFIU Bill, as it has been passed by the National Assembly, is unwieldy and detracts completely from the core functions of an FIU which is to receive information, analyse the information and disseminate to law enforcement agencies without interference.

    “It is our humble submission that as variously expressed by some stakeholders including other previous Head and Directors of the NFIU, except those with other motives than altruistic, the option of amending the EFCC Act is more feasible, simple and straightforward.

    “It will do the country so much good to restrict yourself to addressing only the concerns raised by the Egmont Group. Otherwise, we will be exposing the NFIU and Nigeria to more dire situations that may take the country another two to three years to address.

    “You are, therefore, implored to withold assent and demand the appropriate amendment to the bill hitherto; domicile the NFIU in its current position, remove clause imposing Senate confirmation of appointed Director of NFIU; and other reactionary clauses imposed by selfish Parliamentarians driven by unseen hands and motives,” the letter reads.

     

  • Who can reorder polls sequence?

    Who has the right to determine the order of elections – the Independent National Electoral Commission (INEC) or the National Assembly? The President has vetoed the lawmakers’ amendment to the Electoral Act 2010 which altered the order of the 2019 elections already fixed by INEC. The Accord Party (AP) has also obtained an interim order stopping the lawmakers from taking further steps on the matter. How will it all end, considering that it is less than one year to the next elections? ROBERT EGBE examines the Constitution, the Electoral Act and the implications of re-ordering the elections sequence.

    IT is about 10 months and 27 days to February 16, 2019, the date fixed for the Presidential and National Assembly elections by the Independent National Electoral Commission (INEC). The Governorship and Houses of Assembly polls will hold on March 2.

    But it may not be so if the National Assembly has its way.

    The controversy

    Last Tuesday, the lawmakers’ attempt to re-order the election sequence failed when President Muhammadu Buhari declined assent to the Electoral Act (Amendment) Bill, 2018.

    The Presidency held that it is INEC‘s job to organise the elections.

    The bill, which originated in the House of Representatives, sought to compel INEC to hold the National Assembly polls first and the presidential elections last.

    Some of the lawmakers threatened to override the President’s veto by invoking the Constitution.

    However, this alarmed the Accord Party, which last Wednesday through its lawyer, Chief Wole Olanipekun (SAN), obtained an order restraining the lawmakers from doing that.

    Justice Ahmed Mohammed of the Federal High Court in Abuja ordered the parties to maintain the status quo and adjourned till today for hearing.

    Piqued, the Senate resolved to report the judge to the Chief Justice of Nigeria, Justice Walter Onnoghen, claiming that the judiciary had interfered in legislative affairs contrary to the doctrine of separation of powers.

    Last Saturday Senate President, Bukola Saraki, and Speaker of the House of Representatives, Yakubu Dogara, said they are in agreement in responding to President Buhari’s refusal to sign the Electoral Act Amendment Bill.

    They pledged the lawmakers’ agreement on what is an “appropriate reaction” to the matter.

    To understand the controversy, it is helpful to consider the past, present and proposed elections sequence.

    Existing vs proposed order of elections

    Unlike Section 21 of the Electoral Act 2010 in which elections will hold on two legs – Presidential/National Assembly and Governorship/State Assemblies – the amendment is a three-leg process: National Assembly, Governorship/Assemblies and Presidential.

    The National Assembly’s proposed amendment marked as Section 25 (1) stipulates that the elections shall be held in the following order: (a) National Assembly elections; (b) State Houses of Assembly and Governorship elections and (c) Presidential election.

    How it was in the past

    The 1979 Constitution, which preceded the 1999 Constitution, adopted a presidential system of government as opposed to the parliamentary system previously in use.

    The first set of elections under this system took place in July and August 1979 with the presidential election coming last.

    The elections were contested in five stages: the Senate, the House of Representatives, the state Houses of Assembly, the gubernatorial election, and the presidential election.

    But this changed in 1983 with the presidential election coming first.

    Lessons from ‘79 and ’83 presidential polls

    The 1979 and 1983 presidential elections offered examples of how a sudden change of election sequence can affect electoral outcomes.

    The ‘79 poll featured five major candidates, two of whom – Alhaji Shehu Shagari of the National Party of Nigeria (NPN) and the late Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN) – were the leading contestants.

    The knowledge that the poll would come last foisted a need for alliances on Shagari and Awolowo.

    At the polls end, an alliance of ‘progressives’ summoned by Awolowo lost to Shagari’s conservatives in controversial circumstances. However, the progressives’ alliance  intensified between 1979 and 1983.

    According to a political scientist, Dr Anthony Akinola, key alliance leaders – Awolowo and Dr Nnamdi Azikiwe – could not agree on who would be the presidential candidate in what would be a rematch with Shagari’s NPN in the 1983 poll.

    Akinola said: “In their assumption that the electoral arrangement for the 1983 elections would follow the pattern of 1979, Chief Awolowo indicated that the trend of the elections would dictate whom all parties would support in the presidential election.”

    In his article: ‘The politics of election order in Nigeria, Akinola, author of Party Coalitions in Nigeria, said the leadership of the then ruling NPN “would seem to have smelt danger, and might have influenced the re-arrangement of the order of elections.

    “Unlike in 1979, the presidential election was the first to take place, with Shehu Shagari polling 47.5% of the votes while his main rival, Chief Awolowo polled 31.2 per cent.

    “The NPN’s unlikely victory in some states of the federation was explained by what was considered to be the bandwagon effect of its victory in the presidential election.”

    Why Buhari declined assent

    The President in a March 3 letter to Senate President Bukola Saraki declined assent to the amendment, citing probable infringement of the Constitution.

    One of the reasons said: “The amendment to the sequence of elections in Section 25 of the principal act, may infringe upon the constitutionally-guaranteed discretion of the Independent National Electoral Commission (INEC) to organise, undertake and supervise elections provided in Section 15(A) of the third statue to the Constitution.

     Why the controversy?

    Why are some lawmakers keen on re-ordering the 2019 elections sequence? Why is the Presidency bent on opposing them?

    Lagos lawyer Dr Chima Nnaji sai the answer lay in the battle for political self-survival.

    According to him, holding the presidential polls last would whittle down the incumbent’s re-election chances, should he decide to re-contest.

    Nnaji said: “I don’t know whether he has fully declared, but it appears there is a strong suspicion that he will run and that if he does, this new order will affect him because the usual bandwagon effect will not be re-enacted.

    “There are also those in the legislative and executive arm, who believe that they came into reckoning in the last elections on grounds of using Buhari as leverage.

    “So, some of them, especially in the All Progressives Congress (APC) see that if the President’s election does not come first they will be left to paddle their canoe alone in their own election and they may not have the clout to sail through.

    “On the other hand, some legislators, even in the APC, feel that if this order – as it is now – is maintained without this amendment sailing through, that because of the way they had carried on, opposing some of the Executive bills or not towing the line of the Executive, so to speak, they may not get endorsement to return to the legislative house.”

    INEC’s power over elections

    The primary source of INEC’s power over elections is found in Section 78 of the 1999 Constitution and Section 15 of the Constitution’s Third Schedule.

    Section 78 states: “The registration of voters and the conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission.”

    The Third Schedule in Section 15 (a)&(i) states: “The Commission shall have power to –

    (a) Organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

    (i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly.

    Timing vs sequence of elections

    Can the National Assembly amend the Electoral Act to re-order the sequence of elections?

    The Constitution clearly grants INEC the power to direct, supervise and organise elections. Does this power include setting election sequence?

    The Presidency and other protagonists  of  ‘no amendment’ believe that INEC’s power  extends to setting election dates and times as well as elections sequence.

    The lawmakers, on the other hand, insist that the time of elections is not the same thing as the sequence of elections. According to them, INEC’s constitutional power is limited to timing.

    Lawyers disagree

    Whose view is correct? Legal experts differed. Nnaji found merit in the lawmakers’ view.

    He said: “I believe that even grammatically, time is different from sequence. The order of birth of an individual is different from the date he was born. Somebody can be the fifth in a family of nine, but they have different birthdays.

    “There is a bifurcation of these two, whereby the sequence could be altered by the National Assembly because under Section 4 of the Constitution, the National Assembly has the power to legislate. Somebody, who cannot kill you, cannot save you.

    “The constitutional provision is a kind of guideline, framework and the Electoral Act, which was made subject to the authority of the National Assembly, provides the flesh for the INEC to be fully empowered.

    “So, this power INEC has is the power to supervise, within the framework provided by the National Assembly as the body, only body authorised to make laws for the order and good governance of the country.”

    But rights activist Femi Falana SAN disagreed, describing the National Assembly’s attempt as illegal for being in breach of the Constitution and contrary to a Supreme Court’s pronouncement. He urged INEC to ignore the proposed law.

    Falana said: “As far as the Constitution is concerned, the power of INEC to organise, undertake and supervise elections, which has been interpreted to include the power to fix the dates for the general elections or determine the sequence of the elections,  has not been altered in any material.

    “It is the height of legislative absurdity to say that the power donated to INEC by the Constitution shall be exercised in accordance with the provision of an interior legislation.

    “In Attorney-General, Abia State v. Attorney-General of the Federation (2002) 1 WRN 1 at 45, Kutigi CJN (as he then was) held that ‘where the provision in the Act is within the legislative powers of the National Assembly, but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and/or inconsistency and therefore inoperative.’”

    Falana went on: “The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision or provisions will be treated as unconstitutional and therefore null and void.

    “From the foregoing, it is submitted that the interference in the exercise of the powers of INEC to appoint dates for holding the general elections in Nigeria is illegal as the provision of the Electoral Bill, 2018 is inconsistent with Sections 76, 116, 132 and 178 of the Constitution.

    “To the extent of such inconsistency, the provision of the Electoral Bill is illegal, null and void as stipulated by Section 1(3) of the constitution.”

    Judicial ‘interference’ in separation of powers

    According to the Senate, it was wrong for Justice Mohammed to grant an order stopping the National Assembly from taking further action on the Electoral Act Amendment Bill.

    Last Thursday, Minority Leader Senator Godswill Akpabio moved a motion to state that the judgment amounted to an abuse of the principle of separation of powers.

    Akpabio said: “I have perused the Constitution and I cannot see anywhere that the court has the power to stop the proceedings of the Senate.

    “If this is allowed, it therefore, means that  in future the court can stop the National Assembly from appropriating and the country will have no budget for that year.

    “Separation of powers is a core of democracy so there is need for the Chief Justice to caution legal officers on issuing such orders geared towards interfering with other arms of government.’’

    Plot to override President’s veto

    There were strong indications on Saturday that the lawmakers had made up their minds to override Buhari’s veto.

    The Nation learnt that after accepting the legal advice which dismissed President Buhari’s basis for withholding assent to the bill, Saraki and Dogara are poised to mobilise the lawmakers to override the President’s veto.

    “The leadership of the two chambers are determined to push forward to actualise the amendment not minding overtures from certain quarters,” a source informed The Nation.

    Arguments for, against the lawmakers’ position

    Elderstatesman Prof Ben Nwabueze (SAN) faulted the court’s order on the ground that the bill is yet to become a law.

    Nwabueze said: “Nigeria is a country where strange things happen, where a court of law, whose jurisdiction is limited to the application of law in a dispute before it, can act on the basis of a bill that has not yet become law.

    “In other words, rendering an advisory opinion, which a court of law under our system has no authority to give: that the eventual enactment of the bill into law will be unconstitutional, null, and void.

    “This, indeed, is an amazing decision to come from a Federal High Court in this country.

    “…a bill is not law; as such, it cannot be an unlawful exercise of the power of law-making in as much as it may be abandoned or amended before the processes of its transition into law are completed.”

    But, according to Falana, Olanipekun, who applied for the order and Justice Mohammed who granted it acted lawfully.

    Falana reminded the Senate of the Supreme Court’s interlocutory order of May 7, 2015, which restrained the National Assembly from overriding the veto of former President Goodluck Jonathan on the 2015 amendment to the 1999 Constitution.

    Chairman, Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN), described the Justice Mohammed’s order as being consistent with the legal principle of Quia timet, meaning “because he fears or apprehends.”

    A bill in quia timet is filed by a person fearing some injury to his right or property, real or personal, from the negligence, fault or fraud of another, and not because an injury has already occurred.

    All eyes on the judiciary

    How will the controversy be resolved? For now, a judicial solution seems to be the next step.

    All parties will begin to have an idea of where they stand when the Federal High Court begins the hearing of the suit today.

  • Court dismisses lawyer’s N200m suit against Lekki residents

    A Lagos State High Court has dismissed a suit by a lawyer Mr Fredrick Chinedu Anaje, who claimed that he was denied access to a road on the Island.

    Justice Wasiu Animahun dismissed the suit on the ground that the applicant’s rights were not violated.

    Anaje sued residents of Peninsula Garden Estate in Lekki, Eti Osa Local Government Area, alleging that they erected a wall barricade on Ogombo Road without approval from the state government.

    He sought a declaration that preventing him from using the road by erecting the wall was unconstitutional and amounted to a violation of his right to freedom of movement guaranteed by Section 41 (1) of the 1999 Constitution.

    The applicant prayed the court to declare that the respondents’ act of “forcefully and maliciously” subjecting him to use an unsafe, bushy and impassable road was unlawful and amounted to “degrading and inhuman treatment”.

    He asked for an order of perpetual injunction restraining the respondents or their agents from taking any step that would infringe on his rights to movement and personal dignity.

    Anaje sought N200million in general damages against the respondents for violating his rights, as well costs of the action “on a full indemnity basis”.

    Mr Sulyman Bello, Olu Adewusi, Dr Maureen Igwe, Nicholas Adesina, Abiodun Ekeade, Funmilayo Ekeade and Femab Properties Ltd are the respondents.

    Anaje said he lives on a street in Ogombo town and that he uses the Ogombo Road, which he said was for the public, to access the Lekki-Epe Expressway.

    According to him, despite being issued with contravention notices by the state, the respondents restricted the residents’ access to the road by building the wall, thereby forcing them to use an unsafe, bushy and impassable road.

    But, the respondents, in a counter affidavit sworn to by Adesina, said Femab Properties bought the large expanse of land on which the estate and the road in dispute are.

    He said the government later confirmed that the two roads leading to the estate were private, and that it advised other residents in the neighborhood to take steps to make other access roads motorable.

    The respondents, through their lawyer Adebayo Adesola, argued that although contravention notices were issued, the wall was not demolished, which supports their claim that the government admitted that the wall was on a private road.

    Justice Animahun noted that Section 34 of the 1999 Constitution provides that every individual is entitled to respect for the dignity of his person and shall not be subjected to torture, inhuman or degrading treatment.

    To the judge, Anaje’s case is that the road’s blockage indirectly made him to commute through a road that was not motorable, which the lawyer felt constituted inhuman and degrading treatment.

    “What the case reveals is that the applicant would not have complained of infringement of Section 34 of the Constitution if the other access road is motorable. It follows that infringement of the applicant’s right arose from the deplorable state of the road.

    “It is my view that this head of claim is only maintainable against whoever made the road to be in deplorable condition,” the judge held.

    The judge, after discussing what fundamental human rights entail, said he could not hold that a citizen has a fundamental right to use good roads.

    “The conditions of roads vary. In some areas good roads are a necessity. In some, they are a luxury. In some other locations, motorable roads are not required. An example is the riverine areas.

    “In other words, the right to a good road may be recognised in law but it is certainly not an inalienable right. It does not qualify for litigation under Chapter IV of the Constitution.

    “It is a luxury in the class of economic, social and educational rights guaranteed in Sections 16, 17 and 18 of the Constitution and yet rendered unenforceable.

    “I, therefore, hold that the claims anchored on Section 34 of the Constitution are not well founded and, therefore, fail,” Justice Animahun held.

    The judge also dismissed Anaje’s claim that his right to freedom of movement under Section 41 of the Constitution was violated.

    “This appears easy. Once there is no confinement and there is an alternative route, there cannot be an infringement of freedom of movement,” he said.

    Citing the case of Adeyemo vs Akintola (2004) 12 NWLR (PT 887) 390, Justice Animahun added: “The above implies that restriction of movement will not arise where the applicant is at liberty to use alternative routes.

    “The restriction envisaged under Section 41 of the Constitution must be total. This is not the case here.

    “In view of the above, I hold that the fundamental rights of the applicant were not infringed.

    “The amended originating motion on notice dated 19/06/2017 therefore fails and is hereby dismissed.”