The Nation Newspaper

Category: Law

  • Appeal Court fights delay

    •Inaugurates new rules, case management system

    THE Court of Appeal has unveiled new rules to frustrate delay by lawyers.

    The Court of Appeal (fast track) Practice Direction, 2014 and Active Case Management Process – were unveiled before stakeholders, comprising members of the Bench and Bar in Abuja.

    President of the Court of Appeal (PCA), Justice Zainab Bulkachuwa, told the gathering that the Fast-Track Practice Direction is a set of directions, with the fundamental objective of enabling the court to deal with fast-track appeals quickly and efficiently through the introduction of the Active Case Management (ACM).

    She explained that the ACM process allows the court to adopt the best skills and case management techniques to secure efficient and speedy administration of justice.                       According to the PCA, the court is empowered, under the new Practice Direction, to sue motu (without being prompted), exercise the various case management techniques to abridge time for compliance with any rule, practice direction or court order; brig forward a proceeding, convene a case management conference and consolidate proceedings.

    Also, Paragraph 8 of the 2014 Practice Direction retains the provision in the 2011 Rules, which stipulates the size of briefs. Briefs in interlocutory appeals are limited to 15 pages, while final appeals are limited to 25 pages. It also stipulates the type of paper to be used, the font size and line spacing to adopt in preparing a brief.

    Paragraph 14 provided that the requirement that a document should be signed is satisfied and the signature is printed by a computer or other mechanical means. For instance, a document served via electronic means will be deemed to have been signed by the person, who owns or subscribed to the electronic source account if the signature appears on the document or its cover message as the sender.

    The Fast-Track case management process will be applied to appeals relating to debt cases, corruption, human trafficking, kidnapping, money laundering,  rape, terrorism and appeals involving  agencies involved in the protection of human rights, intelligence, law enforcement, as well as prosecutorial or security agencies like the Economic and financial Crimes Commission (EFCC), National Human Rights Commission (NHRC), Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the department of State Services (DSS).

    Presiding Justice of the Court of Appeal, Lagos, Justice Amina Augie said the innovations were informed by the need to curb the delay being experienced in the handling of cases in the court. She was optimistic that the measures would go a long way in curbing delay in the court process.

    The Chief Judge of the Federal High Court, Justice Ibrahim Auta agreed with Justice Augie’s observation that lawyers use the Court of Appeal to stall cases by filing interlocutory appeals, which they mostly do not prosecute.

    He urged Justices of the court to be firm in applying the new Practice Direction and case management system because lawyers will try to resist the innovations. He assured that appellate court Justices of the support of his court in ensuring the success of the new ideas.

    The Chief Judge of the High Court of the Federal Capital Territory (FCT), Ibrahim Bukar, said similar measures introduced by his court some years back failed because the lawyers resisted. He said the success of the initiatives by the appellate court was dependent on the willingness of the judges to ensure they succeed.

    “What we need most to ensure that these initiatives succeed is the judges coming together to ensure its success in achieving quick dispensation of justice. I want to believe that if the leadership of the Judiciary will stand by the judicial officers, some of these abuses will reduce,” he said.

    Justice Bukar said where lawyers intimidate judicial officers by writing frivolous petitions to the NJC was not only distracting, it was discouraging. He said judges, who go about their duties conscientiously, will only be encouraged where he is sure the leadership of the Judiciary will protect him/her.

    The General-Secretary of the NBA, Affam Osigwe, who spoke for lawyers, said it required the commitment and collaboration of the Bench and Bar to eradicate delay in the judicial process.

  • Cynthia: Judge chides defence counsel

    Justice Olabisi Akinlade has expressed displeasure with the defence counsels over the way they have been handling the defence of the accused persons in the ongoing trial of the alleged killers of  Cynthia Osokogu.

    The trial of the suspected killers at a Lagos High Court, Igbosere last week suffered another setback as  the counsel representing the second defendant, Michael Ajayi from the chambers of Mike Igbokwe (SAN) declined to proceed with his defence.

    At the resumed hearing of the case, Ajayi, who is the counsel to the second defendant was initially reluctant to proceed with the cross examination of the first defendant because of an application for stay of proceeding awaiting hearing at the Court of Appeal.

    However,  Justice Olabisi Akinlade insisted that he must proceed.

    After cross examination, Ajayi had declined to proceed with his defence. Rather he informed the court that he would not be able to open his case because his client had “shingles”.

    Justice Akinlade, however expressed disappointment with the counsel’s attitude, saying the defence had on different occasions given excuses to stall the case despite the priority accorded the matter.

    She sais counsel to the second defendant in this instance ought to have notified the prosecution prior to the court session to enable him attend to other pressing State matter instead of coming to court to waste precious time.

    Not pleased with this lackadaisical approach of the counsel, Justice Akinlade admonished the defence to conduct his case diligently next time.

    The Attorney-General, Mr. Ade Ipaye, in his reaction also expressed his displeasure in the way counsel to the second defendant was conducting the case.

    The judge consequently granted the request of the defence for an adjournment of the matter till February 18, 2015.

    It would be recalled that the prosecution had closed its case since the September 19, 2014 having called eight witnesses including a Pathologist who had given testimony as to the cause of death.

    Cynthia was allegedly murdered at Cosmilla Hotel, Lake View Estate, FESTAC Town, Lagos by friends she met on the Facebook.

    Lagos State government had taken up the matter and charged Okwumo Nwabufo 34; Olisaeloka Ezike, 24; Orji Osita, 33 and Ezike Nonso, 25, to court two years ago for conspiracy, murder of Cynthia and other related offences.

  • Synagogue: Coroner sits today

    The coroner conducting inquest on the collapse of a building  at the Synagogue Church of All Nations (SCOAN) may resume sitting today.

    The coroner, Chief Magistrate Oyetade Komolafe announced the new date following the poor turnout of lawyers and interested parties last week.

    He expressed the court’s determination to see to the end of the matter within the next two weeks.

    He, therefore, urged lawyers and interested parties against using delay tactics in the proceedings of the court.

    He urged the interested parties to use last week to view the CCTV footage already filed as evidence before the court.

    It would be recalled that the strike embarked upon by members of the Judiciary Staff Union of Nigeria (JUSUN), between January 5 and 25 made it impossible for the court to resume sitting after the Christmas and New Year breaks.

    At the last hearing December 23, last year, SCOAN’s Chief Security Officer (CSO), Sunday Okogie, in his testimony confirmed that both NEMA and LASEMA officials were not prevented from rescuing people trapped under the collapsed guest house.

    The CSO also submitted the unedited Close Circuit Television (CCTV) footages of the incident from September 12 to September 16, to the court.

    Okogie pointed out that both agencies arrived at the church about an hour after the building collapsed and gained access to the scene in less than a minute.

    Also the National Executive Co-coordinator of Life Savers Foundation (LSF), Mrs. Fola Shoetan, had told the court that the National Emergency Management Agency (NEMA) and the Lagos State Emergency Management Agency (LASEMA) were not well equipped to manage disaster situations in the country.

    The court had on December 23, adjourned till January 6, this year when it hoped that Justice Lateefa Okunnu would rule on an application filed by SCOAN founder, Pastor Temitope Joshua.

    Joshua, in his application had  prayed Justice Okunnu’s court for an order of prohibition against the Coroner’s Court of Lagos State and Magistrate Komolafe from exceeding their jurisdiction in the conduct of coroner’s inquest into the death of unknown persons in the collapsed building within the premises of SCOAN on September 12, 2014.

    He had also urged the court to issue, “An order of Certiorari to quash the proceedings of the 1st and 2nd respondents in the conduct of the coroner’s inquest into the death of unknown persons in the Synagogue Church of All Nations, Ikotun Egbe, Lagos on September12, 2014 in suit number CR/AL/01/2014 concerning matters, issues and circumstances other than what directly caused the death of the victims and the manner of their death for having been conducted without or in excess of the statutory jurisdiction of the 1st and 2nd respondents.

    “A declaration that the decision of the coroner to summon the applicants to give evidence at a time when no materials were placed before the coroner against the applicants is a breach of the applicants’ right to fair hearing.

    “A declaration that the coroner, who relied on his personal knowledge of the facts of the case, is not a proper person to preside at the inquest into the death of people at the collapsed building of Synagogue Church of All Nations.

    “A declaration that the coroner who relied on extraneous matters not borne out of the records to reach his conclusion that the 2nd applicant is a necessary witness when in fact is not, is in breach of the rules of natural justice and fair hearing guaranteed by the 1999 constitution of the Federal Republic of Nigeria.

    “An order prohibiting the coroner from conducting further inquest/proceedings relating to the construction of the collapsed building, which facts are clearly outside the scope of a coroner’s inquest.

    “An order quashing the proceedings of the coroner’s inquest in its entirety for being conducted in breach of the rule of natural justice, likelihood of blade, and for taking proceedings clearly outside the scope of the jurisdiction of the respondent.

    “An order prohibiting the respondent from insisting on the personal attendance of the 2nd applicant as such will be without or in excess of jurisdiction, unconstitutional and unlawful.

    “An order of injunction to restrain the respondents as presently constituted from further conducting any inquest into the collapsed building of Synagogue Church of All Nations, as the 2nd respondent has demonstrated personal interest in the subject matter and his neutrality clearly compromised.

    “An order of injunction restraining coroner from taking and continuing to take evidence/proceedings on the issue of approval and construction of the collapsed building, which issues are clearly outside the scope of a coroner’s inquest.”

    Owing to the strike of JUSUN, the court could not deliver its ruling on January 6, on the application.

  • NBA Commission to partner agencies on corruption

    The Nigerian Bar Association (NBA) Anti-Corruption Commission has said it would embark on necessary interface with appropriate agencies and organisations to duly imbibe best practices in order to tackle corruption in the country.

    Its Chairman, Dr. Theo Osanakpo (SAN), disclosed this in Abuja, at the inauguration of the committee by the NBA President, Augustin Alegeh (SAN). The event held at the National Judicial Institute (NJI) Auditorium Abuja, the nation’s capital.

    Alegeh said: “It is imperative for NBA to properly address decadent corruption issues in the country,” adding that the NBA Anti Corruption Commission is headed by a spotless Senior Advocate of Nigeria in the person of Dr Theo Osanakpo.

    Dr Osanakpo, in his response, said: “The Commission will duly assist the NBA to take informed position on corruption issues prevalent in the Nigerian State.

    “The Commission will embark on necessary interface with appropriate agencies and organisations to duly imbibe best practices in order to effectively tackle endemic corruption issues in the Nigerian State.”

  • State electoral commissions must be properly constituted

    Consideration of Issues

     

    Upon a deep reflection of the totality of this case and the submissions of all learned counsel for the parties, I have come to the conclusion that the disputes in this case can be resolved upon determination of the following questions:

    1. What is the proper interpretation of section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)?

    2. Has the claimant succeeded in proving that the 2nd – 8th defendants are members of the 9th defendant (People’s Democratic Party (PDP)?

    3. Was the 3rd defendant properly constituted to conduct the 4th May 2013 local government election as required under section 200 (1) of the Constitution (as amended)?

    4. If the answer to issue No 3 above is in the negative, what is the effect of such improper constitution of the 3rd defendant on the local government election of 4th May 2013?

    57. Before I consider these issues, I shall, at this stage, look into the submissions of learned counsel for the defendants that this suit has becomeacademic. Learned senior counsel for the 1st – 8th defendants and learned counsel for the 9th defendants have argued that this suit has become academic as a result of what they refer to as the retirement of the 4th – 8th defendants from the 3rd defendant and the fact that the local government election that forms the subject matter of this action had held. This may well be. However, one should not overlook the fact here that, from the issues formulated above, the interpretation of a particular section of the 1999 Constitution (section 200(1), is involved.In Agbakoba v. INEC (2008) LEPLR 232(SC),  the Supreme Court stated that an action becomes academic “when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making pronouncement upon it; it is an otherwise an exercise in futility (P. 63). Also, in Plateau State v. Attorney-General of the Federation (2006) 3NWLR (Pt 67) 346, the Supreme Court, nevertheless, stated that a suit does not necessarily become spent or academic merely because it was heard after the act or conduct which gave rise to the action. And, of more particular relevance is the pronouncement of the apex court that issues relating to interpretation of a living constitution, as in this case, cannot be dead, academic, speculative or hypothetical (See Plateau State v. A.G. Federation (supra). Consistent with these authorities, therefore, I hold that having regard to the character, nature, and contents of this suit, the retirement of the 4th – 8th defendants from the 3rd defendant and the holding of the local government election on 4th May 2013 cannot render this suit an academic exercise. This is more so, as this court is being called upon to interpreta particular section of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which is a living constitution. It is crucially important to determine the issues formulated. I so hold.

    Interpretation of Section 200(1) of the Constitution

    58. Section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) forms the fulcrum of this case. The case of the claimant is that the 3rd defendant is not properly composed in accordance with section 200(1) of the 1999 Constitution (as amended). The claimant hinges her position on the allegation that the 4th– 8th defendants belong to the 9th defendant political party (PDP), contrary to the provision of section 200(1) of the Constitution (as amended). It is argued that once it is established that any or all of the 4th– 8th defendants belong(s) to the 9th defendant, then, the 3rd defendant would not have been properly constituted to conduct the 4th May 2013 local government election in Kogi State. This position has been vigorously contested by the defendants.

    59. Originally, section 200(1) of the 1999 Constitution read as follows:

    No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly…

    Item 21of the First Alteration Act No 1 of 2010 provides:

    “Section 200(1) (a), line 2 of the Principal Act is altered, by inserting immediately after the word Assembly” the words, “provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party”

    With effect from the commencement of the amendment to the Constitution of the Federal Republic of Nigeria (First Alteration) Act No 1 2010, section 200(1) now reads:

    “No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party (Underlining mine for emphasis)

    The question that arises here is what is the true meaning of this provision?

    60. In PDP V. INEC, (1999) 11NWLRP (Pt 626) 200, the Supreme Court dealt with the approach to be adopted in the interpretation of statutory provisions which is the same as interpretation of constitutional provisions. It gave its approval to an approach which seeks to ascertain the legislative intent of the law makers. The apex court declared:

    “The current approach in construing statutory provisions requires judges to ascertain the legislative intent of the law makers, a task somewhat akin to pinpointing the intent of a testator or disputing parties to a contract. It is the modern view that proper judicial construction of statutory provisions requires recognition and implementation of the underlying legislative purpose” (Wali J.SC at pp 248 – 249).

    The essence of this approach is obviously, to maintain and sustain the fabrics of constitutionalism and constitutionality (see INEC v. BalarabeMusa (2003) 3 NWLR (Pt. 806) 72.

    61. But then, how does court discover the intention of the law makers? Again, the Supreme Court gave a guide in Ishola v. Ajiboye (1994) 6NWLR (Pt 352) 506 where the court statedthat in construing a Constitution some meaning or effect should be given to all the words or language used therein if it is possible to do so in conformity with the intention of the framers. If the language used is clear and unambiguous, its meaning and intent are to be ascertained from the instrument itself by construing the language as it is written. Unless the context suggests otherwise, words are to be given their natural, obvious or ordinary meaning.

    62. It is also recognised that one of the most useful guides to interpretation is the application of mischief rule which considers the State of law before enactment, the defect which the legislation sets out to remedy or/and prevent, the remedy adopted by the legislature to cure the mischief and the true reasons of the remedy. The duty of the court therefore is to adopt such interpretation that will enable the suppression of the mischief and promote the remedy within the true intent in the legislation (See Ifezue v. Mbadugha&Anor (1984) 5SC 79.

    63. In attempting to interpret the provisions of the Section 200(1) of the constitution (as amended), I am being properly guided by the principles of interpretation enunciated above.

    64. The provision of section 200(1) of the Constitution (as amended) quoted above clearly bars or excludes a member of a political party from membership of a State Independent Electoral Commission. The amendment changed the old order where it was possible for members of a political party to populate or constitute a State Independent Electoral Commission. The amendment of section 200(1) of the Constitution, in my view, reveals a determination on the part of the Legislature to ensure that membership of a State Independent Electoral Commission consists of persons that are politically neutral who will discharge the responsibilities of organizing, undertaking , and supervising all elections to local government councils within the state with transparency, thereby securing the confidence of not just the political parties involved in such elections but also that of the general public. To construe the provision of Section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) otherwise would be contrary to the letter and spirit of the constitution.

    Issue No 2. Are the 4th – 8th Defendant Members of the 9th Defendant?

    65. The evidence of the claimant’s witness on this relates issues to the 4th and 5th defendants. Facts were pleaded in paragraphs 17, 18, 19 and 20, specifically alleging that the 6th and 7th defendants. However, in his oral evidence before the court, nothing was mentioned about the said defendants membership of the 3rd defendants. It is trite that pleadings, however strong they may appear to be, without evidence or proof thereof, go to issue. Evidence must be led to prove facts relied upon by a party or sustain the allegations raised in the pleadings. (see UBN Plc v. Astra Builders (WA) Ltd (2010) 2SCNJ 84. A mere averment in pleadings without evidence proves nothing unless admitted. (See George v. Dominion Flour Mills Ltd (1963) 1SCNLR 117. The averments paragraphs 17, 18, 19 and 20 of the claimant’s amended statement of claim, in so far as they relate to the allegation of the 6th and 7th defendants’ membership of the 3rd defendant are hereby discountenanced for want of proof.

    66. In respect of the 4th defendant, Barrister Abraham A. Olaniran, Chairman KOGSIEC, CWI testified to the fact that he is a member of the 9th defendant who contested the primaries of Kabba/Bunu constituency of Kogi State House of Assembly under the platform of the 9th defendant on 4/1/2011 for the April 2011 general election but lost. CW1, indeed, described him as “a stalwart of People’s Democratic Party”. He tendered a certified true copy of INEC Kabba/Bunu Local Government Area Report on PDP primaries for the Kogi State House of Assembly. The document shows that seven aspirants contested the primaries. The name, Barr. Abraham A. Olaniran, the 4th defendant, is No 3 on the list. It is indicated therein that he scored 10 votes. The highest number of votes in the said. Primaries went to TaiwoOjo Nathaniel, who scored 203 votes.

    67. It is significant to mention here that, although, the 4th defendant against whom such formidable and strenuous allegations were made never came up to give evidence. And DWI, Hon. AmokaSuberu, the 1st – 8th defendants’ sole witness never did as little as alluding to any fact in defence of the allegations. It is elementary that a statement on oath that is not adopted at trial is moribund as it is deemed abandoned.

    68. Similarly, 5th defendant, Hon. David Apeh, who is alleged to be a card carrying member of People’s Democratic Party (PDP) i.e the 9th defendant and had enjoyed and continued to enjoy political patronages in the form of plum appointments from PDP governments at various times, gave no evidence, in spite of the fact that he filed an elaborate 20 – paragraph witness  statement on oath. It is hardly necessary for me to state here that by its very nature and character, a witness statement on oath cannot speak. It speaks through a witness, and as long as a party refuses or fails to adopt it to articulate its content, it remains a dormant process in the court’s file.

    69. The implication of the foregoing is that I am left with no other option than to accept the evidence of the claimant’s witness on the points relating to the membership of the 4th – 5th defendants of the 9th defendant/political party (PDP). Section 135(1) of the Evidence Act 2011 is clear on this point as it provides. “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists”. In Baba v. Nigerian Civil Aviation &Anor (1991) LPELR – 692(SC), the Supreme Court stated clearly that “wherever on an issue evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it. So, when evidence goes one way, the onus of proof is discharged on a minimal of proof”. (Nnaemeka-Agu, JSC, P. 32). Flowing from the above principles, I am bound to accept the evidence of CW1 that both the 4th and 5th defendants are members of the 9th defendant (PDP). I accept same.

    Issues Nos. 3& 4 – Was the 3rd Defendant properly constituted or composed to conduct the 4th May 2013 Local Government Election in Kogi State? If notwhat is the Effect?

    70. The issue at stake here calls for the application of the provision of section 200(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended) to the facts established in this case. At the risk of repetition but for purposes of clarity, the said section is reproduced hereunder:

    “No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party(underlining mine).

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    There is no doubt that as at the 4th May 2013, the 4th defendant, was the chairman, Kogi State Independent Electoral Commission while the 5th defendant was a member. The uncontradicted evidence before me has established that both the 4th and 5th defendants are members of Peoples’ Democratic Party (PDP). The evidence shows that the 4th defendant even contested the primaries for the Kabba/Bunu constituency under the platform of the 3rd defendant on 4th January 2011. The INEC report of the said primary (exhibit 8) reads:

    “The PDP primary into Kogi State House of Assembly Kabba/Bunu Local Government Area chapter was held on the 4th January 2011 the primary was observed by the following the INEC, the SSS, the police and other Security agencies and the State representatives of the party. There were 344 delegates that attended the primarily election from all the 15 wards on the Local Government. There are also 7(seven aspirants into the State House of Assembly. They are as follows:

    1. Barr. Olowomoran D. Kayode.
    2. TaiwoOjo Nathaniel
    3. Barr. Abraham A. Olaniran
    4. Barr. Michael James
    5. Aribido Funsho
    6. Femi Obalemo
    7. BuramohFolorunsho.

    The primary was conducted in a peaceful manner and condusive atmosphere. Throughout the duration of the primary, the activities (sic) was like a marriage ceremony with pomp and pageantry.

    Below is the result.

    Names of Aspirant                                                                                                          No of votes Cast

    1. Barr. Olowomoran D. Kayode     13 votes
    2. TaiwoOjo Nathaniel                                        203 votes
    3. Barr. Abraham A. Olaniran                           10 votes
    4. Barr. Michael James                                        15 votes
    5. Aribido Funsho                                 1 vote
    6. Femi Obalemo                                                  80 votes
    7. BuramohFolorunsho.                                     14 votes

    Total                                                                      336 votes

    The total votes cost 336 while 8 votes counted void.

    Above is hereby submitted.

    AyilaraOlarewaju                             Uhuami O. Usman

    Monitor                                               Monitor

    71. It is significant to note here that as at 4/1/2011 when the primaries held, Section 200(1) of the Constitution had been amended to bar members of political parties from becoming members of State Independent Electoral Commission. Mr.Akubo, SAN, has argued that the amendment to section 200(1) of the constitution does not have a retrospective effect. He is very correct and I agree with him. What this means is that from July 10 2010, when the amendment took effect, no member of any political party can be a member of any State Independent Electoral Commission let alone its chairman. It also implies that by the application of section 200(1) of the Constitution (as amended) the 4th defendant already stood disqualified as chairman of KOGSIEC as far back as 2011.

    72. In respect of the 5thdefendant, his membership of KOGISEC, which was still in force as at the time of 4th May 2013 election, as the evidence before me reveals, is a reward for his patronage and membership of the 3rd defendant. This is in addition to his earlier membership of Federal Hospital Management Board, a position he was said to have held for four years. Upon the amendment of Section 200(1) of the Constitution, the 5th defendant also stood disqualified from being or remaining a member of the 3rd defendant.

    73. It has to be appreciated here that a body like KOGSIEC has a very special role to play in our constitutional democracy. It is the organ that is constitutionallyempowered “to organize, undertake and supervise all elections to local government councils within the state” (item 4 Third schedule to the Constitution (as amended).

    74. The amendment of section 200(1) of the Constitution, in my humble view,is designed by the law makers to promote the principles of fairness, independence and transparency. It also expresses the notion of neutrality. These are not abstract notions. For instance the notion of independence reflects in the name of the 3rd defendant (Kogi State Independent Electoral Commission). As an umpire, Kogi State Independent Electoral Commission must not only be neutral but manifestly be seen to be so neutral. Given the centrality of these notions of neutrality and transparency, embedded in the work and functions of a State Independent Electoral Commission, it will be inappropriate to interpret section 200(1) of the Constitution (as amended) in a way to suggest that  the chairman of  such a commission can go completely out of his way, not only to join a political party but proceed to contest the primaries of an election under the umbrella of a political party and come back to organize an election involving his party and other political parties, as it shockingly happened in this case. And this is after the Constitution had been amended in terms of section 200 (1) of the Constitution (as amended). Any claim to neutrality, integrity, transparency and fairness in favour of such body headed by such a person goes to no issue. The truth is that, the Constitution has, by that singular act, been violated with a tincture of impunity.I, therefore, hold that the membership of the 4th and 5thdefendants of the 3rd defendant, including the contest of primaries by the 4thdefendant under the platform of the 9th defendant (PDP) compromised, irredeemably, the integrity and neutrality of the 3rd defendant to hold the May 4, 2013 local government election in Kogi State.The claim of the retirement of the 4th to 8thdefendants in February 2014 only begs the issue. It also shows that they were being clever by half, having waited to conduct the election before their retirement. By the time of the amendment of the Constitution in 2010, they already had their hands soiled with partisanship, as the evidence before me demonstrates, by which they stood disqualified from membership of the 3rd defendant. From the foregoing, I, therefore, hold that as at 4th May 2013, the 3rd defendant was not properly constituted in accordance with section 200(1) of the1999 Constitution of the Federal Republic of Nigeria (as amended).

    75. The direct consequence of this is that all the acts and actions of the defendants in relation to the local government election conducted by the 3rd defendant on May 4, 2013 become a nullity. When a constitutional body like the 3rd defendant is not properly constituted as required by the relevant provisions of the Constitution, it is like a court or tribunal that is not properly constituted. Any process issued or trial conducted is a complete nullity ab initio. (See Madukolu v. Nkemdili (1962) 2SCNLR 341).Accordingly, I pronounce the election of 4th May 2013, conducted by improperly constituted commission, Kogi State Independent Electoral Commission (KOSIEC), the 3rd defendant a nullity. That is to say, the election is hereby treated as void as having never been conducted.

    76. As regards the effect of this conclusion on the elected chairmen and councillors, there is no way those elected under the void election can be allowed to benefit from such flagrant breach of the Constitution. It is settled beyond any conjecture that one cannot put something on nothing and expect it to remain there. It will collapse (Macfoy v. UAC (1961) 3 NWR 145). So it is in this case.

    77.In order to fill the vacuum that may be created by this conclusion, I hereby  make an order directing that the most senior director of the local governments assume responsibility for each local government pending when another local government election is conducted.

     

     

    Conclusion

    78. Under our constitutional democracy, the Constitution is the supreme law, the grundnorm.  (Section 1 (3) of the Constitution as amended). It is binding on all authorities and persons. This court has been given the responsibility of being the ultimate guardian of the Constitution and its values. Section 1 (3) of the Constitution (as amended) stipulates that if any action is inconsistent with the provisions of the Constitution, the court will be obliged to declare such an unconstitutional and invalid as I have done in this case. The primary duty of the court is to uphold the sanctity of the Constitution and the law which must be applied impartially and without fear, favour and prejudice.

     

    Hon. Justice Alaba Omolaye-Ajileye

    Judge

    08/12/2014.

    Counsel Representation

    Ocholi James, SAN for the claimants(Isaac Ekpa Esq, and S.J. Akos (Miss) with him).

    P.A. AkuboSAN for the 1st – 8th Defendants (J.A. Akubo Esq; D.I. Ugbe, Esq; L.C. Ani (Mrs) Alaji Jacob Esq and U.S. Ovaasa) with him).

    EmejeAruwa Esq for the 9th Defendant (Alex Audu Esq with him).

  • The plot against Jega

    Prof Attahiru Jega, the Chairman of the Independent National Electoral Commission (INEC) is in the eye of a storm. According to the Peoples Democratic Party, the electoral umpire is cavorting with the opposition, and should resign. On the other side, the All Progressive Congress insists that it will be unfair to change a referee, in the middle of a match, just because one partyis afraid of losing the election. To distract the electorate, the INEC chair has become an object forodious attacks, even when those accusing him, are yet to present convincing evidence of the man’s partisanship.

    Prof Jega who conducted the highly regarded 2011 elections, stoically maintains his innocence, assuring all that he will rather resign that compromise his position. Those accusing him of compromise however continues to muddle up the process. The main plank of their argument is that states considered to be the stronghold of Buhari have collected more permanent voter cards than where Jonathan has more supporters. The Director-General of President Jonathan’s campaign, Ahmadu Ali, gave example of Bornu in the northeast, where the blood thirsty Boko Haram are reigning, but has collected more permanent voter cards than Lagos. But that argument is untenable, because Kano, an APC stronghold suffers similar faith with Lagos.

    Even the believe that President Jonathan of PDP has better chances in Lagos, than Gen. Buhari of APC,is not based on any empirical evidence. So, why all the fire directed at Prof Jega. Again, the PDP claims that Professor Jega had an untoward rendezvous with the APC in Dubia. In making this claim, the PDP did not bother with providing date, persons or agents of the party involved in this unholy alliance. Unless the proponents of this tale have facts to buttress their claim, it cannot amount to anything, but mere rumour.

    Another unfair cut against the Professor, is that because he is from the north, he has been coerced by the Emirs to unconscionably work to return Gen. Buhari, a fellow northerner, as the winner of the upcoming presidential election. The proponents of this argument have not mentioned instances of change in attitude by Jega, considering that he conducted the last presidential election in 2011, won by President Jonathan, against Gen. Buhari and other northern candidates. Again, there is no suggestion as to where and whenthe meeting took place, and those present.

    As the partisans recklessly trade claims as to the sincerity of Prof Jega and his election management body, the Nigerian electorate is left confused as to who to believe. Unfortunately, former President Obasanjo while rightly insisting that Professor Jega should not be sacked, gave himself away as a partisan, whose real intent, as the PDP claims, is even scarier.In his unstatesmanlike tantrums against President Jonathan and their party, the PDP; Obasanjo claimed that Jonathan is scheming against Jega and the electoral process, because he is afraid that an elected Buhari could send him to jail.

    Former President Olusegun Obasanjo went on to disingenuously ask Buhari to reassure Jonathan, as if the election has already been won and lost. I guess that if Jonathan should be scared about jail under Buhari, then Obasanjo too should;after all, while late President Yar’Adua presided, there was real fear that Gen. Obasanjo had many infractions to answer for. In his further interrogatories, former President Obasanjo rightly condemned the military intervention in the electoral process, but INEC also bears responsibility for allowing the initiative to slip away. Considering that INEC was not truly ready, it should have on its own, postponed the election for just about two or three weeks, instead of the lie that it was ready.

    Now with the valentine day presidential election truncated, President Jonathan,must like the Roman Emperor, Julius Ceasar, confront the Idesof March.If he is misguided to go for the legs again instead of the ball, that will be a second foul, and it will be fair to give him a red card. Never mind that INEC was insincere as to its readiness, the reason why the elections were shifted, is the one given by the security agencies, that they are not in a position to provide security, during the election. As President Jonathan duly acknowledged during his recent media chat and the cocktail with the diplomatic corps, no sensible person would accept the security bogey, to push forward the elections again.

    If President Jonathan is however persuaded to remove Professor Jega, at the risk of plunging our country into chaos, then he can only do so under section 157(1) of the 1999 constitution as amended, which requires the president to act “on an address supported by two-thirds majority of the Senate praying that he [Professor Jega] be so removed for inability to discharge the functions of the office….”Again if the President chooses that road to Golgotha, he must contend with the Supreme Court verdict in Bamgboye vs University of Ilorin, to wit “When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by stature…. In the matter of discipline of such a person, the procedure laid down by the applicable law must be fully complied with….”

    But for me, considering the good luck that came President Jonathan’s way, to thrust him up,first as vice president and then acting president; and the fact that against all odds, he won the 2011 elections as President, gifting him, six years as Nigeria’ president, it wouldbe silly and suicidal for him to agree to any unconstitutional conduct to hold on to power. While President Jonathan is entitled to enthusiastically seek a fresh term, if he chooses, it would amount to eternal foolishness, to play desperate games about that.

  • Okorocha appeals reinstatement of ‘monarch’

    Imo State Governor, Owelle Rochas Okorocha has filed a fresh appeal at the Supreme Court against the decision of the Court of Appeal reinstating the sacked Chairman of Imo State Council of Traditional Rulers, Cletus Ilomuanya.

    Okorocha had, in his maiden broadcast on June 6, 2011, dissolved the Imo State Council of Ndi Eze. Ilomuanya challenged the governor’s decision in the court.The High Court decided the case against him, prompting him to appeal at the Court of Appeal, which reinstated him.

    Okorocha, who was dissatisfied with the Court of Appeal’s decision, appealed to Supreme Court.

    Last Thursday, when the case was called at the Supreme Court, Justice John Fabiyi (who presided) struck out the suit on the ground that the appellant failed to first obtain the court’s leave as required.

    Imo State’s Attorney-General and Commissioner for Justice Chukwuma-Machukwu Ume (SAN), who represented Okorocha, restated the case by filing a fresh one marked: SC9/ 2015.

    Okorocha wants the apex court to hold that the five-year tenure of Ilumounya had elapsed on January 28, this year, having  been appointed on January 28, 2010 by the state’s former governor, Ikedi Ohakim.

    Okorocha also filed a motion for a stay of execution of the Court of Appeal judgment pending the determination of his fresh appeal.

    Relying on the decision of the Supreme Court in the case of Rashidi Adewolu Ladoja and the Independent National Electoral  Commission (INEC), Okorocha argued that Ilumounya’s tenure could not be extended.

    The state’s Attorney General has, however, petitioned the Inspector-General of Police Suleiman Abba over the alleged attempt by Ilumounya to mislead the public on the appeal which is still pending.

    Copies of the petition were also sent to the Imo state Police Commissioner and the Deputy Chief Registrar of the Court of Appeal.

  • Abuse of federal might

    Abuse of federal might

    The Independent National Electoral Commission (INEC) postponement of the February 14 and 28 elections as scheduled has drawn the ire of some lawyers and activists. To them, there is more to the postponement than meets the eye. If insecurity is the only reason for the shift, then the Service chiefs should go. The lawyers and activists hope the shift will not throw Nigeria into another constitutional crisis, writes Correspondent PRECIOUS IGBONWELUNDU.

    Throughout Saturday, Nigerians waited on the Independent National Electoral Commission (INEC). They were eager to know whether INEC would postpone the February 14 and 28 elections as scheduled. When INEC postponed the elections late Saturday night citing security reasons for its action, their response seemed to be “here we go again, is this not June 12 all over again?” INEC Chairman Prof Attahiru Jega said the elections were postponed to March 28 (Presidential and National Assembly)  and April 11 (Governorship and House of Assembly).

    He denied that the commission was coerced to shift the polls, saying the postponement became inevitable because of the advice from security agencies. He said there was no way INEC could expose over 600,000 ad hoc staff and others to danger.

    He also denied acting any script on behalf of the ruling Peoples Democratic Party (PDP), saying the elections were postponed  because security attention would be on the Northeast during the period.

    “It should be noted that this rescheduling falls within the constitutional framework for the conduct of the elections, notably, Sections 76(2), 116(2), 132(2) and 178(2). See also Section 25 of the Electoral Act 2010 (As Amended).

    1909F01_Attahiru-Jega“For the avoidance of doubt, we will under no circumstances approve an arrangement that is not in line with the provisions of our laws,” Jega said.

    He continued: “Last Wednesday, which was a day before the Council of State meeting, the Office of the National Security Adviser (NSA) wrote a letter to the Commission, drawing attention to developments in four Northeast states of Borno, Yobe, Adamawa and Gombe, experiencing the challenge of insurgency.

    “The letter stated that security could not be guaranteed during the proposed period in February for the general elections. This advisory was reinforced at the Council of State meeting on Thursday where the NSA and all the Armed Services and Intelligence Chiefs unanimously reiterated that the safety and security of our operations cannot be guaranteed, and that the Security Services needed at least six weeks within which to conclude a major military operation against the insurgency in the Northeast; and that during this operation, the military will be concentrating its attention in the theatre of operations such that they may not be able to provide the traditional support they render to the Police and other agencies during elections…”

    Some analysts said the postponement became inevitable the moment the NSA Sambo Dasuki first called for a shift, because of low distribution of Permanent Voter Cards (PVCs).

    Those who questioned the postponement because of insecurity said if the military could not quell the insurgency that has ravaged the country unabated in the last six years, can it do so in six weeks?

    Many are not convinced that the NSA is not playing out the Presidency’s script. Speaking at the Chatham House in the United Kingdom (UK) on January 22, Dasuki said elections should be postponed because INEC needed more time to distribute the PVCs.

    After deliberations by the Council of State where INEC said it was ready to go on with the polls, the NSA brought up the issue of insecurity, seemingly tying INEC’s hands. It was no PVCs, but insecurity, according to the gospel of Dasuki. As NSA, is he just waking up to the issue of insecurity, which the nation even battled with in 2011 and yet elections were held then?

    Observers note that the Presidency, INEC,  parties and security agencies have been preparing for the polls since 2011 election, wondering why the NSA is suddenly realising that security could not be guaranteed for the exercise as scheduled.

    To them, there is more to the postponement than meets the eye because it remained doubtful what would happen in six weeks that could not have happened in the past six years.

    A source of concern is the confidence of voters in the electoral process. There are those who say the postponement became the last option after it became clear that President Goodluck Jonathan may not win re-election. What other plan do they have in store?

    Civil Society groups led by the Nigeria Civil Society Situation Room believe that the military chiefs and the Inspector-General of Police are no longer deserving of their posts for writing to INEC that their men would not be available for election duty until after at least six weeks.

    “The Situation Room calls for the resignation of the military chiefs and security heads, including the Police on account of their inability to exercise their constitutional responsibility to secure lives and property at all times including during the elections,” the coalition of civil society organisations said.

    Despite INEC’s explanation, analysts believe the commission was arm-twisted by the Presidency through the security chiefs to shift the elections. They described Jega’s new stance as compromising, adding that it indicated that INEC is not independent as claimed.

    Although the commission followed constitutional provisions by not extending the election dates to a period that will be less than 30 days to May 29 handover, some lawyers argue that INEC lacks the legal and moral rights to shift the presidential election.

    Constitutional lawyer Norrison Quakers (SAN) maintained that INEC’s power to cancel or postpone elections is only for National and Houses of Assembly elections, which do not have to do with the entire voting population of the country or a state.

    He said since election results are expected to be collated and announced at the same time for governorship and presidential elections, the commission cannot assume right on an issue where the Constitution is silent.

    He said:  ‘‘The only person empowered by the Constitution to postpone a general election (presidential) is the President and this power he cannot exercise in isolation. The Constitution clearly provides that when the territory of Nigeria is at war (not a section and not insurgency) and the president feels it will be practically impossible to conduct an election, he will write the National Assembly seeking an extension and the legislature upon approval, will postpone the election to a period of not more than six months.

    ‘‘Aside being morally wrong, what INEC has done by postponing the general elections is unconstitutional and not tenable.’’

    For activist lawyer Prof Itse Sagay (SAN), INEC exhibited its lack of independence and bowed to the rule of force in postponing the elections.

    ‘‘There was no reason elections should not hold as scheduled. All the political parties have made their plans, including campaigns, posters, finances and other necessary arrangements to suit the February date. Also, INEC has its plan laid out to that effect. The postponement will destabilise the polity and create uncertainty.

    ‘‘Is it within the next two months that they want to quell Boko Haram that they have been unable to do these past years? This action will demoralise voters, create more expenses. It just means that INEC has been influenced and no longer independent. Prof. Jega never said anything about postponement until the NSA did and was later joined by all the operatives of the PDP.

    ‘‘So, it is correct to say that INEC has collapsed under pressure. Everyone took the postponement rumour for granted until PDP loyalists started raising dust about it. This shows there is lack of independence and it will affect everyone’s disposition on the outcome of the election when it is eventually held since INEC can be pressurised into changing its mind,’’ said Sagay.

    Former Nigerian Bar Association (NBA) president Oluwarotimi Akeredolu (SAN) described the reason for the poll shift as “lame”.

    “The reason for the shift is lame. INEC was never independent. INEC has confirmed that it remained castrate in the present arrangement where it depends on the Federal Government for everything, including breath.

    “The Federal Government shenanigans in arriving at the ultimate postponement of the elections must be condemned by all well-meaning Nigerians. What we have witnessed is Government Magic. They have just turned green to blue and electric to candle (apology to Fela Anikulapo-Kuti),” Akeredolu said.

    AjibadeDr Babatunde Ajibade (SAN), said the PDP-led government is playing a dangerous game that could precipitate a serious constitutional crisis.

    “While it is within the statutory powers of INEC to postpone elections, it is not expected that INEC’s decision should be compelled by advice received from agencies of the government in power, such as the security agencies that have so obviously and brazenly compelled this decision.  This derogates from the supposed independence of INEC and leaves it at the mercy of the government of the day.

    “There is no reason to believe that the reasons adduced for compelling this postponement, viz. the security situation in the Northeast of the country and a consequent shortage of military personnel will abate in six seeks, so what then?  A permanent postponement until the security situation abates?

    “If elections could be held in Afghanistan despite the long-running and still ongoing insurgency by the Taliban, it is incredulous for Nigerian security agencies to insist that elections cannot hold because of security challenges in the Northeast.

    “The (mis)handling of electoral contests have always been potential flash points in Nigeria’s history. We are skating on very thin ice now and must pray that commonsense will prevail and that history will not be allowed to repeat itself,” Ajibade said.

    George Oguntade (SAN) 2To George Oguntade (SAN), there is no doubt that INEC possesses the requisite constitutional powers to fix the dates for elections, which will include the power to postpone. The constitutional limitation to this, he said, is that the election must be held and concluded within a specified period before the expiration of the tenure of the existing Government.

    “However, in fixing the date or postponing from a fixed date, INEC is obliged to act reasonably and in the interest of the country. It is not to act whimsically or capriciously. The main question, therefore, is whether in reaching its decision to postpone the elections for a period of six weeks, INEC acted reasonably and in the best interest of the country.

    “The reason canvassed is that the security agencies have advised that they cannot guarantee the provision of the requisite security cover because of the military challenges they are confronted with in the Northeastern part of the country.

    “This decision will immediately appear to be a volte face on the part of INEC, which being aware of the security situation for some time, had always maintained that the elections will proceed as scheduled. What major calamity has therefore happened of late to warrant this sudden u-turn a week to the elections?

    “Furthermore, the security challenge that has been provided an excuse for the postponement  has been going on for the past five years or so. What is the likelihood that in six weeks time, the security situation will be different from what it is today?

    “Again, what is the numerical strength of the Nigerian Army and security agencies in Nigeria such that they cannot continue their military activities in the North as well as provide necessary cover for the elections? Is it that Nigerian Army is so weak and decimated that it cannot face offensives on the different fronts simultaneously? There are endless questions to be asked,” Oguntade said.

    He said without any clear evidence, it would be premature and presumptuous to accuse INEC of playing politics, moreso, when the decision to postpone is recognisable under the constitution.

    “What INEC needs to do is to ensure that on its part, PVCs are distributed nationwide as far as possible and that it is fully ready to proceed. It is equally necessary to engage continuously  with the security agencies and let them see that to avert any national crisis, the elections must go ahead in six weeks as re-scheduled, and that this being so, arrangements must be put in place to provide necessary security cover regardless of what is happening in the North,” he added.

    Dr Joseph Nwobike (SAN) said his understanding of grounds upon which elections may be postponed suggest that the decision to postpone an election must be that of INEC.

    “In other words, once INEC is satisfied that the circumstances which warrant the postponement of an election have occurred, it is entitled to postpone the election to another date within the time allowed under the Constitution and the Electoral Act for the conduct of the election.

    “In this instance, INEC has, through its Chairman, adduced some reasons for postponing the elections. Whether or not those reasons are compelling and verifiable cannot be questioned by public opinion.

    “What we should all do is to continue to have confidence in INEC and the electoral process.  In doing so, it behoves the political class and the political parties to manage the information that they feed their followers and members.

    “As pointed out by INEC, this postponement would also afford it opportunity to further train the engaged adhoc staff on the electoral and voting processes. I also believe that they will also use this opportunity to do more in terms of voter education and logistics simulations.

    “Thus, the postponement will not only enable the security agencies to mobilise for the elections but would also assist INEC in the overall discharge of its constitutional responsibility.

    “On the basis of the foregoing and the decision of INEC, I call on Nigerians to continue to support INEC in this critical and trying period of our nation building,” Nwobike said.

  • ‘States should enforce judicial autonomy’

    ‘States should enforce judicial autonomy’

    Mr Uwemedimo Nwoko is the Akwa Ibom State Attorney-General and Commissioner for Justice. An activist-lawyer, he was called to bar in 1992 and was in private legal practice until his appointment. He tells JOSEPH JIBUEZE his plans for the justice sector.

    You challenged the former Governor Victor Attah administration over some constitutional issues. Have things changed now?

    I have always insisted on compliance with the Constitution. The autonomy for each of the three organs of government and the three tiers of government in Nigeria are constitutional. They are not things that are left to the whims and caprices of individuals. I do insist there should be autonomy for these organs and tiers of government. Fortunately for me, we are one of the few states that comply with the constitutional provision of giving autonomy to the judiciary even before the judgment in favour of the judiciary staff. That is why Justice Ademola struck out our names after we applied and showed evidence that we have already complied with the provision of the Constitution in respect of giving autonomy to the judiciary. That is why we are not bound by that judgment. I am lucky to come from a state where the independence of the judiciary had already been applied even before judiciary staff at the national level went to court.

    What was your case for councils?

    I have always maintained that the local governments should be made to stand as an independent tier of government in terms of managing their finances and my position has not changed. My opinion is that the law, Section 162 of the Constitution, as it stands makes it is very clear that the finances of the local government should be paid directly to the local governments. This joint account manipulation by some states is what is creating a problem. All that we need to have are governments at the various levels sitting down and ensuring the application of that law. It would be nice to have a system where local governments have their funds directly paid to them, even if it goes through the Joint Account as it is being operated. All that is needed to be done is for the local governments to come out with their own format. I have attended Joint Account meeting in Akwa Ibom and I saw that they all discussed and agreed on modalities they want to apply. I believe that as far as Akwa Ibom is concerned that position is being applied. It may not be the same with other states.

    Your appointment came as the Governor Godswill Akpabio administration is winding down. What impact can you make with the short time?

    Well, the administration of the Chief Godswill Obot Akpabio is actually winding down, but the government of Akwa Ibom State is not. There is still work to be done. As far as the business of the government is concerned, every minute is material. There is still a lot of room to make impact in the administration, and I am very grateful to Governor Akpabio for giving me the opportunity even for this brief period to be part of the success story of his administration.

    What areas of the justice sector would you like to focus on?

    The concerns of the Ministry of Justice as far justice delivery system is concerned are the protection of human rights, compliance with the rule of law and the Constitution and giving room for the citizens to enjoy the fundamental human rights. I was appointed into a government with excellent credentials as far as human right is concerned. There is room for improvement.

    What are these specific areas?

    I will be working toward further decongesting the prisons and our courts; to ensure that the rights of citizens are respected and that the rule of law is applied. Beyond that, I am working towards instituting a legal framework to enhance the performance of the staff of the Ministry of Justice in making contribution to the state’s justice delivery system. I have discovered that a lot of criminal cases run into difficult quarters in the cause of prosecution. I have decided to establish a synergy between the ministry and the police. There should be a monitoring of the police investigation so that whatever needs to be put in place are brought into place immediately.

    The three Attorney-Generals who served under Akpabio were said to have fallen out with him. Will you be different?

    All of them are entitled to their own rights and ambitions. They are people I respect to a great deal. In fact, I spoke on phone with my immediate predecessor, Ekpenyong Ntekim, and he promised me his assistance where and when necessary. I also believe that if in one way or the other there are some minor differences, it is part of the democratic processes. I can assure you that within a very short time all of them would come back and eat at the same table.

    It has been said that Attorneys-General abuse their powers. Is that true?

    If somebody says a particular Attorney-General is abusing the provision of nolle prosequi he should be able to give statistics and instances. I would not, for instance, use what happens in Lagos State to judge Kano State. Every individual state has its own peculiarity. If somebody is saying the Attorneys-General are abusing their powers, I think it is a wrong judgment. If somebody sites instances, with reference to the particular instances, we can then appraise the action of the Attorney-General in question. It is then that we can give an informed judgment of the action of that particular Attorney-General. Making such blanket statement is unfair to the Attorneys-General.

    Do you foresee a free and fair election in Akwa Ibom State?

    Governor Akpabio that I know is determined to have a free and fair election in the state and he is providing every facility and enablement, within the limit of his office, for that purpose. He would not mind who wins or loses. But as far as he is concerned, within the domestic arrangement of his political party and as a governor he is entitled to be interested in who should come out as a candidate of his political party and, possibly succeeds him. He would be a failed governor if he fails to take interest in who succeeds him but his interest would not influence the outcome of the general elections, which is to be conducted by the Independent National Electoral Commission (INEC). As a member of a political party, a loyal one for that matter, and in this case the Leader of the party in the state, he has the capacity and obligation to ensure that the primaries of his political party are held in a free and fair environment. The governor is determined to have free and fair election in the state and he is not going to influence the outcome of the elections. He will, within his capacity ensure that those who win are those the people actually want.

    Why were you in support of another national conference?

    I  am of the opinion that the most important issue that should had been placed on the table of the last National conference in Nigeria would have been for Nigerians to discuss their readiness or otherwise to remain together as people of one nation. That particular aspect which I see as the most important and critical was left out from the terms of reference of the last conference and what that means  is that we are going to come back to face that question. One day we would answer whether Nigerians are still ready to live together as people of one nation. If you check through the present electioneering and the incidents that follow them you would get to find out that there is still doubt as to the readiness of Nigerians to continue to live together as citizens of one indivisible, indissoluble sovereign nation. The questions again arise: Are we ready to bury our differences and past experiences and come together to work as a people of one nation? Are we still whipping and fanning the embers of discord? What has changed between 1914 when the amalgamation was done and today? What is the difference between the attitude of Nigerians after the civil war in 1970 and today? How have we been able to handle the issue of fiscal federalism? Have we been able to resolve the issue of resource control? Most of those things are treated on the surface superficially.

    How do you mean?

    The average Southsouth person, including myself, believes that the foundation of the Nigerian nation, which was formed under the Republican Constitution of 1963, was completely eroded by the intervention of the military in the Nigerian politics. I keep on referring Section 140 (1) of the 1963 Constitution which peg resource control at 50 per cent to the regions. The military came up and wiped it out and reduce it to zero. The Southsouth demanded at the last National Conference that it should be raised 25 per cent but the North fought it to a standstill and that issue was not resolved. Do you expect the Southsouth person to be happy? Instead of resolving our fundamental issues we keep managing them. The trouble is actually incubating; it is just becoming a more vicious and explosive time bomb waiting for its appropriate time to explode. There will definitely be another national conference.

     

  • Judges, lawyers decry non-use of labour law report

    Judges, lawyers decry non-use of labour law report

    Judges and senior lawyers have decried the poor reference to Nigeria Labour Law Report (NLLR) by lawyers, urging them to get acquainted with the report to further enhance jurisprudence.

    They make the call at the weekend during a colloquium on Employment law and practice in Nigeria, organised as part of activities marking the 50th birthday of the Publisher, NLLR, Enobong Etteh.

    It had as theme: Advancing the frontiers of Nigerian Law through Law reporting; Nigerian Labour Law Reports as a case study.

    At the event were Justices Habib Abiru of the Court of Appeal and Stephen Adah of the Rivers High Court; Justices of the National Industrial Court (NIC), Prof. James Agbadu-Fishim and Prof. Benedict Kanyip; a labour law guru, Prof. China Agomo; Health Law expert, Gani Adetola-Kaseem (SAN); James Ocholi (SAN) and Solomon Awomolo (SAN), among others.

    The stakeholders noted that the use of the NLLR among practitioners was below the average despite the fact that the publication has been in existence for a decade.

    They said there have been milestone and classical judgments delivered by the NIC and reported by the NLLR, but most lawyers, who are ignorant of the judgments, most times cite cases out of context.

    Kanyip expressed worries that despite abundant landmark decisions of the NIC, labour lawyers still based their arguments on decisions of the appellate and Supreme Courts.

    “The point I simply wish to make is that the utilisation of the Nigerian Labour Law Reports by lawyers has been generally less than satisfactory, especially for a court like the NIC, whose decisions are subject to minimal right of appeal.

    ”I have heard arguments of counsel regarding, for instance, Section 7 of the NIC Act, 2006, on the ambit of the court’s jurisdiction over issues relating to labour. The disturbing thing is that even when the National Industrial Court has made pronouncement on what the word labour means for the purpose of jurisdiction, counsel chose not to even refer to such a decision, they preferred to rely on the Supreme Court and the Court of Appeal cases, even when these cases are of no relevance,” said Kanyip, who appealed to lawyers to get acquainted with the NLLR.

    He said the idea behind the NLLR was to fill the gap created by the lack of the NIC’s law report it stopped producing, adding that lawyers can only get to learn about the identity crisis in labour law by keeping abreast with recent developments.

    “There is a quiet revolution going on at the NIC since 1999 after the promulgation of the court as one of the courts of record … Irrespective of employers’ right to hire and fire, it is no longer globally fashionable to terminate an employment without a justifiable reason,” he said.

    Similarly, Agomo said law students were also liable, noting that despite the existence of the NLLR on the book shelve since 2004, most of her students do not know about it.

    She advocated the need for the chamber, Rochebas Solicitors, to set up strong resilient and aggressive marketing team that can cover the country, urging the publisher to encourage the students by subsidising the shelf price for them.

    Etteh said he had been excited by labour and employment related matters, noting that his first labour dispute case was a year after he was called to bar.

    “I was assigned a Labour Law Case in 1991. It excited me because I saw the opportunity of fighting for some employees of the Federal Ministry of Industries, who were wrongly retired from service. Again in 1993, I had to do a labour case with the firm of our late Sage, Chief Kehinde Sofola, (SAN). That case was reported as the Association of Senior Civil Servants of Nigeria, Nigerian Civil Service Union (2004) 1 NLLR (Part 3) 429.

    “That was a personal brief, which I brought to the firm because I had a personal decision not to hide any case file when my principal walked into my office. That case had two indelible impacts in my life. First, it made me fully understand the challenges facing industrial law practice in Nigeria and secondly, it eventually became the platform for building a great solicitor/client relationship with a trade union that has spanned over two decades.

    “By the turn of the second millennium, I began to feel the fire of conservative activism agitating my spirit I kept hearing, you must do something about the state of Employment Law Practice in Nigeria. The fire became unquenchable and by 2002, I had to ignite a quiet campaign for labour justice reforms in Nigeria. Ordinarily, I could have hit the press or media.

    “But I choose to do the activism the conservative way by sending a 17-page Memorandum for Reforms to the then Chief Justice of Nigeria, Mohammed Uwais, CJN (as he then was), GCON. The then CJN acted pronto on the memo and went to work on the recommendations.

    “I can tell you that 2002 Memo to the CJN triggered the current reforms in the labour justice sector. It was in furtherance of that quiet campaign that I jumped into the deep sea of law reporting. I have put my hand into the plough and there is no looking back.

    “I needed to bring labour law decisions to limelight. I needed to turn the focus of stakeholders to this forlorn area of practice. I needed to agitate the minds of the Bench and the Bar to ask what this gentlemen saw in an area of law erroneously viewed as narrow.

    “I needed to provoke legal and labour practitioners to join in the campaign for reforms. My wisdom was variously questioned by my friends. Even my state Attorney-General then, honestly advised me to expand the scope of the Law Report to secure its future.

    “But I was driven by vision and passion. I saw a day in Nigeria when the rights of employees and employers would be redefined. I saw a day when the right to hire and fire will not be without question. I saw a day when there would be an NIC in every state of Nigeria.

    “I saw a day when the doors of sovereignty will be opened for international best practice to influence the way Nigerian workers are being inhumanly treated in factories and construction companies.

    For that day to come, I needed to take a risk.

    “For that day to come, I needed to contribute my quota. Nigerian Labour Law Reports, a primary source of law in labour jurisprudence, was one of such risks. Don’t ask me how many tons of naira in millions we have sunk in to pursue this dream. Don’t ask me the sleepless nights with my gang of risk takers that we have put in. But in all, at 50, I feel a sense of fulfillment that the risk was worth taking.