The Nation Newspaper

Category: Law

  • ‘Executive must accord fiscal autonomy to Judiciary’

    ‘Executive must accord fiscal autonomy to Judiciary’

    The courts were shut for about three weeks – July 11-31 – because of what workers under the aegis of the Judiciary Staff Union of Nigeria (JUSUN) called the persistent refusal of the Executive, particularly in the states, to accord financial autonomy to the Judiciary. JUSUN President Comrade Marwan Adamu speaks with Eric Ikhilae on the strike and other issues.

    What is your take on the situation in Rivers State judiciary?

    We have been pushed to the wall. That was why we took the decision to go on strike in Rivers. We had embarked on strike in Rivers even before the nationwide strike.  And even with the suspension of the nationwide strike, we are not going to suspend the strike in Rivers until the problems created by the two elephants are resolved. The two elephants are the state (JSC) Judiciary Service Commission and the National Judicial Council (NJC).

    We at JUSUN, have no power over the appointment of Chief Judges and whoever is appointed as the Chief Judge, we will accept him,  we will work with him, we have no problem with that.

    So, why are your members on strike in the state?

    In Rivers, NJC appointed an administrative judge, they said we must work with him. We have no problem with that, we can work with him. But after the NJC’s appointment, another circular came from the state’s JSC and we, from the Chief Registrar down to the least person in the Judiciary are employed by the JSC of the state. So, if the JSC issued another circular, saying if anybody worked with this administrative judge, the person was on his or her own, and that such person would face disciplinary actions, there is a problem. Are we going to work with two masters at the same time?

    That was why we withdrew our services, coupled with the problems of security. You are a living witness to this. A particular court was bombed three times. On an occasion, the police confirmed a parcel found in the premises of the court as explosives. They did not remove it until it exploded and our members who reported it were arrested and detained for 21 days.  When NBA and JUSUN took the matter up, our detained members were taken to court and terrorism charges were instituted against them.  Up till now, the matter is still before the court.

    How do you think the logjam in Rivers’ Judiciary can be cleared?

     The way out is that both parties should do the right thing, which means they should do what the constitution says. There is no way you are going to appoint a Chief Judge in a state without the inputs of the NJC, state governor and the state House of Assembly. Let them do the right thing.

    Why did JUSUN embark on the nationwide strike?

    Justice Adeniyi Ademola of the Federal High Court, Abuja delivered judgment on January 13 this year in our favour in the case in which we sought the interpretation of sections 81(3), 121 (3) and 162(9) of the 1999 Constitution.

    The court ordered that the Accountants-General of the state and federation, Auditors-General of the states and the federation, the Senate President and the Speaker of the House of Representatives be served with that court order for them to ensure compliance with those provisions of the constitution. We did. They were all served.

    Sometimes in February this year, the union had a NEC (National Executive Council) meeting and issued a 21-day ultimatum to embark on strike. Before the expiration of the ultimatum, we were invited to a meeting by the Minister of Labour and Productivity, who I must acknowledge and appreciate for his efforts in this matter. He has put in his  best to ensure that this matter is resolved.

    At that meeting, we were persuaded not to embark on the strike on the understanding that we should give them time to study the court order and comply with it. We agreed. Towards the end of March, we issued a fresh 21-day ultimatum. The same thing happened. We were invited to a meeting. The NJC (National Judicial Council), the FJSC (Federal Judicial Service Commission), Wages and Salaries Commission and the office of the Accountant-General of the Federation, were invited.

    When we saw they were still foot-dragging on their promise to abide by the judgment, we decided to go on strike.

    Do you mean most states are yet to obey the judgment?

    All the states are in default. None of them has complied with the judgment. Why we delayed before going on strike was to show that we are mature and not that we have interest in going on strike. We were interested in the amicable resolution of the issue.

    Before the federal judicial workers joined the strike, the Minister of Labour and Productivity called a meeting. The NJC was in attendance, with some directors and the Accountants-General of the Federation and we were asked to suspend the strike. We said JUSUN would suspend the strike if we get a cogent, concrete, presentable commitment from the government

    We are not saying you should pay the money now. But let us assume that if both the representatives of the Federal and State governments say that we agree there is a court judgment, give us one week, give us two weeks, give us one month, to comply with it, that is acceptable.

    The commitment should be in written form. It can no longer be in verbal form because we have had a number of verbal assurances which have failed.

    We were even given written memorandum which failed and more importantly the Accountant-General of the Federation caused about 25 per cent of the problem. Because the Constitution, in Section 162(9) provides that he (the Accountant-General of the Federation) should deduct the funds standing to the credit of the Judiciary in the budget from the source and pay same to the NJC for onward disbursement.

    Was that what the court judgment of January 13 said?

    Yes, the judgment affirmed it. That was what we went to court to seek interpretation for and the court ruled in our favour, upholding the provisions of the constitution. Even, if the Accountant General of the Federation feels that there is a clash in Section 121 or whatever, it is not for him to say it because he is not a court. If he is contesting the judgment, the right thing for him to do is to go back to court to challenge the judgment.

    In as much as he did not challenge the judgment, he has no moral right not to comply with the court order. If he deducts the money from the state governments’ funds from the source and any governor complains, he only has to say that he is relying on the court order.  It is now for the state governors to accept it or go to court to challenge the judgment. If anybody is not happy with the judgment, the person should go to the Court of Appeal and if the court says stay action, so be it.

    Has the Attorney-General of the Federation been involved in this matter?

    He is affected directly and his representatives have been coming to all our meetings with the Minister of Labour, and the position of the Ministry of Justice is one. It is that since there is a court order, it must be complied with if there is no appeal.

    That is the position of the Ministry of Justice. Maybe what the Attorney-General of the Federation should have done is to go further to invite his colleagues in various states, the Attorneys-General of the states, with a view to resolving this problem. But right now there are some few states, two or three, who are making contacts with the union on how to resolve the problem.

    Have representatives of the states been involved in your earlier meetings to resolve the problem?

     They have not been participating. None of them has been participating. The Minister of Labour kept mounting pressure on the union to call of the strike, to show how concerned we are,we said the Commissioners of Finance have a forum, and  they have a chairman; the Accountants-General of the states have a forum and they have a chairman, invite these two chairmen, let them come to the meeting. Let us meet with them and make a commitment.

    But we learnt that the Accountant-General of the Federation, because of the pressure on him, wrote a letter to the state governors, asking them  to comply with the court order. My problem with this letter, though the content of the letter sounds good and looks beautiful, but the question remains, which, between the court order and the letter of the Accountant-General of the Federation has the greater binding effect?

    If a judge of competent jurisdiction makes an order and nobody is willing to respect it, should I as a unionist now rely on the letter of the Accountant-General of the Federation?

    What is the Accountant-General of the Federation expected to do as ordered by the court?

    What the Accountant-General of the Federation should do is to deduct funds meant for the judiciary directly from the state government’s allocation before releasing it to them. That is the position. Whether the court is correct or wrong, it is never my business, it is not the business of the Accountant-General of the Federation.  It is the business of the person whose money is deducted to go to court to challenge it. It is a simple issue.

    Were you bothered about the impact of the strike on litigants and awaiting trial inmates who are in custody and in need of court services to secure their freedom?

     We have been thinking of them and that is why for the last 10 to 15 years, whenever the situation of this nature came up, we were asked to consider them and we have been considering them. And nobody after the suspension of our strike is looking at our situation to ensure our demands are met.

    There is no way a judge can work effectively and deliver a sound judgment without a conducive environment. My problem is that people have failed to understand that it is not only the superior courts are courts. Go and see our magistrate’s courts, see our Area Courts, our Sharia Courts, or our Customary Courts, they are using rented shops and parlours.

    In what states do we have courts using rented apartments?

    That is the situation in virtually all the 36 states. I challenge anybody to contradict me; that is what is happening in virtually all the 36 states.  People do not even appreciate magistrates in the magistrate’s courts or sharia courts, and these are the people who can attend to 17 to 20 cases in a day. These are the people who take the cases of the ordinary men in the society.

    Do we then say that by this strike, the judicial workers are fighting the cause of judges and magistrates?

    We are not  fighting for anybody. We are fighting for the system. We are in this struggle because we are employed as staff of the judiciary.

     So, how are your members going to benefit from the fruit of the struggle if the Executive eventually comply with the judgment?

     Our members will benefit from the fruit of the struggle immensely. We desire a conducive environment to work where we can give the best. The service I am delivering will be improved. I will do my work with sincerity, honesty and with the best effect. Again, if we achieve the financial autonomy or financial independence in the judiciary, my welfare will improve.

    When the environment where you are working has all that qualify it to be called a good office, especially a court, you will discharge your duties effectively and with joy.

    Today, a litigant comes to court, the court is being rented in the house of the person suing him, and you are expecting him to get justice.

    We are not fighting for our pockets; we are fighting for the system, for the structure, for the judiciary to be a strong institution that it is supposed to be. The issue has always been that the judiciary is the last hope of the common man.

    How is the judgment obtained by a former NBA President, Olisa Agbakoba (SAN), different from the one got by your union?

    We will come to the issues in the judgment obtained by Agbakoba anytime from October, November or December. That is when we will start seeing the effect of that judgment because that is the period budgeting processes will begin.  The judgment deals with the procedure of budgeting for the judiciary and we will see whether the Federal Government and the state governments will be adamant.

    From this year, JUSUN will never accept, we will not allow anybody to compromise the integrity and independence of the institution we are serving. Everybody is crying for democracy, and there is no way democracy will survive where impunity reigns. There is no way democracy will thrive without observing the rule of law.

    All we are saying is that our patience has been taken for granted for too long. We have been mindful of the institution we are serving that is why we don’t make comments on every issue, we don’t make pronouncement on every issue we don’t even go on strike because of all issues we have been controlling ourselves.

  • Impeachment: Why chief judges must be cautious

    Impeachment: Why chief judges must be cautious

    Adamawa State Governor Murtala Nyako was impeached a few weeks ago. His Nasarawa State counterpart, Umaru Al-Makura, is on the firing line. Media aide to the Chief Justice of Nigeria (CJN) Ahuraka Yusuf Isah, in this article, examines the power of Chief Judges in the process.

    A country can still do well with bad laws but it cannot do well with bad judges. This is because if the judges are upright, they can mitigate the injustice, inhumanness created by people who made bad laws. But when judges are corrupt, even with good laws, development, justice cannot thrive’’ (Justice Akinola Aguda 1923-2004)

    The impeachment of the former governor of Adamawa State, Murtala Nyako, may become a lead to the floodgate of impeachments of state governors and, perhaps, the President and Commander-in-Chief of Armed Forces of Nigeria.

    At the beginning, we heard through the rumour mills that some state governors, including those of Adamawa, Nassarawa, Rivers, and now Edo, Oyo and others yet to be named, would be impeached.

    The rumour of President Goodluck Jonathan’s impeachment also struck the airwaves, but fizzled out; perhaps because of the manner the move was crushed before it was hatched. But the case of Nyako is no longer rumour, he has been impeached, while Governor Al-Makura of Nassarawa State is currently facing the impeachment heat.

    Elections by their nature, serve as the means by which democracy is practised or fired into action. They confer legitimacy on some people to act as leaders or captain of their ship, sailing it through the tide of time.

    In contrast, impeachment or the removal of an official elected by the people is an exercise carried out by just a few, though representing the people. It is either a mark of sunset to crisis or convocation to crisis.

    Though the banished Duke in Shakespeare’s ‘’As you like it’’ opted to say that “there is the good side in every bad situation”, impeachment, in most cases amounts to sowing a whirl-wind or dragon teeth that hatches into bad omen in the society.

    That informed why General Yakubu Gowon and Alhaji Shehu Shagari, at the prompting  of General Ibrahim Babangida, moved in quickly to counsel former Speaker Ghali Na’aba and the former Senate President Pius Ayim not to pronounce the impeachment of former President  Olusegun Obasanjo in 2002.

    The concern of this writer is the fate of the Judiciary in this comic dance of absurd in our nation’s democratic practice. Professor Yemi Akinseye-George (SAN) had sounded a note of warning to judges in his book, ‘’Legal system, corruption and governance in Nigeria,’’ saying General Babangida held the judiciary responsible for the annulment of the June 12, 1993 presidential election.

    In his annulment proclamation, General Babangida argued that ‘’the Judiciary has been the bastion of the hopes and liberties of our citizens. Therefore, when it became clear that the courts were intimidated and subjected to the manipulation of the political process, resulting in contradictory decisions and orders by courts of co-ordinate jurisdiction, then the entire political system was in clear danger. Accordingly, it is in the supreme interest of the laws and order, political stability and peace that the presidential election be annulled’’.

    In the same vein, General Sanni Abacha blamed the Judiciary for sacking Chief Ernest Shonekan’s Interim National Government, following Justice Dolapo Akinsanya of Lagos High Court judgment, declaring the government illegal and an aberration.

    The roles of the Chief Justice of Nigeria and the Chief Judge of a state in the impeachment of either the President of the Federal Republic of Nigeria or a state governor are well provided for in the 1999 Constitution (as amended). The constitution asked occupants of these positions to constitute panels to investigate allegations of ‘‘gross misconduct’’ properly levelled against the President or the governor by either the National Assembly or the state Assembly as the case may be.

    Section 188(5) of the 1999 Constitution as (amended) for instance vested the powers on the state Chief Judge to appoint seven-man panel to investigate allegations of gross misconduct of the Executive Governor of a State. While carrying out this function, the chief judges are also to be guided by other sub-sections of Section 188.

    The mere failure by some Chief Judges of states in the past, especially, since the advent of the current democratic dispensation in 1999 has left many a dent on the Judiciary as an institution.

    The National Judicial Council (NJC) which is charged by the same 1999 Constitution to appoint and discipline judges have always taken it up, with utmost seriousness, with any Chief Judge that side-step this provisions of the constitution, which are crystal clear or unambiguous.

    NJC had, at its emergency meeting held at Abuja on December 20, 2006 and pursuant to the powers vested on it by Paragraph 21(d) of the Third Schedule to the 1999 Constitution, suspended, with immediate effect,  the Chief Judges of Anambra, Plateau and Ekiti states for the partisan roles played in the impeachment of their respective states.

    Those suspended were Justices Chika Okoli (Anambra), Ya’u Dakwang (Plateau), and both the Chief Judge of Ekiti state, Justice Kayode Bamisile and the former acting Chief Judge of the state, Justice Jide Aladejana.

    Chuka Okoli, former chief judge of Anambra State, will not forget in a hurry the powers of NJC. He was placed on suspension by the council for what is considered to be his inglorious act in the controversial impeachment of Peter Obi as governor of the state.

    Justice Bamisile was also sanctioned for similar misconduct. He was accused of allegedly compromising  himself by appointing on the investigation panel persons believed to be cronies of suspended Governor Ayodele Fayose, to probe the alleged misconduct of the governor. But Jide Aladejana, who stepped into Bamisile’s shoes without due process, goes with his boss in line with the council’s recommendation. Lazarus Dakyen, the chief judge of Plateau State, also lost his job because of his reluctance to be guided by law in his participation in the processes leading to the removal of Governor Joshua Dariye. Before them were Okechukwu Opene and D. A. Adeniji, who were indicted for taking bribe on the matter of the senatorial election in Anambra State. While Opene allegedly took N12 million, Adeniji was said to have collected N15 million. Though Akin Olujimi, Senior Advocate of Nigeria, SAN, and then federal attorney-general, advised President Olusegun Obasanjo against their dismissal, the President upheld the decision of the NJC. Olujimi based his advice on the procedure adopted by the council in determining the case.

    They are not the only judicial officers who fell victims to the political crisis in Anambra State. Stanley Nnaji, then a judge of Enugu State High Court, was suspended in March 2004 for wrongly assuming jurisdiction on a matter outside his state.

    The judge had ordered Tafa Balogun, then Inspector-General of Police, to remove Chris Ngige, who was then the governor of Anambra State. Nnoruka Udechukwu, the state’s Attorney-General and Commissioner for Justice, petitioned the NJC, complaining that the ruling was in bad faith and against the code of conduct of judicial officers.

    Nnaji was probably encouraged by the reluctance of the Federal Government to implement a similar decision of the council on Wilson Egbo-Egbo, another high court judge, for granting an injunction directing Ngige to stop parading himself as the governor.

    But shortly after Nnaji committed his own misconduct, Obasanjo approved Egbo-Egbo’s retirement. The latter is one of the nine judges so far retired for endorsing unnecessary ex-parte applications. They are not the only casualties of political cases.

    Five others were implicated in the 2003 Election Petition Tribunal in Akwa Ibom State. They adjudicated on the petition against the re-election of Governor Victor Attah by Ime Umanah, candidate of the defunct All Nigeria Peoples Party (ANPP), at the election.

    By the time the NJC concluded its job, Matilda Adamu, a judge of the High Court of Plateau State, Christopher P.N. Senlong of the Federal High Court, Lagos, and James Isede, a Chief Magistrate in the Edo State Judiciary, had earned themselves dismissal from the judiciary. D. T. Ahura of the High Court of Plateau State and A. M. Elelegwu of the Customary Court of Appeal, Delta State, were recommended for suspension.

    The Federal Government, after approving the verdict of the council on the higher officers in February 2004, sent their case files to the Independent Corrupt Practices and other Related Offences Commission (ICPC) for trial.

  • Should soldiers be deployed for elections? Lawyers: NO

    Should soldiers be deployed for elections? Lawyers: NO

    Former President Olusegun Obasanjo started it all in 2003. President Goodluck Jonathan has caught the bug of deploying soldiers for elections, despite its unconstitutionality. He did it in Ekiti State on June 21. He plans to do it again in Osun on Saturday. Is he right? No, say lawyers. Eric Ikhilae reports.

    Election is a civic duty, which the electorate are expected to perform freely. They are expected to exercise their franchise in a peaceful atmosphere, devoid of intimidation and show of force.

    Election is not a war, warranting troops’ deployment. At most, the police are deployed to ensure orderliness. This is the practice in other democracies.

    But here, the deployment of troops for election by the Federal Government is gradually becoming the norm, the unconstitutionality of the practice.

    The practice, which was introduced by former President Olusegun Obasanjo in 2003, who was once quoted as saying that election is “a do-or-die” affair, is gradually becoming a state policy under President Goodluck Jonathan.

    This practice reached a worrisome height during the June 21 Ekiti State governorship election  when troops, military hardware, arms and ammunition were deployed. The soldiers paraded the streets in a manner intended to intimidate voters and paint a picture of insecurity and looming danger.

    About 36,790 armed soldiers, police, State Security Service and civil defence personnel were reportedly deployed for the Ekiti election. Many relived how soldiers allegedly interfered in the electoral process.

    Rivers State Governor Rotimi Amaechi’s   right to freedom of movement enshrined in Section 41 of the Constitution was breached by the armed soldiers when he was prevented from entering Ekiti two days before the election.

    The governor and many other leaders of the All Progressives Congress  (APC), who were billed to attend a political rally at Ado Ekiti last June 19, were forcefully turned back by the soldiers who claimed they were acting on “orders from above.”

    There were also reports that armed soldiers searched every hotel in Ado Ekiti, the state capital at night, without warrant and ejected mostly members of the APC, who they claimed could not offer “satisfactory explanation” as to why they were in the state.

    The same soldiers provided cover for some non-indigenes, who are chieftains of the Peoples Democratic Party (PDP) including two serving ministers and an influential chieftain of the party from Anambra State, who were allowed to “monitor” the election.

    There were also tales of unwarranted killings and displacement during the election. But while many thought the Jonathan government would have learnt from unsavoury experience brought about by the unwarranted deployment of soldiers in Ekiti, it is bent on doing the same thing in Osun  State, where governorship election holds on Saturday.

    To observers Jonathan, who the soldiers allegedly was in Osogbo, the state capital, last Saturday to campaign for Iyiola Omisore, the candidate of the party, Peoples Democratic Party (PDP) hinted that soldiers may be deployed for the election. Militarising election process does not only serve as a disincentive to voters, it is a form of rigging because innocent voters are scared away and their right to vote denied.

    They argued that such practice gives the international society a bad impression about the country, creating the impression of insecurity and painting the people as being incapable of managing their affairs.

    The unconstitutionality of the President’s capricious deployment of soldiers for election duties, critics argued, is supported by the provisions of sections 217 (1) and (2) (a-d) and 218 (4)(a-b).

    Section 217(1) states that “There shall be and armed forces for the Federation which shall consist of an army, a navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.

    It states in Sub-section 2  that “the federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of -(a) defending Nigeria from external aggression; (b) maintaining its territorial integrity and securing its borders from violation on land, sea, or air; (c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and (d) performance such other functions as may be prescribed by an Act of the National Assembly.

    But while Section 218 (1) states that “the powers of the President as the Commissioner-in-Chief of the Armed Forces of the federation shall include power to determine the operational use of the armed forces of the Federation,” the Constitution, in Sub-section 4 (a) and (b) of Section 218 states that “the National Assembly shall have power to make laws for the regulation of – (a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.”

    Observers argue that, in view of the unconstitutionality of the President’s casual deployment of men of the armed forces in the absence of the situation envisaged in Section 217(2)(a-c) of the Constitution, there is urgent need for well-meaning Nigerians to seek ways of  halting  this unconstitutional use of the armed forces by the President.

    This purpose may equally be served by a Bill now before the National Assembly that seek to review the deployment of armed forces for election duties.

    Titled: “A Bill for an Act to further amend the Electoral Act, No. 6, 2010,” sponsored by Hon. Daniel Reyenieju (PDP, Delta), it seeks among others to ensure a level playing field for all participants in the electoral process and for transparent process of conducting elections in the country, and for other matters connected therewith.

    A major contentious part of the Bill is contained in its proposed Section 8, which seeks to further amend the Principal Act in Section 29(1) by inserting a new subsection (b).

    The new subsection “b” seeks to ensure that INEC is “responsible for requesting and deploying security personnel necessary for elections or registration of voters; assigning them in the manner determined by the Commission in collaboration with relevant security agencies, with the condition that the deployment of the Nigerian Armed Forces shall only be for the purpose of securing the distribution and delivery of election materials”.

    If passed into law, this amendment may likely stop the President’s casual deployment of members of the armed forces for election duties. It is however not sure if the proposal will not exacerbate the already bad situation as there is no guarantee that INEC, a federal establishment will not succumb under the pressure from the party at the centre.

    Lawyers, including rights activist, Femi Falana (SAN), Joseph Nwobike (SAN), Emeka Ngige (SAN), Wahab Shittu, Ike Ofuokwu and former Chairman of the Nigerian Bar Association (NBA), Ikeja, Monday Ubani are also of the view that the needless deployment of men of the armed forces for election duties amounts to a negation of the provisions of the Constitution.

    Falana argued that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified in view of the provision in Section 215(3) of the Constitution, which vested the Police with the exclusive power to maintain and secure public safety and public order in the country.

    He relied on the Court of Appeal decisions in the cases of Yussuf v Obasanjo (2005) 18 N.W.L.R. (Pt 956) 96 and Buhari v Obasanjo (2005) 1 WRN 1 at 200.

    Then President of the Court of Appeal, Justice Umaru Abdullahi observed that “in spite of the non-tolerant nature and behavior of our political class in this country, we should by all means try to keep armed personnel of whatever status or nature from being part and parcel of our election process. The civilian authorities should be left to conduct and carry out fully the electoral processes at all levels”.

    The Supreme Court, in upholding the judgment in the Buhari v Obasanjo case, held that the state is obligated to ensure that “citizens who are sovereign can exercise their franchise freely, unmolested and undisturbed”.

    Falana argued that “under the current constitutional dispensation the President and Commander-in-Chief of the armed forces lacks the power to involve soldiers in maintaining law and order during elections.”

    He noted that even in the Northeast states, a state of emergency had to be declared by the President to justify the deployment of members of the armed forces as part of the extraordinary measures he was required to take to restore law and order pursuant to section 305 of the Constitution.

    “Even then the President had to seek and obtain the approval of the National Assembly for the said deployment for a specific period of time,” he said.

    Nwobike, while addressing the deployment of armed and hooded security personnel to Osun, preparatory to the August 9 election, argued that such deployment will create tension because the state is not known to be prone to violence.

    “There are no security challenges in Osun State as to warrant the deployment of massive security operatives into the state few days before the scheduled election.

    “Osun is relatively a small and peaceful state. Therefore, the only inference that can be drawn from the deployment of massive security personnel into the state is that those who are responsible for that deployment intend to heat up the polity and aggravate the political tension in the state.

    “I, however, call on the electorate to go about their business and to come out en masse to vote for the candidate and political party of their choice.

    “They should not allow themselves to be intimidated by the presence of security personnel,” he said.

    Ngige, said the security personnel should rather have been deployed to the Sambisa Forest, known as the notorious den of insurgents in the Northeast.

    “The militarisation of our democracy will do nobody, including the presidency, any good. People should be allowed to express their political wishes without fear of intimidation.

    “The deployment of high number of military personnel in an election is suggestive that we’re in a civilian rule, not democratic rule.

    “The soldiers and state security personnel they’re deploying in Osun are better needed in Sambisa forest and Borno and Yobe states, not for a peaceful state like Osun,” Ngige said.

    Shittu was of the view that the massive deployment of armed security personnel could send a wrong signal that Nigeria is incapable of conducting a peaceful election.

    He warned against militarising Osun in the name of ensuring a peaceful election, adding that voters could be disenfranchised by such massive show of force.

    “While there is a necessity to guarantee peaceful, fair and credible election, we should be careful not to militarise the polity. That could constitute a danger to the democratic process.

    “There are various ways of disenfranchising eligible voters. We should not give the impression to the international community and the rest of the world that we’re incapable of conducting a free, fair and credible election except the entire place is militarised,” Shittu said.

    Ofuokwu faulted the deployment of heavily armed security men for the Osun election

    “They have no bravery to display but instead what they have is cowardice clouded with professional timidity. Any bravery should be channelled to the Sambisa forest to rescue our girls. It shocks the conscience to hear that they are even hooded hence we must be sure that they are not armed robbers or even terrorists. Officials of DSS have no single justification being hooded.

    “The people of the state should not be intimated with their presence but go about their lawful duty & on election day come out en masse to vote candidates of their choice, he said.

    Ubani particularly faulted the conduct of the SSS men deployed to Osun.

    “This is clearly a strange development. SSS men wearing masks and shooting into the air indiscriminately is scaring and irresponsible. Why the entire thing seems scaring is the idea of wearing masks.

    “You may want to know why and what they are trying to hide their faces for? It is obvious that their intention and motive is less altruistic and patriotic hence operating in masks.

    “My advice is that the political elite in collaboration with the security establishment should not truncate this hard won democracy even if what we have is not a full fledged democracy. “The people of Osun should be given a free hand to choose their governor free from pressure, intimidation and threats from any quarter. What constitutes free and fair election includes the events prior to the election date, the election proper and during the announcement of the election results.

    “If there are issues and deficiencies in any of these segments as mentioned then the election cannot be said to be free and fair in accordance with the Electoral Act.

    “Our political class should know that the entire world are keenly observing what is going on in our country. Our actions and deeds will either enhance our value in the eyes of the world or attract opprobrium from the same world. A word is enough for the wise,” Ubani said.

     

  • Dean of law is Chief of Staff

    The Dean of the Faculty of Law  Nasarawa State University, Keffi,  Prof.  Maxwell M. Gidado  has been appointed Chief of Staff to  the Acting Governor of Adamawa State, Ahmadu Umaru Fintiri.

    Prof. Gidado was born in Sugu, Adamawa State in 1960. A 1983 graduate of the University of Maiduguri , he  was  called to the Nigerian Bar in 1984. He obtained he Master of Law (LLM) degree and Ph. D from the University of War wick in  England.

    He did his National  Youth Service Corps (NYSC)  in 1984-85 at the law firm of  A.O. Arulogun & CO in Port Harcourt during whic time he was engaged in serious law practice and became a Professor of Law in 2011 at Department of Private and Business Law,  Nasarawa State University, Keffi before he was an Associate Professor.

    He was a Deputy Dean of Law and was made  Dean Faculty of Law in  2009, a position he occupied till his appointment as the Chief of Staff.

    Gidado was  Senior Special Assistant Legal and Constitutional Matters,  to the former Vice President Atiku Abubakar from 2003 to 2007 and  Senior Special Assistant Legal and Constitutional Matters to former President Olusegun Obasanjo  from 1999 to 2003.

    He was Secretary, Presidential Committee on Review of the 1999 Constitution from 1999 to 2001,  a former Assistant Director (Academic) at the Nigerian Law School Bwari from January 1999 to June 1999.

    Gidado was also Special Assistant to the former Chairman Constitutional Debate Co-ordinating Committee Justice Niki Tobi JSC  (rtd) which midwifed the 1999 Constitution of the Federal Republic of Nigeria from  November 11  to December 31 1998.

    A former Attorney-General and Commissioner for Justice, Adamawa State from 1995 to 1997 and former, Adamawa State Christian Pilgrims Leader to the 1995 Christian Religious Pilgrimage to Jerusalem.

    Gidado,  a Fellow, Certified Institute of Management (FCIM)  since  July 2011, was made a Grand Patron, Certified Institute of Management in July 2011.

    He was Decorated with National honour of the Officer of the Order of Republic of Equatorial Guinea (ORG) in 2004, Was the Best Law Student of University of Maiduguri at 1984 Convocation Ceremony and numerous other awards.

    He is a Director of Research, Institute for Oil & Gas Law, Abuja; member, Committee on Nigeria’s Extended Continental Shelf clai, 2004-date; member, Legal/Expert team of the International Boundary dispute case between Cameroun & Nigeria at the International Court of Justice, Hague – 1999-2002,Member, Ministerial Team on JDZ, Nigeria/Sao Tome & Principe (2001-2007),  Member, Oil & Gas Reform Sector Committee (OGIC) of the National Council on Privatisation (N.C.P) of Nigeria.

  • Seizure of tax evaders’ properties legal

    Seizure of tax evaders’ properties legal

    Following the decision of the Court of Appeal in the case of Independent Television/Radio v. Edo State Board of Internal Revenue,  that  tax authorities have the legal powers to seal off business premises and confiscate the properties of tax evaders after giving them  sufficient notice of their tax obligations and opportunity to pay, a Lagos lawyer and legal adviser to West African Union of Tax Institute, Chukwuemeka Eze, examines the decision. He concludes that the fear of the taxman remains the beginning of wisdom. 

    Are you one of those who ignore tax payment notices from the Federal Inland Revenue Service or State Boards of Internal Revenue? If you fall into this category, you encounter very serious problem henceforth. This is because the Court of Appeal, Benin Division on May 28, 2014 in the case of Independent Television/Radio v. Edo State Board of Internal Revenue has declared that section 104 of the Personal Income Tax Act  (PITA) (as amended), which authorises tax authorities to seize properties of income tax defaulters, is constitutional. The section also allows tax authorities to apply to a judge of a High Court ex parte (that is, without putting the tax defaulter on notice) for an order to levy warrant of distrain against an income tax defaulter. Upon the judge granting the order, the tax authority proceeds to confiscate or seize the property of the tax defaulter. It will hold or take charge of the property for 14 days before disposing same by another order of court.

    Provisions in other tax laws similar to that of section 104 of PITA (as amended) which allows for distrain of properties are as follows:

    a)   Section 86(1) of the Companies Income Tax Act:

    Without prejudice to any other power conferred on the board for the enforcement of payment of tax due from a company, an assessment has become final and conclusive and a demand note has, in accordance with the provisions of this Part of this Act, been served upon the company or upon the person in whose name the company is chargeable, then, if payment of the tax is not made within the time limited by the demand note, theb Board may in the prescribed form, for the purpose of enforcing payment of tax due:

    (a) distrain the taxpayer by his goods or other chattels, bond or other securities;

    (b)  distrain upon any land, premises, or place in respect of which the taxpayer is the owner and, subject to the following provisions of this section, recover the amount of tax due by sale of anything so distrained.

    b)   Section 3(1)(b) of the Petroleum Profits Tax Act:

    Whenever the board shall consider it necessary with respect to any tax due, the Board may acquire, hold and dispose of any property taken as security for or in satisfaction of any tax or any judgment debt due in respect of any tax and shall account for any such property and proceeds of sale thereof in a manner to be prescribed as aforesaid.

    c)   Section 33(1) of the Federal Inland Revenue Service (Establishment) of 2007:

    Without prejudice to any other power conferred on the Board for the enforcement of payment of tax due from a company, where an assessment has become final and conclusive and a demand notice has, in accordance with the provisions of the relevant tax laws in the First Schedule to this Act, been served upon the taxable person or upon the person in whose name the taxable person is chargeable, then, if payment of the tax is not made within the time limited by the demand notice, the Board may in the prescribed form, for the purpose of enforcing payment of the tax due:-

    (a)    distrain the taxpayer by his goods or other chattels, bonds or other securities;

    (b)    distrain upon any land, premises, or place in respect of which the taxpayer is the owner and, subject to the following provisions of this section, recover the amount of tax due by sale of anything so distrained.

    d)   Section 43(1)  of the Capital Gains Tax Act:

    Capital gains tax shall be under the care and management of the Board and the provisions of the Income Tax Acts in the Schedule of this Act shall apply in relation to capital gains tax as they apply in relation to income tax chargeable under those Acts subject to any necessary modifications.

    e)   Section 16 of the Casino Taxation Act:

    (2) If the licensee neglects or refuses to pay the sum charged upon demand made, a principal inspector of taxes shall for non-payment thereof distrain upon the premises in respect of which the tax is charged, without any further authority for the purpose than a warrant under this section issued for the purpose by the Board.

    (3) The sum included in the demand shall be deemed to be a debt by the licensee as judgment debtor owing to the board as judgment creditor and payable under a judgment of a High Court in the Federation, and for the purpose of levying distraint under the foregoing subsection, the chairman of the board or, in his absence, his deputy, shall have the powers of registrar and sheriff of such a court; but any seizure and sale by way of distress may be enforced under the following provisions of this section by a principal inspector of taxes acting under a warrant signed by the chairman of the board or his deputy.

    (4) For the purpose of levying any such distraint, any inspector duly authorised by a warrant for that purpose, may break open in the daytime any premises, calling to his assistance any constable, and any such constable shall, when so required, aid and assist the inspector in the execution of the warrant and in levying the distress.

  • Democratisation of NBA

    Democratisation of NBA

    Being the speech delivered by Femi Falana (SAN) at the Bar dinner of the Ibadan branch of the NBA in Ibadan, Oyo State capital.

    Introduction

     

    THE Nigerian Bar Association (NBA) is one of the oldest professional bodies in Nigeria. As the premier branch of the NBA, the Ibadan bar charted a course for the modern NBA. In fact, it was this branch that hosted the 1987 annual conference of the NBA which produced the Alao Aka-Bashorun leadership. It is generally agreed on all hands that it was during that glorious era that the NBA was reorganised and rejuvenated  to champion the struggle for the rule of law and the restoration of democratic governance in the country. The NBA fought executive lawlessness that was the hallmark of military dictatorship and mounted a sustained campaign against preventive detention decree and other obnoxious legislations.

    In spite of official pressures, the NBA neither paid any courtesy call on the military president and state governors  nor received any donation from the junta. Two prominent members of the Ibadan branch-Chief Priscilla Kuye and Mr.Oluwarotimi Akeredolu SAN served in that progressive Executive from 1987 to 1989. It is on record that both of them kept the flag flying and  served  creditably well when they subsequently became Presidents of the  NBA. As the NBA is currently comatose, the Ibadan branch should team up with other branches to ensure its revival and vibrancy.

     

    The commercialisation of NBA elections

     

    The NBA has a constitution and a code of ethics which guide the affairs of its members inter se and the practice of law in the country.  But such rules of  professional conduct  are now observed in breach as bar leaders are no longer elected on the basis of their proven record of service, contribution to legal development, commitment to the bar and personal integrity. The NBA  elections have been completely commercialised. The voters register is manipulated and filled with names of unqualified members including the practices and  the manipulation of the electoral process. The  Electoral Committee headed by a former NBA President, Lanke Odogiyan Esq which conducted the 2012 NBA election,  rightly observed  that “Elections into key offices in the NBA have become highly monetised and scandalously expensive. We cannot continue this way. We must courageously address the problems and find solutions to them.”

    Although the Okey Wali Executive undertook to implement the report of the committee on electoral reform, no measure has been put in place to sanitise the corrupt electoral system. As members of the honourable profession, we must ensure that bar elections are not won on the basis of the size of the pockets of candidates. If the NBA cannot conduct credible elections, it has no moral right to monitor national elections managed by the Independent National Electoral Commission. It is however my submission that unless the delegate system is abolished and replaced with universal adult sufferage through the  e-voting system the NBA is on the path of self destruction.

    Last year, the NBA leadership decided to increase  the practising fees paid  by all lawyers. But in spite of the astronomical rise in the said practicing fees  the  NBA goes around these days to solicit for funds from the federal and state governments to run its affairs.  A few months ago, the sum of N70 million was donated to the NBA by one of the governors in the south/south region. The decision of the leadership to corner the entire gift was vehemently opposed by the local bar in that state. Although the crisis was amicably resolved,  the NBA leadership has banned its 109  branches from receiving “donations” on behalf of the national body.  It is pertinent to note that since strings are usually attached to such Greek gift  the independence of the NBA has been compromised. The ugly development has been confirmed by the Chidi Odinkalu Committee which was set up in 2013 to investigate the affairs of the NBA. Without mincing words, the committee indicted the leadership of the NBA for “dangerously depending on big envelope donations from Politically Exposed Persons (PEPs) who are now in a position to dictate the organisation’s programmmes or interfere in its processes.” Those who are familiar with the enormity of the crisis of integrity deficit in the NBA will not be surprised that the report has not been tabled for deliberation in any of its meeting.

     

    On the imperative of democratisation

     

    In a letter addressed to the NBA President, Mr. Okey Wali SAN on December 13, 2012, I was compelled to demand for the democratisation of the NBA. As I could not find any legal basis for conferring the life membership of any statutory body anyone in a democratic society I asked the NBA to demand for an amendment of the relevant provision of the Legal Practitioners Act more so, that  some legal practitioners who are in their 40s and 50s have been appointed into the body. In  opposing  the headship of all NBA committees by Senior Advocates of Nigeria, I rejected my appointment as a co-chair of the NBA Judiciary Committee. Having been involved in the affairs of the bar for over three decades I have realised that  there are many members who are not in the inner bar but who are more suited  to serve the NBA in several capacities.

    For reasons best known to the NBA leadership my suggestions were ignored. Hence, the same set of  SANs and a few other lawyers have been recycled to  serve the NBA in all statutory bodies in a law society which boasts of over 100,000 members. In a demonstration of arrogance of power, the NBA does not take cognisance of the provisions of relevant laws in nominating members to serve in statutory bodies.  For example, contrary to Part 1 of the 3rd Schedule to the Constitution  which provides that the NBA shall nominate for appointment to the National Judicial Council five members  “who have been qualified to practise for a period of not less than fifteen years, at least one of whom shall be a Senior Advocate of Nigeria” I have confirmed that all the five lawyers nominated by the NBA leadership  as members  the NJC are Senior Advocates of Nigeria. All of them are men.

    Furthermore, out of the five Bar representatives, three are former NBA presidents. Indeed, two are members of the same branch of the NBA. One of the two is a life member of the Body of Benchers, a life member of the NBA NEC and the current chairman of the Council of Legal Education. The other member is the sitting President of the  NBA. In the circumstance, the NBA has found it difficult to take a stand  on any of the controversial decisions of the NJC. It is high time the trend was reversed in the overall interest of the legal profession. That is the only way to ensure that the slots allotted  to the NBA in all statutory  bodies are democratised in a manner that they reflect  gender and other interests of the generality of the members.

     

    The independence of the bar

     

    During the NBA NEC meeting held in Ado- Ekiti in February this year, the Chief Judge of Ekiti state, the Honourable Justice A. Daramola observed that “the Nigerian Bar Association  has lost its voice”. The observation of his lordship cannot be faulted. Having compromised itself through corrupt practices it is not surprising that the NBA can no longer speak out on any major national issues. With respect to the massive infringements of human rights by law enforcement agencies and disobedience of court orders  the NBA has been sitting on the fence.  In a country where impunity has become the order of the day the NBA has not deemed it fit to join issues with the government on several complaints of executive lawlessness. Out of pure selfish consideration the NBA has only gone to court, in recent time,  to challenge the provisions of the Anti-Money Laundering Act that require certain professionals including lawyers to file returns to prevent the laundering of proceeds of crime.  As far as I am concerned, lawyers who make money from legitimate transactions should not hide under the cloak of client/counsel confidentiality to avoid accountability.

    However, I must not fail to mention that  the NBA leadership has made some interventions on certain issues of public interest. But some of them have further exposed the NBA to ridicule. For instance, the NBA teamed up last year with the minority who lost the chairmanship election of the Nigeria Governors Forum (NGF). Like the Presidency which recognised the candidate who scored 16 votes as the chairman of the NGF in place of the candidate who won the election with 19 votes the NBA leadership called for the proscription of the NGF on the ground that it could not manage its own affairs. Convinced that the reactionary stance of the NBA leadership was totally uncalled for,- I was compelled to call on all progressive lawyers to “adopt decisive measures to free the NBA from the grip of anti-democratic forces and reposition it to resume its traditional role of defending the rule of law and the expansion of the democratic space in the country .“

     

     

  • Shame high-profile convicts, says ex-judge

    A retired judge of the Ogun State High Court, Justice Babasola Ogunade, believes Nigeria has tolerated corrupt public officials for too long. According to him, until they are shamed rather than celebrated, corruption will persist. He urges Nigeria to learn from the United Kingdom. JOSEPH JIBUEZE writes.

    While reading the London Evening Standard in November 2009, a former Ogun State High Court judge, Justice Babasola Ogunade came across a story that struck him.

    It was the report (and pictures) of former deputy mayor of London, Ian Clement, re-painting lavatories and changing rooms at King George’s playing fields in Sidcup, Kent.

    It was Clement’s punishment for fiddling £156 of his expenses. He was caught using his official credit card to pay for three lunches with his 23-year-old girlfriend Claire Dowson.

    After reading the story, Justice Ogunade carefully folded the newspaper cutout and saved it.

    Believing it is something worth learning from by Nigerians, he made cutout available to The Nation, five years after.

    He believes that until the country gets to that stage where corrupt persons, no matter how much they steal or how highly placed, are harshly dealt with, the problem of graft will persist.

     

    The full story

     

    The online version of the story published on November 29, 2009, reads: “Public shame of Boris’s deputy mayor who paints loos.

    “The Standard’s exclusive pictures show (Mayor of London) Boris Johnson’s former right-hand man for the first time since he was convicted of fraud over his City Hall expenses.

    “Five months ago Ian Clement, 44, was one of the most powerful political figures in London. He flew around the world helping to plan the 2012 Olympics and represented the capital at the 9/11 memorial service in New York.

    “But in a sharp fall from grace, he is now completing 100 hours of community service and living with a suspended 12-week prison sentence, a 9pm curfew and an electronic tag.

    “Unemployed, Clement’s 27-year political career is over. He is pictured helping refurbish the lavatories and changing rooms at King George’s playing fields in Sidcup, Kent.

    “He spent more than an hour labouring outside with a handful of other offenders on community service, who were taken to the grounds by bus.

    “A friend today said Clement is ‘totally destroyed’ by the conviction.

    “Clement, a former Bexley councillor, pleaded guilty to three counts of fraud by false representation after using his City Hall credit card to entertain his girlfriend and another woman.

    “He was given a corporate card to cover any ‘exceptional’ expenditure while abroad on City Hall business. But he used it to pay for two meals with 23-year-old Claire Dowson — for whom he left the mother of his son — and a dinner with PR assistant Joanna Laban. He lied and said he had dined with Tory council leaders. The three meals cost £156.70.

    “Clement was first suspected of impropriety last November when he started sending cheques to City Hall to cover personal spending he had made on his work credit card.

    “He initially used it to upgrade tickets for himself and a colleague on a flight to the Beijing Olympics. Clement then ignored a series of warnings and continued to use the card for more than £2,300 of personal spending, racking up bills in excess of £7,000.

    “His spending included £535 of work to his Jaguar and two £100-plus meals at Le Pont De La Tour restaurant at London Bridge, all of which he has since repaid.

    “When the spending was revealed, the Mayor initially decided his friend had made an error of judgment but, following warnings, demanded his resignation on 22 June. The Greater London Authority referred the matter to the police two days later.

    “Sentencing Clement, Judge Quentin Purdy said he had ‘flagrantly and arrogantly’ misused taxpayers’ money.

    “He told Clement he had come ‘very close indeed’ to being sent to prison. ‘You knew full well what you were doing was dishonest and it is your fault and your fault entirely. I accept you have lost much as a result of your wrong-doing but you regarded yourself as above the rules. Your dishonesty is now clear for all to see and it is entirely your fault. You were in a position of considerable authority and you arrogantly and flagrantly abused that with meals at the public expense.’

    “Clement, a former postman from Crayford, publicly apologised to Mr Johnson outside Westminster magistrates’ court, saying he was ‘truly sorry’. He admitted he had ‘let down’ taxpayers and colleagues.

    “‘I have failed to live up to the high standards of officer that were expected of me. I have given many years of dedicated public service to London which has been my pride, my passion and my life. That is over now. I very much regret and am truly sorry for my actions that have let down many good people, my family friends and colleagues including and not least the Mayor of London.’”

     

    A lesson for Nigeria

     

    “Our society has gone to the dogs,” said Justice Ogunade in reference to the erosion of the country’s value system. To him, if it were Nigeria, the money “stolen” by Mr Clement would be considered too insignificant to warrant him being subjected to such public ridicule.

    He believes that apart from a change in the value system, it would require political will to shame corrupt officials.

    He noted that as the mayor right-hand man, Mr Clement he could easily have been shielded from prosecution, especially considering the amount involved. The case could also have been frustrated by the courts.

    Significantly, Mr Clement repaid the illegal expenses, but was still made to undergo community service. He admitted the wrongdoing, and never attempted to appeal against the verdict.

    He was given a 12-week jail sentence suspended for 18 months, ordered to carry out 100 hours of unpaid community work, stayed at home between 9pm and 6am and pay £1,000 costs.

    “Here, people in authority trample the law and get away with it. Until we’re able to shame corrupt persons, corruption will remain Nigeria’s undoing,” the judge said. Will Nigeria learn?

     

  • Court of Appeal declares title of Ajiwe land in favour of family

    The Olumegbon family of Ajahland, Lagos has lost the right to the title of the sprawling Ajiweland to the Ajiwe family, courtesy of the Court of Appeal.

    The appellate court sitting in Lagos  reaffirmed the title of the descendants of Ajiwe family as the authentic owners of Ajiwe village.

    The appellate court, in a  judgement delivered in the appeal between Taiwo Elemoro and Chief Fatai Abiodun, the Olumegbon of Lagos, upturned the judgment of a Lagos High Court on the matter.

    The appellate court  apart from restraining the Olumegbon family against selling or doing anything to the land without first informing the Ajiwe family also awarded the sum of N50,000 to be paid as cost in favour of the Ajiwe family.

    The appellants as claimants had sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    The High Court of Lagos presided by Justice Beatrice Adesuwa Oke-Lawal  had in her judgment delivered on February 2, 2012 in suit No. ID/2638/2001, in which Chief Olumegbon was sued as the second defendant, declared that the land measuring 21.886 hectares belong to the Olumegbon family.

    The lower court, while refusing the claim of the appellants, declared that the respondent is the overlord of Ajah and environ.

    But the Ajiwe family had through their lawyer, Mr. Gbenga Ojekunle, gone to Appeal Court to assert their rights following the forceful seizure of Ajiwe village land ,which the Lagos State Government had excised to the Appellants vide the Lagos State Official Gazette No. 9, Vol. 9, of 28th March, 1996, The appellants as claimants sued the respondent as defendant at the High Court of Lagos State along with other trespassers.

    However the Court of Appeal in its judgment delivered by Justice Abimbola Osarugue Obaseki-Adejumo, Justice Amina Augie and Justice Y. B Nimpar set aside the lower court judgment.

    The Appellate Court declared that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State government.

    “Following from the above resolution of issues one and two in favour of the Appellants, the appeal succeeds and the judgement of Hon. Justice Beatrice Adesuwa Oke-Lawal delivered on February2, 2012 is hereby set aside. The appellants proved that they are entitled to a declaration of title over the land excised to Ajiwe Village indigenes by the Lagos State Government.” The Court of Appeal declared.

    “The claim of the appellants succeeds and therefore, a declaration is hereby made that the land measuring 21.886 hectares of land which is the land area covered by the excision belongs to the claimants to hold same in trust for the descendants of Ajiwe village.” The Court of Appeal further declared.

    The Appeal Court upheld the argument of the appellants that the controversial land having previously been acquired by the Lagos State Government extinguished all previous rights over the land stressing that the alleged right of the respondent also went away with that acquisition.

    “It is beyond doubt that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land is returned as in this case, a new root of title by grant will be created.

    “This means therefore that the compulsory acquisition of the 823 square meters of land in the Lekki Peninsula by the government of Lagos State had extinguished the previous right of both claimant to the land. That furthermore, the excision of several villages including Ajiwe has created a new root of title for the people of Ajiwe village and those other villages and therefore the issue of having their root of title traced to Ogunsemo and or Olumegbon is uncalled and ineffective as those roots are gone with the acquisition and the root of Ajiwe village is now rooted in the Lagos State government” the appeal court stressed

    On the claim by the respondents that they are indigenes of Ajiwe which the appellants denied, the court held that there is a distinction between residency and indigeneship pointing out that one can be an indigene of a place but not resident there and one can also reside in a place and not be indigenous to it.

    “On this score, the trial court erred when it held that the excision was not to the claimants after finding that there was indeed an excision. The gazette says to indigenes and that is not a single person’s name, that the names of the appellant can be said not to correspond. Indigene is a group of people who are natives to Ajiwe because it is a grant from government, it must not necessarily be to the original owners of the land but could be to strangers and in this case it was to the people who are native to Ajiwe. The claimants are native to Ajiwe”, the Appeal court further stated.

    The Appeal Court held that the appellants have  proved that they are entitled to a declaration of title over the land excised to Ajiwe village indigenes by the Lagos State Government and issued a perpetual injunction restraining the respondents from encroaching on the land and doing such acts as selling, building, developing any part thereof without the consent and permission of the appellants, i.e the Ajiwe family

    Restraining the respondents, the Court of Appeal stated: “Again a perpetual injunction restraining the Respondent, his agents, servants, assigns, successors in title or anybody whosoever, claiming through, by or for him from trespassing on the Appellants’ land and from disturbing the appellants from peaceful and quiet enjoyment of their excised land. The appeal succeeds. Cost of N50,000.00 to the Appellants”

  • Chime’s political legacy

    As Nigeria gets close to another general election in 2015, a number of the final-term political office holders are beginning to worry about legacy. For those of them who live the lie that a legacy can be concocted by propaganda and subterfuge, you hear them parroting such things as ‘His Excellencies legacy projects’, when they are referring to mundane things like a monthly stipend paid out to a few political thugs in the name of youth employment program. Those who have been serving themselves and their cronies instead of those that elected them are hoping to hoodwink posterity, that they also left legacies.

    But regardless of the shenanigans of the officials, they must note that legacies are the enduring projects and initiatives that are handed over to future generations. A legacy can be positive or negative. It can also be tangible or intangible. Governor Sullivan Chime of Enugu state has a number of enduring physical projects that can appropriately be classified as legacy projects. The new state secretariat complex is unarguably one of them. But what of the intangibles like political legacy. My colleague on the Editorial Board of this paper, Mobolaji Sanusi, in his column last Friday took a snap from his podium on the political legacy of Barrister Sullivan Chime, over the ill-mannered decision to sponsor the impeachment of the deputy governor of the state, Mr. Sunday Onyebuchi, ‘for keeping poultry in government house among other puerile allegations’.

    Hear Sanusi’s well considered advice to Governor Sullivan Chime, ‘His imperial Majesty Chime must watch his back for there is something called the law of Karma. It is inescapable. His predecessor, Chimaroke Nnamani, fought his godfather and benefactor, Jim Nwobodo. Chime has repaid Nnamani with an overdose of tyranny and treachery. He should not think that he has immunity against being paid back in his own coin. If he likes, let him pick his own biological son as successor’. Sanusi went on an on with historical anecdotes, in the hope that Governor Sullivan would halt his local version of President Goodluck Jonathan’s nationally orchestrated political impeachments, in some states controlled by the opposition, All Progressive Congress (APC).

    I commend Sanusi’ counsel to Governor Chime, hoping he is not too far gone in his magisterial imperialism as not to give a hoot, like that fly feasting on a corpse, not realizing that the coffin would soon close in on it, for mutual burial. Just like Chime’s secretariat stands out among his physical legacy, his determination to champion the impeachment of Sunday Onyebuchi, for unjust cause, will stand out as his major political legacy. To make the matter worse for the Governor, the reasons for the impeachment is as puerile as it can ever be. But the shame for accepting those silly reasons belongs to the rag-tag members of the state house of assembly, who by their own choice are not better than the houseboys and housemaids of the executive arm of the state government.

    The Governor’s own shame is that he is doing the young man in, to create an opportunity for his Chief of Staff, Mrs Ifeoma Nwobodo to have an un-impeded access to run for the Enugu-west senatorial election, on the platform of the Peoples Democratic Party (PDP), in 2015. Just as I had argued on this page in February, when the Governor started this journey to politically strangulate his deputy, all the political actors who are suffering humiliation in the hands of the state governor, should move over to APC. The victims of Governor Chime’s political legacy as I argued in that piece are many, considering that he had ordered that all two-term office holders, including the deputy senate president, Ike Ekweremadu, should prepare for retirement.

    The Governor’s present undemocratic maneuvers against his deputy, is one of the similar reasons why this column canvassed for the emergence of two nationally strong parties, so that when temporal political office holders or party henchmen turn to imperial majesties, there will be the opportunity to help them realize that empires are anachronistic and anathema to democracies, however inefficient our democracy may be. So if Governor Chime is determined to keep the PDP for himself and his cronies; those who are aggrieved should be bold enough to jump ship, and move over to the APC.

    As I have also previously complained on this page, Governor Chime’s other political legacy, is the imposition of local government chairmen across the states. Since his ascendency, well just like his colleagues, what passed off as party primaries where charades. So the context was to get his nod for the party’s ticket, while the state electoral commission complete the hatchet job, by ensuring that the ruling party ‘wins’ all the positions that are contested. The result is that most of the ‘locally elected officials’ are not prepared for the offices they occupy. The trickle down effect is that most local government officials come and go without any impact, not to talk of any legacy.

    Unfortunately, political office is like alcohol. The more you abuse it, the more you are hooked-on to the substance. The chance is that Governor Chime will see all the advice against substance abuse, as the idle talks of the uninitiated. In his state of intoxication, he will believe that he can not suffer the faith of his predecessors in office, particularly former Governor Chimaroke Nnamani, who was defeated by ‘a neophyte’ in the senatorial election, despite the concentration of his legacies as Governor, in that senatorial zone. A final word of advice for my state Governor; he should allow the opposition APC, to flourish, as that may be the platform for him when the man he will install as Governor, settles down to politically deal with him, in accordance with tradition.

  • Appeal Court reinforces precedent on suing of non-juristic parties

    The Respondent in this appeal was a supernumerary police officer working at the Nigeria Police (SPY) Shell Police Command Ogunu Warri. He was posted to work on night shift at one of the 1st Respondent’s Offices on 27th August 2000. At the close of his shift that night he went home but upon returning to the office on 28th August 2000 to collect his keys which he forgot, he was arrested on the allegation that there was an attempt to break into one of the offices the previous night that he was on duty. He was eventually released on 30th August 2000 after an orderly room trial which recommended his dismissal. Peeved by the turn of events, the Respondent instituted proceedings at the the Warri Judicial Division of the High Court of Delta State, the Respondent herein, as Plaintiff before the lower court claiming a declaration that his purported discharge and dismissal from service by the Respondents/Defendants was illegal; a declaration that the Plaintiff is still in the service and still in the employment of the 1st Defendant; payment of all the Plaintiff salaries and all entitlements from September 2000 till date; and the sum of N100,000,000.00 (One Hundred Million Naira) for his unlawful, illegal and wrongful detention by the Defendants. The parties filed and exchanged pleadings and the action was contested on the pleadings as filed. The Respondent testified for himself in proof of his case and did not call any other witness while one witness testified for the Appellants in defence of the action. In its judgment delivered on the 11th day of November 2005, the High Court of Delta State entered judgment in favour of the Respondent with a declaration that the purported discharge and dismissal of Plaintiff from the services of the Defendants was illegal, null and void and of no legal effect whatsoever; an award of the sum of N85,000,000.00 (Eighty Five Million Naira only) to the Plaintiff, as damages for his unlawful, illegal and wrongful detention by the Defendants from 28/8/2000 to 30/8/2000. The Appellant being dissatisfied with the judgment lodged an appeal against the same at the Court of Appeal.

    The Appellants distilled three issues as arising for determination in their brief of argument, the Respondent also distilled three issues for the determination of the appeal. The Court after duly considering the issues as formulated by the parties considered and determined this appeal on the following issues:

    1. Whether or not the learned trial judge had the jurisdiction to entertain and determine the suit of the Respondent?

    2. Whether by the evidence before the trial court, the Respondent proved his case so as to entitle him to judgment?

    In arguing issue number one, the Appellants presented their postulations in two facets, viz., absence of jurisdiction on account of the action being against the Nigeria Police Force which is an agency of the Federal Government and lack of jurisdiction on account of the Appellants as sued not being juristic persons. The contention of the Appellants was that the Respondent’s claim falls within Section 251(1)(q) and (r) of the 1999 Constitution which vests exclusive jurisdiction in the Federal High Court in respect of civil causes and matters dealing inter alia, with interpretation of the Constitution as it affects the Federal Government or any of its agencies and for any action or proceedings affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

    On the issue of the juristic capacity of the Appellants, it was submitted that the names of the Appellants as reflected in the Writ of Summons are not persons known to law, in consequence of which the court did not have the competence to adjudicate between the parties. The Appellants argued that the name of the 1st Appellant as disclosed in the writ does not disclose that the 1st Appellant is a legal person and that being a limited liability company registered under the Companies and Allied Matters Act, the 1st Appellant cannot be sued except in its incorporated name which by Section 29 of the Companies and Allied Matters Act must end with the word “Limited”. It was then contended that the 1st Appellant as sued lacks the capacity to be sued, consequent upon which the action was liable to be struck out. The case of ATAGUBA vs. GURA (2005) 126 LRCN 982 at 985 ratio 1; (2005) LPELR-584(SC) was relied upon. It was submitted that the Respondent purporting to regularize the name of the 1st Appellant in the Further Amended Statement of Claim without leave of court to amend the process did not confer on the 1st Appellant the status of a legal person to be sued in law. The Appellants concluded that since they were non-juristic persons the lower court lacked jurisdiction to entertain the suit.

    In reply, the Respondent submitted that it is the claim before the court that determines the jurisdiction of the court and that the reliefs claimed were predicated on contract of employment between the 1st Appellant and the Respondent, damages resulting from breach of the contract by the 1st Appellant and the tortuous liability of the Appellant for the wrongful and unlawful detention of the Respondent. It was posited that the reliefs claimed were outside the jurisdiction of the Federal High Court. The case of ONUORAH vs. KRPC LTD (2005) 6 NWLR (PT. 921) 392; (2005) LPELR-2707(SC) was referred to. The Respondent maintained that the reliefs claimed did not fall within Section 251(1) of the 1999 Constitution and that the fact that a party to an action is an agency of the Federal Government cannot ipso facto clothe the Federal High Court with jurisdiction; and that all matters which did not fall within Section 251 of the 1999 Constitution were still within the jurisdiction of a State High Court.

    On the submission that the Appellants were not juristic persons, the Respondent contended that the Further Amended Statement of Claim had referred to the 1st Appellant’s name with the word “Limited” added thereto and that though the word “Limited” was inadvertently omitted in the writ of summons, the defect was cured in the Further Amended Statement of Claim which supersedes the writ of summons. The Respondent stated that the Appellants did not oppose the amendment to the pleading and that issues were never joined as to whether the 1st Appellant was not a juristic person, The Respondent maintained that the Appellants can therefore not be heard to complain about the legal status of the 1st Appellant on appeal since they failed to object to the amendment to cure the omission at the trial court. The case of N.U.B. LTD vs. SAMBA PET. CO. LTD (2006) 12 NWLR (PT 993) 98 at 123; (2006) LPELR-5974(CA) was relied upon.

    On the question of whether the cause of action falls within the jurisdiction of the Federal High Court, the Court held that as rightly submitted by the Respondent’s counsel it is the claim before the Court that determines the jurisdiction of the Court. See OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23; (2008) LPELR-2595(SC). The Court having given an insightful consideration to the reliefs claimed by the Respondent, was satisfied that they are not in respect of matters that fall within the provisions of Section 251(1) of the 1999 Constitution, wherein exclusive jurisdiction has been vested in the Federal High Court.

    On juristic capacity, the Court held that neither of the Appellants is a juristic person and the Respondent did not commence the action against proper parties. The Court held that it is hornbook law that a Court cannot engage in adjudication when the proper parties are not before it. The Court held that there was absolutely nothing to show that either of the Appellants, in the name sued, is a juristic person and their lack of jural capacity robbed the Court of jurisdiction to entertain the action. See OLORIODE vs. OYEBI (1984) 1 SCNLR 390; (1984) LPELR-2591(SC) and ZAIN NIGERIA LTD vs. ILORIN (2012) LPELR (9249) 1. This issue was partly resolved in favour of the Appellants as it relates to their juristic capacity.

    On issue two, the Court held that an appellate Court is duty bound to interfere with and reverse the decision of a trial Court arrived upon a wrong premise or which is otherwise perverse. See ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410; (1992) LPELR-95(SC). The decision of the lower Court was held to be neither founded on sound legal principle nor supported by the facts on record. The Court held that the lower Court got it wrong on the existence of an employer/employee relationship between the 1st Appellant and the Respondent. And the lower Court equally got it wrong on the liability for unlawful arrest and detention. The Court held that the decision of the lower Court was clearly perverse and cannot be allowed to stand. Accordingly, issue two was resolved against the Respondent.

    In a summation the Court held that the appeal was immensely meritorious and it was allowed. The judgment of the lower Court delivered on 11th day of November 2005 was set aside. The Respondent’s action was thereby dismissed.

    Edited by LawPavilion

    LawPavilion Citation: (2014) LPELR-23325(CA