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  • Falana and tort of negligence

    Falana and tort of negligence

    FEW weeks ago, Femi Falana, SAN, foremost human rights activist and legal practitioner extraordinaire who has substantially devoted his time, talent, training and treasure to fight the cause of the downtrodden, broke his knee in a manhole in front of his Abuja office. Since the incident, he has hobbled with his knee in a Plaster of Paris (POP) and a walking stick. Narrating his ordeal, Falana recounts that the manhole which appeared as part of the normal road caved in as he stepped on it.

    Expressing surprise that a road could be constructed with such a manhole not properly secured, or a notice given, Falana decided to approach the court to ventilate his grievance and seek redress. As he pointed out, the primary motive for instituting an action and seeking remedy against the road builder and the road owner is to compel them to realise that they owe a duty of care against road users. He believes that any person affected by a negligent conduct of a public authority, owe a social duty, to hold the authority accountable, which in turn compels efficiency.

    Without prejudice to the particularity of Falana’s claim and the defence available to the defendants, I will in this piece examine the basic provisions of Law of Tort on Negligence.  As posited by learned author, Professor Ese Malami: “the purpose of the tort of negligence is to identify breach of a duty of care, and offer remedy to a person who has suffered harm. In other words, the purpose of the law of negligence is to offer remedy to a person who has suffered harm, because of a breach of a duty of care.”

    From the definition, the purpose of the tort of negligence is to hold accountable any person who has the responsibility to exercise the duty of care in his conduct. Where for instance, a person acts negligently or carelessly, and a person suffers damages as a result of such a negligent conduct, the tort of negligence provides legal opportunity for the claimant to seek damages. Of note, it is not all negligent acts that give right to damages. For the negligent act to be actionable, the defendant must owe the claimant a duty of care.

    Defining negligence, Akpata JSC, in Odinaka vs Moghalu, (1992) 4 NWLR part 233, page 1, stated: “Negligence is the omission … to do something which a reasonable man under similar circumstances would do or, the doing of something which a reasonable and prudent man would not do.” In Heaven vs Pender (1883) 11 QBD 503 at 507 CA, Brett MR, held: “Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property.”

    It will be jurisprudentially significant, if the courts begin to award damages for the varied and rampant grievous neglect of duty of care by public authorities. Travelling on federal, state and local highways, drivers and passengers are confronted with unannounced craters on the highways which have caused the loss of several lives and properties. Until President Olusegun Obasanjo brought them down, most of those death traps were tolled.

    Interestingly, the Minister for Works, Power and Housing, Babatunde Fashola SAN, has announced that the toll gates are coming back after the roads are repaired. While many Nigerians may have reservations about the return of toll gates which were sited discriminately, those who ply the affected roads will feel more offended if bad roads are also tolled. But it will open a new chapter, if persons who suffer damages as a result of the bad roads could maintain an action against the road builders and the road owners.

    But of course, the tort of negligence is not a floodgate for every loss. To successfully maintain an action, there are basic principles which must apply before a claimant could succeed. Again, Professor Malami, in his book: Law of Tort lists the conditions thus: that the defendant owed a duty of care to the claimant, that the defendant breached the duty of care and that the defendant suffered damage as a result of the breach.

    As Lord Esher MR, stated in Le Lievre vs Gould (1893) 1 QB 491 AT 497: “a man is entitled to be as negligent as he pleases towards the whole world, if he owes no duty to them.” Many Nigerians will anxiously await the pronouncement of the court, whether the builder and owner of a highway owe a duty of care to a road user, on reasonable warranty of the safety of the road? When road signs are placed on the highways warning users approaching a bend, a bridge, a hill or sharp descent, are those acts exercise of duty of care?

    The duty of care was defined by Lord Atkin, in his famous dictum in Donoghue vs Stevenson (1932) AC 562 HL, where he said: “The rule that you are to love your neighbour became in law, you must not injure your neighbour…. Who, then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to questions.”

    In practice, it appears the duty of care in tort of negligence is defined more widely by courts when it has to do with private persons unlike public authorities. Perhaps that explains the higher level of negligence by public authorities. But with the conduct of public institutions causing citizens grievous damages, the time appears ripe for holding them more accountable for negligent conducts. One area the law should be vigorously explored is the criminal negligence of public utility companies like electricity providers.

    It is heart-rending when an electricity surge for instance, causes heavy damage to factory machines or even home appliances. It should be unacceptable that after paying for electricity, one has no idea when the services paid for would be available, such that perishable items stored in the freezer goes to waste. It will be interesting if customers of electricity distribution companies can successfully maintain an action in Tort, against the service provider, apart from rights arising from breach of contract.

    If Femi Falana SAN can successfully maintain an action for the negligent conduct of the road builder and road owner for the harm caused him, the case will be precedence for Nigerians suffering in silence from the negligent acts of state actors. To succeed however, the limitation imposed by the doctrine of public policy which Lord Denning referred to in Dorset Yacht Co. Ltd vs Home Office (1969) 2 QB 412 at 426 must be expounded in his favour.

  • Falana to AGF: substantiate allegation of property sale by EFCC to me

    Falana to AGF: substantiate allegation of property sale by EFCC to me

    LAGOS lawyer Femi Falana, SAN has challenged the Attorney-General of the Federation, Mr. Abubakar Malami, SAN, to substantiate his allegation that the Economic and Financial Crimes Commission (EFCC) allocated or sold a property to him.

    Falana, in a statement yesterday, said the allegation that the EFCC sold  the property at No 42, Gana Street, Maitama District, Abuja or any property to him “is a figment” of Malami’s “fecund imagination for mischief”.

    The human rights activist said “instead of engaging in a cheap campaign of blackmail”, Malami should have taken steps to tell the court what he knew about the property or recover the alleged N1 billion property for the Federal Government.

    The statement reads: “When the news of the scandalous recall, reinstatement, promotion, deployment and payment of the arrears of salaries and allowances of a fugitive from the law, Mr. Abdulrasheed Maina, broke out last month, I joined other well-meaning Nigerians in calling on President Muhammadu Buhari to sanction the members of his administration, who had exposed the nation to ridicule.

    “Shortly thereafter, the President ordered Mr. Maina’s removal from the public service and directed that an inquiry be conducted into the matter. Aggrieved by my intervention in the shameful episode, the fugitive and his cohorts have attempted, albeit unsuccessfully,  to link me with  the criminal diversion of one of the properties purportedly  recovered by the Presidential Task Force on Pension Reform.

    “According to The Nation newspaper of November 24, 2017, Mr. Maina’s official new legal adviser and Attorney-General of the Federation, Mr. Abubakar Malami,  SAN ‘mentioned a property at 42, Gana Street, Maitama District, Abuja, which he claimed is worth N1 billion. He said it was allocated to a Lagos lawyer’.

    “Even though Mr. Malami did not mention my name, The Nation newspaper had reported that Mr. Maina had linked me with the property. Hence, I have decided to join issues with Mr. Malami over his false claim that the EFCC had sold the property in question to me.”

    The human rights lawyer added: “Contrary to Mr. Malami’s claim, I never bought any property from the Economic and Financial Crimes Commission (EFCC). If Mr. Malami had conducted a search on the property in question, he would have found that it was one of the assets used to  collaterise  a loan obtained from Bank PHB by A Group Properties over 10 years ago. He would also have found that the property is a subject matter of a suit which is currently pending before the Federal High Court sitting at Abuja. (See Suit No /2015 between Assets Management Corporation of Nigeria v A Group Properties Limited).

    “The suit was instituted by AMCON due to the failure of the company to liquidate the loan. In granting the ex parte application filed by AMCON in the matter, the court ordered an  interim forfeiture  of the assets  of A Group Properties Limited, including No 42, Gana Street, Maitama District, Abuja. The said order was granted on November 11, 2015.

    “However, in a bid to pay the loan, A Group Properties Limited decided to sell some of the properties. The sale of the property in question to me was made subject to the setting aside of the order of interim forfeiture which had been obtained by AMCON. Up till now, the case has not been concluded as the parties have asked for time to resolve the dispute amicably and file terms of settlement.

    “To that extent, the transaction on the property remains inchoate. Although the said order of interim forfeiture was granted in favour of AMCON over two years ago, Mr. Malami has not deemed it fit to disclose to the Federal High Court that the property at 42, Gana Street, Maitama District, Abuja was recovered by the Presidential Task Force on Pension Reform.”

    Falana said: “Having regard to the facts and circumstances of this case, Mr. Maina’s allegation that the management of the Economic and Financial Crimes Commission  sold  the property at No 42, Gana Street, Maitama District, Abuja or any property to me is a figment of his fecund imagination for mischief. Since the Attorney General of the Federation, Mr. Malami SAN has apparently swallowed hook, line and sinker, the cock and bull story of Mr. Maina,  a fugitive from the law of the Republic, I am compelled to challenge him  to substantiate his mendacious allegation that the Economic and Financial Crimes Commission had allocated or sold the property in question or any other property to me. Instead of engaging in a cheap campaign of blackmail, Mr. Malami SAN should have taken steps to recover the alleged N1 billion property  for the Federal Government,  if he  is convinced that it is a proceed of crime.

    “However, since the order of the interim forfeiture of the property at No 42, Gana Street, Maitama District, Abuja, which was granted by the Federal High Court has not been vacated or quashed, the property is still vested in AMCON. Incidentally, the granting of the order was well reported by the Nigerian press at the material time.  See the report in THISDAY newspaper in www.thisdaylive.com/index.php/2016/04/03/amcon-goes-after-debtors.”

     

  • Go ahead

    Go ahead

    •Falana should sue the Fed Govt for making him fall into a manhole on a major road in the FCT

    Human rights lawyer and a Senior Advocate of Nigeria (SAN), Mr. Femi Falana, has threatened to sue the Federal Government, following injuries he sustained after falling into a manhole on his way to his office in Abuja.  Mr. Falana disclosed this in his speech at the National Stakeholders’ Summit on Whistle-blowing in Abuja on Tuesday last week. “I am sure you saw me limping and using a walking stick when I was coming in. It is because I fell into a manhole while walking to my office on Shehu Shagari Way. I broke my leg and I am even wearing plaster of Paris and I was even hospitalised. So, I won’t, like the ordinary Nigerian, leave it to God. I have decided that tomorrow (last Wednesday) I will sue the Federal Government.”

    What immediately comes into mind on reading the story is, so what? What’s the big deal about that, after all, many Nigerians have had the same experience and never made issues of it. So, why would Falana’s case be different?

    But all this is mere sentiment that would not advance the cause of good governance in the country. Indeed, the usual attitude of leaving such cases to go unchallenged is the reason why many governments have remained lackadaisical and incompetent. When victims of such incompetence or negligence (or both) take the time to seek redress in court, it would wake the governments from their slumber.

    And the reason is simple:  at the end of the day, they are likely to lose money. At least the government should be made to pick the medical bill of the victims as well as pay compensation for other losses the victims must have suffered.  It is only in our clime that such matters are taken lightly, or dismissed as an act of God while the victim suffers and bears the loss in silence.

    The issue is that more often, governments and even some individuals acting on their behalf have gone away with impunity because many Nigerians do not see the need to take them to court. As Falana himself noted, the general attitude of many Nigerians who experience such is to leave it to God.

    Many roads in the country – federal, state or even local governments’  –  have failed, with dangerous craters that have sent many people to their untimely graves. Although some people have been encouraged by the Falanas of this world to sue government over various acts of negligence, with the courts awarding judgments in their favour, we need more of such activism to make more Nigerians aware of their rights and obligations under the law.

    Governments have certain roles to perform to make life meaningful to the citizens. It is the duty of government to ensure law and order; it is its duty to provide good drainage, motorable roads, water, electricity, among others. But what we have in the country and many other developing countries is an abdication of responsibility by governments, leading to a situation where many people now provide their own water, light and even in some cases, roads. Many governments cannot even provide security, which is the most basic of their duties. Therefore, many Nigerians resort to employing mai guards (private security) or even ethnic militia to secure their homes and property.

    While we wish Mr Falana quick recovery from his injuries, we also encourage him to carry out his threat by taking the owner of the road where he sustained the avoidable injuries to court. Manholes are not supposed to be part of the road architecture. When they exist, they should be covered as is the case in other countries. They serve as outlets of tunnels where work men monitor and repair roads, water, electricity and other underground city infrastructure.  Regrettably, many of our roads have such holes that literally could swallow up human beings, a clear indication that some agencies have shirked their responsibility, and they should be made to pay for it. We should help our governments to serve us better.

  • Anti-graft war: Buhari is lone ranger, says Falana

    Anti-graft war: Buhari is lone ranger, says Falana

    •Activist-lawyer warns against using recovered loot to fund budget

    President Muhammadu Buhari is a lone ranger in the fight against corruption, Lagos lawyer Mr. Femi Falana (SAN) has said.

    He warned the government against using recovered money to fund the budget.

    Instead, Falana said the money should be placed in a special fund for specific projects like the Petroleum Trust Fund (PTF).

    The human rights activist spoke yesterday in Abuja at the National Stakeholders Summit on Whistleblowing organised by African Centre for Media and Information Literacy (AFRICMIL).

    Falana likened Buhari’s anti-graft war to a Commander-in-Chief of the Armed Forces without a troop behind him, a situation he described as a limitation.

    To buttress his point, he cited the many cases of corruption allegations that had come up under the administration.

    He said: “The bulk of allegations that is oozing out of Villa are disturbing. You must understand the limitation of the ongoing war by the All Progressives Congress (APC). In fact, as far as many people are concerned, our President is a Commander-in-Chief without troops behind him.”

    He added that the President is facing a contradiction just as he did in 1983.

    His words: “He wanted to fight corruption and unfortunately, he ran into contradiction as he is already running into now. Some of the people serving under him didn’t believe in the fight against corruption. So, they expose him to ridicule and that is what is going on now.”

    Citing the outcry of the President’s wife over the situation of the Presidential Villa’s Clinic, which got a budget of N3 billion and yet had no single syringe, Falana said: “If you watch closely what is going on, the bulk of allegations of corruption against the government are oozing out from the Villa and other places.”

    He chided the handling of whistleblowing policy.

    The senior lawyer said 10 whistleblowers had either been sacked or charged to court.

    Falana noted that if the country wants to fight corruption, the whistleblowing programme should be moved out of the Ministry of Finance.

    “I am sure you all already know the Ikoyi cash scandal. The man, who gave the information to the Economic and Financial Crimes Commission (EFCC), was detained by the Directorate of State Services (DSS). As if that was not enough, he was taken to Yaba Psychiatric Hospital. For him to be demanding for five per cent of $43 million (N14billion), he must be a mad man. So, the government took him to Yaba; he was admitted. He told the doctors that I am not mad; they are owing me money based on their own policy. “

    Noting that the war against corruption was been prosecuted very well, he, however, doubted the sincerity of the three  tiers of government in the fight.

    He said: “Out of the 774 local government areas in the country, no one is fighting corruption. Out of the 36 states governors, no one is fighting corruption. So, the task ahead of us is herculean.

    “You will be surprise to know that none of the states controlled by the All Progressives Congress (APC) is fighting corruption anywhere. The National Assembly as you know has frustrated all bills drafted by the executive and submitted to them to aid the fight against corruption. Therefore, the fight ahead of us is monumental.”

    He described Okorocha’s recent reception for South Africa President as an insult to Nigeria.

    To make the whistleblower policy work, Falana suggested that the whistleblowing unit, which is warehoused in the Ministry of Finance, be moved away from there and be put under an independent body.

    AFRICMIL Coordinator Mr. Chido Onumah said the summit was aimed at interrogating the whistleblower policy.

    The summit with the theme, “Fight against corruption: Harnessing the whistleblowing opportunity”, according to Onumah, was one of the many interventions under the project to ensure protection for whistleblowers.

    Mallam Nuhu Ribadu, who was the chairman of the event, warned that corruption still remains the country’s greatest enemy.

    He said it was not out of place for government to provide little incentives for whistleblowers.

     

  • Falana seeks sanction against indicted officials in Maina’s recall

    Falana seeks sanction against indicted officials in Maina’s recall

    Lagos lawyer Femi Falana (SAN) has advised President Muhammadu Buhari to take action against officials involved in the controversial recall of former Chairman of the Presidential Task Force on Pension Reforms Abdulrasheed Maina.

    In a statement issued yesterday titled: “President Buhari should act with dispatch on Mainagate”, the rights activist said “time is certainly not on the side of President Buhari”.

    Although the Federal Government has promised not to sweep the Mainagate under the carpet, Falana contended that the handling of the scandal generated by Maina’s recall has eroded the credibility of the anti-corruption crusade of the Buhari administration.

    He said: “Therefore, the sanctions, which the Federal Government will mete out to all the officials who conspired to expose the administration and the nation to such avoidable shame will make or mar the fight against corruption and impunity, which is the cornerstone of the domestic and foreign policy thrust of the administration.”

    Falana’s advice was sequel to a statement credited to Maina’s family, accusing Buhari administration of official betrayal.

    He noted that at a news conference in Kaduna two weeks ago, the spokesman for the Abdulrasheed Maina’s family, Mr. Aliyu Maina, had stated that “Abdulrasheed was in fact invited by this administration and he was promised security to come and clean up the mess and generate more revenue to the government by blocking leakages. He has been working with the DSS for quite some time and he was given necessary security. So, one wonders why all the agencies and various individuals responsible for his return are now denying”.

    But Falana contended that those who recalled Maina, “deliberately set out to subvert the anti-corruption policy of the Buhari administration”.

    He argued that through such demonstration of impunity, the officials involved have exposed the country to ridicule before the comity of nations.

    “In view of the revelation of the family, which has not been denied, it is crystal clear that the highly placed officials of the Federal Government, who brought Mr. Abdulrasheed Maina back to the country, gave him a clean bill of health, provided him with “necessary security”, reinstated him, promoted him and paid his arrears of salaries and allowances totalling N22 million deliberately set out to subvert the anti-corruption policy of the Buhari administration,” the senior lawyer said.

    Falana described the payment of N22 million to Maina as “the height of insensitivity to pay arrears of salaries to a fugitive at a time when hundreds of thousands of workers and pensioners are owed arrears of their legitimate emoluments”.

    The senior advocate queried: “Having found Maina and exonerated him, why was Interpol not informed that he was no longer wanted to stand trial for his role in the unprecedented pension fraud?

    “Since Mr. Maina’s ‘necessary security’ provided by the State Security Service has not been withdrawn, why is the Federal Government requesting the Interpol to declare him wanted again? Will Interpol believe that a man, who was provided with ‘necessary security’ cannot be found by the Federal Government? Why is the Economic and Financial Crimes Commission asking Nigerians to assist in searching for the fugitive?”

  • ‘Mainagate’: Buhari must act now, anti-corruption crusade marred- Falana

    ‘Mainagate’: Buhari must act now, anti-corruption crusade marred- Falana

    Lagos lawyer, Femi Falana (SAN) has advised President Muhammadu Buhari quickly take action against all officials involved in the controversial recall of the former Chairman of the Presidential Task Force on Pension Reforms, Abdulrasheed Maina.

    He said in a statement issued on Sunday titled, “President Buhari should act with dispatch on Mainagate” that “time is certainly not on the side of President Buhari”.

    Although the federal government has promised not to sweep the Mainagate under the carpet, Falana contended that the handling of the scandal generated by the recall of Maina has eroded the credibility of the anti-corruption crusade of the Buhari administration.

    “Therefore, the sanctions which the Federal Government will mete out to all the officials who conspired to expose the administration and the nation to such avoidable shame will make or mar the fight against corruption and impunity which is the cornerstone of the domestic and foreign policy thrust of the administration.”

    Falana’s advice was sequel to a statement credited to the family of Abdulrasheed Maina, accusing Buhari administration of official betrayal.

    He recalled that at a press conference in Kaduna two weeks ago, the spokesman for the Abdulrasheed Maina’s family, Mr. Aliyu Maina, had stated that “Abdulrasheed was in fact invited by this administration and he was promised security to come and clean up the mess and generate more revenue to the government by blocking leakages.”

    “ He has been working with the DSS for quite some time and he was given necessary security. So, one wonders why all the agencies and various individuals responsible for his return are now denying, ” Maina’s spokesman stated.

    In his reaction to the development, Falana contended that those who recalled Maina, “deliberately set out to subvert the anti-corruption policy of the Buhari administration”.

    He argued that through such demonstration of official impunity, the officials involved have exposed the country to ridicule before the comity of nations.

    “In view of the revelation of the family which has not been denied, it is crystal clear that the highly placed officials of the federal government who brought Mr. Abdulrasheed Maina back to the country, gave him a clean bill of health, provided him with “necessary security”, reinstated him, promoted him and paid his arrears of salaries and allowances totalling N22 million deliberately set out to subvert the anti-corruption policy of the Buhari administration,” he said.

    Falana described the payment of N22 million to Maina as “the height of insensitivity to pay arrears of salaries to a fugitive at a time when hundreds of thousands of workers and pensioners are owed arrears of their legitimate emoluments”.

    “Having found Maina and exonerated him, why was Interpol not informed that he was no longer wanted to stand trial for his role in the unprecedented pension fraud? “, he asked.

    He further asked: “Since Mr. Maina’s “necessary security” provided by the State Security Service has not been withdrawn,  why is the federal government requesting the Interpol to declare him wanted again?

    “Will Interpol believe that a man who was provided with “necessary security” cannot be found by the federal government? Why is the Economic and Financial Crimes Commission asking Nigerians to assist in searching for the fugitive?”

  • Award of $25 billion contracts: Baru violated NNPC Act, says Falana

    Award of $25 billion contracts: Baru violated NNPC Act, says Falana

    Activist-lawyer Femi Falana (SAN) has said that the defence of the Group Managing Director (GMD), Dr. Maikanti Baru, that he has powers to award contracts to the exclusion of the Minister of State in the Ministry of Petroleum Resources and the board of the Nigerian National Petroleum Corporation (NNPC) is illegal and violates the NNPC Act.

    Falana contended that the defence of Dr. Baru failed to recognise of the provision of Section 6 (c) of the NNPC Act, which has vested the Board of the NNPC with the exclusive power to”enter into contracts or partnerships with any company, firm or person which in the opinion of the Corporation will facilitate the discharge of the said duties under this Act.”

    Falana stated this in a statement issued in Lagos yesterday titled, “NNPC operates outside the law” in reaction to the on-going face-off between the minister and the GMD of the corporation, Dr. Maikanti Baru over the unilateral award of $25 billion contracts by the latter.

    The lawyer also noted that Dr. Baru failed to respond to the unilateral appointments of key staff in the NNPC without the approval of the Board of Directors, pointing out that since this particular allegation was not denied, it is reasonable to conclude that it is admitted by the NNPC management, even though the appointments in question were made in utter violation of the Federal Character Commission Act.

    Notwithstanding the report that the Presidency has thrown its weight behind the NNPC GMD in the face-off with the Minster, Falana stressed the need to review the matter within the ambit of the law.

    On the management of the NNPC and contract awards, Falana said: “For the avoidance of doubt, Section 1 (2) of the NNPC Act states that the affairs of the Corporation shall be conducted by the Board of Directors of the Corporation. Since it is conceded by Dr. Baru that some contracts are subject to the approval of either the Board or the Federal Executive Council, he is yet to inform the Nigerian people who approved the $25 billion contracts.

    “It is pertinent to state, without any fear of contradiction, that by virtue of Section 3 of the NNPC Act, the GMD as the chief executive of the Corporation, shall be responsible for the execution of the policy of the Corporation and the day to day running of the Corporation’s activities and its associated services. But, contrary to the erroneous impression conveyed by the management of the NNPC, there is no conflict whatsoever between the provisions of the NNPC Act and the Public Procurement Act, 2007 to justify the usurpation of the powers of the NNPC Board by the Tenders Board of the NNPC headed by the GMD. Therefore, the unilateral award of multi-billion dollar contracts in the NNPC by Dr. Baru or the Tenders Board is illegal, null and void in every material particular.

    “With respect, the totality of Dr. Baru’s defence was anchored on the mistaken belief that the NNPC Act does not require him to report to the Minister of State but to President Buhari in his capacity as the Minister of Petroleum Resources.

    “Dr. Baru must have forgotten that upon the removal of Dr. Kachikwu as the NNPC GMD in 2016, the President appointed him as the Chairman of the reconstituted Board of the NNPC in line with Section 3 of the NNPC Act. Therefore, the decision of Dr. Baru to by-pass the Chairman of the Board in the award of the contracts and appointment of NNPC staff cannot be justified either under the NNPC Act.”

    Falana contended that “since Dr. Kachukwu was not removed as the Chairman of the Board, the President ought not to have encouraged Dr. Baru to treat him with such pompous disdain and arrogance”.

    He argued that the impression given by Dr Baru that once the President was briefed with respect to the award of the contracts, that due process had been observed in the award of the $25 billion contracts in line with the PPA was misleading.

    He maintained that such a position was neither backed by the NNPC Act nor the PPA. He said the competent authorities that have the final say in the award of contracts and disposal of public assets under the current political dispensation are the Bureau of Public Procurement (BPP) and the National Council of Public Procurement (NCPP).

    “The NCPP is not chaired by the President, but by the Minister of Finance. The other members of the NCPP include some officials of the Federal Government and representatives of relevant professional bodies and civil society organisations.

    “Apart from constituting the NCPP and the BPP   the President has not been empowered to approve any contract whatsoever. In fact, there is no reference whatsoever to the Federal Executive Council in the entirety of 61 sections of the PPA. To that extent, the FEC presided over by the President cannot approve the award of contracts which is the exclusive duty of the NCPP and BPP.

    “Although the PPA was enacted in 2007, the President or the Federal Executive Council (FEC) has  been approving multi-billion dollar or naira contracts, albeit illegally.

    The activist lamented that the Buhari administration, which has loudly undertaken to fight corruption, has ignored calls from many civil society organisations to set up the NCPP.

    He said since neither the President nor the Federal Executive Council was competent  to approve the award of contracts under the PPA the claim of the NNPC GMD that the controversial contracts were approved by the President could not be justified under the PPA.

    To avoid a situation whereby the $25 billion contracts and others being awarded by the Buhari administration are annulled and set aside on the grounds that they were awarded by either the President or the FEC without any legal authority, Falana counseled  President Buhari to constitute the  NCPP without any further delay.

    “If this call is ignored, once again, the civil society anti-corruption bodies ought to approach the Federal High Court for a writ of mandamus to compel the President to inaugurate the NCPP,” he said.

    He also noted that apart from breaching the NNPC Act and PPA, the NNPC had conveniently ignored the National Extractive Industries Transparency Initiative Act and had refused to comply with the directive of the NEITI to remit $21.7 billion and N376 billion illegally withheld from the Federation Account.

    Though Dr. Kachukwu recently disclosed that the nation had lost $60 billion due, he noted that the NNPC has refused  to recover same by implementing the provisions of the Deep Offshore and Inland Basin Production Sharing Contracts Act and instead of directing the NNPC to recover and remit the huge fund  to the Federation Account, the Federal Government was busy piling up external loans.

    He also noted that the NNPC does not subject its budgets to the National Assembly for appropriation as stipulated by the Constitution and the Fiscal Responsibility Act.

    H recalled that shortly before proceeding on its annual vacation, the Senate disclosed that the NNPC and 33 other agencies of the Federal Government had failed to submit their 2017 budget to the National Assembly but that  the NNPC management ignored the disclosure knowing that the Senate would not pursue the matter.

    Falana contended that  Dr.Ibe Kachukwu owed it a duty to the country to react to the allegation of the management of the Nigerian National Petroleum Corporation (NNPC) that he engaged in the unilateral award of multibillion dollar contracts during his tenure as Group Managing Director (GMD).

    He remarked that even if the allegation of the NNPC GMD against the minister is true,  it cannot justify what he described as the reckless impunity that has characterized the management of the affairs of the NNPC since 1999.

    He contended however that the allegations and counter-allegations of Dr. Kachukwu and Dr. Baru over contract awards had reinforced his earlier call on President Muhammadu Buhari to relinquish the post of the Minister of Petroleum Resources and appoint a full-fledged minister to run and coordinate the affairs on the oil and gas industry in strict compliance with the law.

    He said the board of the NNPC should be reconstituted by reducing its present membership from nine to six persons as provided for by Section 1(2) of the NNPC Act.

  • Lawyer to Fayose: stop attacking Falana

    Lawyer to Fayose: stop attacking Falana

    Human rights lawyer and National Coordinator of Ekiti Redemption Group (ERG), Mr. Morakinyo Ogele, has warned Ekiti State Governor Ayo Fayose against attacking Lagos lawyer Femi Falana (SAN).

    Speaking with The Nation in Ado-Ekiti, the state capital, Ogele noted that Falana is “an eminent son of Ekiti who should not be pilloried by the governor of his home state but should be celebrated and appreciated for entrenchment of democracy in Nigeria”.

    The ERG coordinator was reacting to a comment the governor made last Thursday while appearing on Politics Today, a programme on Channels Television, where Fayose accused Falana of being among those behind the latest Economic and Financial Crimes (EFCC) investigation of his administration.

    Fayose said Falana, a Senior Advocate of Nigeria (SAN), was aggrieved by his 2003 governorship election loss when he was candidate of the National Conscience Party (NCP) and lost to him (Fayose), the Peoples Democratic Party (PDP) candidate.

    Ogele advised the governor to tell EFCC investigators how the bailout funds given to his administration to pay workers and pensioners were spent, rather than blame Falana for his tarvail.

    He said: “Falana’s personality and integrity cannot be called to question by anybody. He is one of those who fought for democracy being enjoyed by people like Fayose, who was nowhere when people like Falana were in the trenches.

    “Falana has not been accused of looting Ekiti or being a security risk. Fayose cannot compare himself with Falana because he (Falana) has been fighting for democracy, which earned him detention alongside the late Chief Gani Fawehinmi.’’

    “Falana cannot be aggrieved because of the 2003 election; the only thing Falana is craving for is that Ekiti should be ruled within the purview of our constitution. So, Fayose should stop insulting Falana.

    “Falana has earned himself various prominent awards in Nigeria, Africa and other parts of the world, for his persistent fight for the freedom of Nigerians, respect for human rights and good governance.

    “What Falana is saying is that Fayose should pay salaries and entitlements of workers and should account for all the funds received from the Federal Government on behalf of Ekiti people.”

     

  • Oyebode, Falana seek mass action against corruption

    Oyebode, Falana seek mass action against corruption

    Professor of International Law and Jurisprudence, Akin Oyebode  has said corruption has become a crime against humanity in the country.

    He also stated that Nigerians can now have hope in the anti-corruption war with the setting up of Justice Isa Ayo Salami led “ Monitoring Committee on Corruption Cases” set up by the Chief Justice of Nigeria (CJN), Walter Onnoghen.

    Oyebode spoke yesterday at a roundtable organised by Socio-Economic Rights and Accountability Project (SERAP) in collaboration with the National Endowment for Democracy (NED), and held at the Citigeight Hotel, Sheraton Opebi Link Road, Ikeja Lagos.

    The University of Lagos (UNILAG), Akoka, Lagos law lecturer who delivered paper on “Mobilizing the citizens to demand anti-corruption reforms and an end to impunity for grand corruption in Nigeria” however emphasised that “mass action by the citizens is urgently needed to put pressure on authorities to end impunity for grand corruption in the country.”

    Though he admitted that the county has a set of anti-corruption laws reflecting the will and intention of the government to battle the virus to the hilt.

    He pointed out that the efficacy of anti-corruption legislation coupled with judicial pronouncements,  conviction and sentencing of corrupt elements would require the complement of mass action and commitment arising from general awareness and resolve to collaborate with on-going efforts.  “Inevitably, government action in this regard must be undertaken for the anti-corruption struggle to bear fruit”, he stressed.

    According to him, the people must be made aware of the nexus between corruption by the political leadership and their niggardly circumstances.

    He contended that once the masses  realised that misappropriation of the nation’s resources by leaders at various levels leads to their impoverishment, their approval and support for all measures adopted to contain graft and unjust enrichment within the polity become pretty well assured.

    •Femi Falana

    “The people must be enlisted in the war against corruption. Nigerians should start anti-corruption clubs in schools, radio jingles should be put in place to fight corruption, carry placards, go outside, organize sit ins like SERAP is doing presently, Nigerians should be mobilised against corruption and now take their destiny in their hands,” he said.

    Oyebode decried the recent attempt by the National Assembly with the NGO bill intended to control, monitor and eventually muzzle Civil Society Organisations (CSOs) on the excuse that some CSOs are corrupt should not be allowed.

    “Cutting off the head is not the cure for headache, the bill is an overkill. If they cage organisations like SERAP, who will fight for the masses. The government do not want anybody to act as impediment to their thievery activities”, he stated.

    Activist lawyer Femi Falana (SAN) agreed with Prof. Oyebode on the need for churches, mosques and traditional rulers to stop honouring politicians without first ascertaining their source of wealth.

    According to Falana, “Religious leaders should stop confusing our people. Our churches and traditional rulers should stop praying for thieves. This is how low we have sunk.

    “Let our church stop conferring honours on criminals. Also our universities should be encouraged to join in the fight,” he said.

  • Senior lawyer to Falana on prison amnesty: you’re wrong

    Senior lawyer to Falana on prison amnesty: you’re wrong

    With much fanfare, glitz, blitz and bazaar, Mr. Falana also placed reliance on the authority of Iloegbunam vs. Iloegbunam (2001), and even made allusion to his arguments therein. In quoting the finding of Oguntade, JCA, however, Mr. Falana twisted the meaning of the dictum, which was meant to address the constitutional question raised by Chief Anah, SAN. Let me quote exactly the portion quoted by Mr. Falana: “There is power in the Chief Justice of the Federation or any of the chief judges of the states to order the release of persons detained in prison custody in the exercise of their power under section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act Cap 79 Laws of the Federation of Nigeria 1990 is not in doubt.

    “The exercise of that power by the Anambra Chief Judge would definitely constitute a different cause of action for the present respondents if they feel aggrieved by it.

    “And an action founded on the exercise of that power which action is challenging the authority of the chief judge is one that should be brought before the High Court of Anambra State by virtue of Section 272 of the 1999 Constitution.”

    A correct dissection of the above dictum is as follows: (a) a chief judge has power under Section 1(1) of the Criminal Justice (Release from Custody) (Special Provisions) Act, 1990 (not under the Constitution- as I have consistently argued) to release detained persons; (b) Chief Anah, SAN, wrongly challenged the constitutionality of that Act in that present appeal – he ought to have brought a fresh action in the High Court under Section 272 of the Constitution!

    How then would Mr. Falana claim in his rejoinder that “the Court of Appeal had upheld the constitutional validity of the Criminal Justice (Release from Custody) (Special Provisions) Act,” when that court starkly held that only a fresh action pursuant to the original jurisdiction of the High Court under Section 272 of the Constitution would enable such judicial pronouncement?

    Again, Mr. Falana relied on some foreign common law happenings to support his arguments, the first of which is the Writ of Petition (Civil) No. 406/2013, delivered by the Indian Supreme Court, sitting in a judicial (as opposed to an administrative) capacity! Mr. Falana inadvertently shot himself in the hip, by relying on this judicial decision, which supports my arguments right from the very beginning against administrative as opposed to judicial release of prisoners! Indeed, that court, constitutionally empaneled, sat under its original civil jurisdiction and entertained arguments from parties and even amicus curiae before making those orders!

    Mr. Falana also made reference to the situation in Pakistan, which unfortunately for him operates a parliamentary as opposed to a presidential system. May I remind Mr. Falana that Nigeria operates a presidential system, just like the United States (U.S.), hence presidential powers of pardon cannot be abridged by any enactment other than the Constitution itself. ‘Abridgement’ here includes enacting an Act like the Criminal Justice (Release from Custody) (Special Provisions) Act, in a manner that will make it compete with sections 175 and 212 of the 1999 Constitution.

    That was why the U.S. Chief Justice Burger held Schick vs. Reed, 419 US 256 (1974) at 266 that “the unbroken practice since 1790 compels the conclusion” that the power of the US President to grant pardon “flows from the Constitution alone, not from any legislative enactments,” concluding that such presidential powers “cannot be modified, abridged, or diminished by the congress.”

    In conclusion, and I hope this will satisfy Mr. Falana this time around, Section 1(1) of the Criminal Justice (Release from custody) (Special Provisions) Act, being in contradiction or at least competition with sections 35(4), 175 and 212 of the 1999 Constitution as amended, is null and void. The Honourable Chief Justice of Nigeria and the various states’ chief judges have no constitutionally-recognised or cognisable power to conduct prison amnesty.

    • Sebastine Hon is a Senior Advocate of Nigeria (SAN)