Buhari’s Certificate Saga versus Atiku’s Corruption Toga: Time to Listen to George Santayana is Now (a Legal Opinion, by Sylvester Udemezue)

Ebun-Olu Adegboruwa is an inimitable rule of law advocate, human rights crusader and distinguished constitutional lawyer in Nigeria. But, one major thing that stands Mr Adegboruwa out among his ilk is his pluckiness and unswerving tenacity to stand up to call a spade by its name, at all material times, no matter whose ox is gored. I have read a legal opinion, credited to the fiery legal luminary, but which came off as a Press Release dated 27 October 2018, and titled, Why Buhari doesn’t need WAEC certificate to contest in 2019.”(see http://dailypost.ng/2018/10/27/buhari-doesnt-need-waec-certificate-contest-2019-adegboruwa/). After having cited and discussed the provisions of sections 131 and 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Mr Adegboruwa had gone ahead to draw the following conclusion:

“So, it is only a moral burden, for the President, if he claimed to have attended any secondary school, to produce the certificate of that school, to the satisfaction of Nigerians, but that has nothing to do with his legal right to contest election as President. The debate is thus unnecessary. Let’s move on to other issues.”

I completely agree with Mr Adegboruwa.Aside from the constitutional provisions to which my learned friend has copiously referred, there are a plethora of other legally justifiable reasons why I believe the issue of President Buhari’s non-production of his WAEC Certificate has become akin to a hatchet that is not of any use in the farm, and as such must be buried and forgotten.

A breakdown of the definition of “School Certificate or its equivalent” as provided in section 318 (1) of the 1999 Constitution shows that possession of School Certificate is unnecessary if a candidate in an election possesses “its equivalent.” The Premium Times newspaper recently reported that the Government College, Katsina, (formerly Provincial Secondary School), which Muhammadu Buhari had allegedly graduated from in 1961, had released Mr. Buhari’s secondary school certificate examination results confirming Mr. Buhari’s claims that he undertook the University of Cambridge West African School Certificate Examinations. PREMIUM TIMES displayed a computer printout from Cambridge University as well as a statement of result, signed by the current principal of Katsina College, and dated January 21, 2015. (see https://theeagleonline.com.ng/katsina-college-releases-buharis-wasc-result-scanned-copy/)

Constitutional requirements relating to production of a WASC/WAEC Certificate is useful but only to establish that the affected candidate has attended a secondary school or sat for the WASC/WAEC/NECO. So, where such Certificate is not available, a copy of the Certificate or Statement of Result in the candidate’s possession or a CTC of either (issued by relevant authorities) could come in to save the situation. The report by Premium Times clearly displays a scan CTC of Mr Buhari’s WASC Statement of Result. Section 89 (c) and (e) of the Evidence Act, 2011(Nigeria) provides that “secondary evidence may be given of the existence, condition, or contents of a document when – the original copy has been destroyed or lost and in the latter case all possible search has been made for it, or the original is a public document within the meaning of section 102”of the Evidence Act. Section 90 (1) (a)of the same Act then provides that where loss or destruction is the case, “any secondary evidence of the contents of the document is admissible.” I respectfully believe that the CTC of the Statement of Result of Mr Buhari can come under section 90 (1) (a) of the Evidence Act, and as such has met the provisions of section 318 (1) of the Constitution requiring evidence of “education up to Secondary School Certificate Level.”

Submission of a genuine WASC Statement of Result to INEC has been judicially recognised in Nigeria as evidence that the affected candidate has met the relevant constitutional requirements for qualification in this respect. See the case of ANPP v INEC& Ors [2010] 13 NWLR (pt. 1212) 549, However,where the document/Certificate /Statement submitted is found to be fake, the affected candidate stands disqualified pursuant to section137 (1) (j) of theConstitution of the Federal Republic of Nigeria, 1999 which provides that “a person shall not be qualified for election to the office of President if he has presented a forged Certificate to the Independent National Electoral Commission.”

I agree that if PMB has said (on oath) that he has a WASC Certificate, then he has a burden to produce the Certificate. But, it must be noted that this is not the same as the legal question as to whether or not he is qualified to contest in line with the combined effects of sections 131 (d) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999. I am of the view that, as my learned senior (Mr Adegboruwa has submitted), Mr Buhari is so qualified. I need however to add that we must be careful about this Certificate saga to avoid a repeat of the smear campaigns of 2015; some persons were busy then castigating Mr. Buhari for not having a School Certificate. The pointless scathing attacks against him were so intense that many more people started getting attracted to his cause out of empathy. Some persons who perhaps had not bought into his candidacy started turning around to love him, so much so that this became a major factor that ultimately led to his landslide victory in the 2015 presidential elections. I therefore humbly advise that, as the 2019 elections fast approach, politicians, their supporters, allies and fans must learn to focus on material issues that pertain to governance, employment, economy, education, agriculture, security, provision of basic infrastructure, and the general well-being and welfare of Nigerians; they must take attention off mundane issues which have little or nothing whatsoever to do with performance or non-performance in public office.

Further, I think 2019 would make it the fifth time Mr. Buhari is contesting elections into the Presidency of the Federal Republic of Nigeria —- 2003, 2007, 2011, 2015 and 2019.  Are those who now complain about his non-production of his WAEC Certificate not guilty of lashes and acquiescence? “Delay defeats equity”is a variant of the maxim that “equity aids the vigilant, not the indolent.”Where were these Certificate wailers in 2003, 2007, 2011 and 2015?  Or, was Mr Buhari qualified then, but not now?

Aside from the aforesaid, it amounts to an insult to/on Nigeria for us to be representing a retired Nigerian Army General as if he didn’t go to school. I think by doing such, we are wounding the reputation of Nigeria and the integrity of its armed forces. Yes! And when we wash our dirty linens in public, we should not be surprised when foreigners begin to treat our armed forces and its officers and men with superciliousness and condescension! We teach others how to treat us. If we lower ourselves before outsiders, they treat us like trash.

What is more? Mr Buhari has occupied some of the highest offices any Nigerian can aspire to in Nigeria:

  • The military Governor of the North-Eastern State: 1975-1976;
  • The Federal Commissioner (position now called Minister) for Petroleum and Natural Resources: 1976-1978;
  • The pioneer Chairman of the Nigerian National Petroleum Corporation: 1977-1978;
  • Held the position of General Officer Commanding, in the Nigerian Army: 1981-1983;
  • The Military Head of State and Government of Nigeria: 1984-1985;
  • The democratically elected President & Commander in Chief of the Armed Forces of the Federal Republic of Nigeria; 2015 to date.

Looking at the various positions and offices he has held, including having occupied the office of President and Commander in Chief for about five (5) years, one cannot but ask, “If he is not qualified to run for the presidency, who else in Nigeria is qualified?” The truth is, from whichever angle one looks at it, Mr Buhari has met the requirements of the Constitution as they relate to eligibility to stand for elections in Nigeria.

Now, let us talk about his military trainings and various special courses undertaken by him as a serviceman. Mr Buhariis reported to have undertaken the following course and trainings while he was in military service:

(Retrieved from: https://en.wikipedia.org/wiki/Muhammadu_Buhari)

Now, if these trainings and special courses do not (each or altogether) rank above the WASC Certificate, which is my humble view, then they should at least be taken to be sufficient to constitute the “equivalent” of the WASC and as such to qualify Mr. Buhari to contest any political office in Nigeria.

One other thing about section 318 (1), as cited Mr Adegboruwa, is that a person who did not even attend any secondary school at all and therefore did not sit for WASC/WAEC/NECO may nonetheless be qualified contest any election in Nigeria if he shows that he (1) possesses the Primary School Leaving Certificate ANDeither (a) has been a public service or (b) has attended courses and training in institutions or (c) is able to read, write and communicate and understand the English Language. For Mr Buhari to have gained an admission into a Provincial Secondary School, Katsina,as he did, he must have graduated from a Primary School.

What is more? The Constitution gives the INEC the exclusive powers to declare a candidate eligible if the candidate possesses “any other qualification acceptable to INEC.” Accordingly, even if Mr Buhari does not have a WASC/WAEC Certificate, did not attend any secondary school, does not possess the Primary School Leaving Certificate and did not attend any primary school, INEC could still decide to declare him qualified to contest on grounds that he possesses any other qualification which INEC considers acceptable. The Constitution does not define the scope or type of qualification that may be acceptable to INEC for this purpose. So, in such a case, NO other Nigerian, and not even a court of law, has any locus to question the decision of the INEC to declare the affected candidate eligible if INEC does so because it (INEC) believes that the candidate possesses such other acceptable qualification. The subjective test is applied here!

I had have earlier spoken about issues as this when Osun State’s Adeleke and his certificate first came up. We saw how campaign of calumny against Adeleke based of his “no-certificate” and “dancing” status had helped to sway voters in his favour against his major opponent in the 2018 gubernatorial elections in Osun State. This was later to repeat itself during the August 31, 2018 APC Governorship primaries in Lagos State. An aspirant had told the world at a press conference that his opponent had previously been (1) arrested and detained in the USA for being in possession of fake currency; and also (2) was later admitted and rehabilitated at Gbagada General Hospital, Lagos, for some “mental illness.” As a result of this accusation, the accuser lost any remaining goodwill, sympathy and support he had enjoyed among majority of APC Lagosians. He was to go on to lose the gubernatorial primary election in its aftermath and not even his later allegations of rigging or manipulation could move anyone because he was already disqualified in the minds of many who felt it was improper for him to have used his opponent’s medical conditions (if any) against his opponent. All in all, we need to learn that when in an election you attack your opponents over frivolous or inconsequential matters, you indirectly work against yourself and your interests, because such moves are usually bound to backfire at the end.

Similarly, we must put a stop to the now rampant media trialof alleged “corrupt” persons in Nigeria. A situation in which, without conviction or pronouncements by any court of law, we begin to present our citizens as either corrupt or as criminals, is not healthy for the nation. By indulging in such, we are telling the outside world that Nigeria and Nigerians are not safe to do business with. The obvious consequence is that inflow of foreign investment would shrink as investors are scared to come in, seeing that most Nigerians are said to be corrupt. Who wants to do business with a “corrupt” country? I have also heard some people pushing and imposing the corruption “toga” upon Alhaji Atiku Abubakar as a political weapon to dissuade his supporters and render his candidature unsellable in the 2019 presidential elections, even when we know he currently does not have any pending criminal/corruption charge anywhere in Nigeria or elsewhere. I think the only option available to those who label him “corrupt” is to drag him or cause him to be dragged before a competent court for proper criminal prosecution in order to determine his actual status on the corruption index. If we won’t follow due process to establish his guilt (if any), then we must cease persecuting and castigating him upon allegations which are not yet proven before any court. Just as the needless campaign of calumny against PMB in 2015 had played a great role in ensuring his victory in the polls, if we do not immediately discontinue this hateful, legally unsubstantiated, campaign against opponents, such might backfire, as happened in 2015.

In the celebrated case of Rt. Hon. Rotimi Chibuike Amaechi v. Independent National Electoral Commission (2008) 5 NWLR (Pt 1080),the Peoples’ Democratic Party (PDP) had submitted Hon Chibuike Amaechi’s name to INEC as its Governorship candidate in Rivers State for the 2007 elections, and later substituted Omehia’s name for Amaechi’s on the basis that AMaechi was indictedfor corruptionby the Economic & Financial Crimes Commission (EFCC). No court of law had however made an order disqualifying Amaechi from contesting the Governorship elections. Hon Amaechi had challenged his substitution up to the Supreme Court of Nigeria, which in its lead judgment, took time to denounce in very strong terms any form of imposition of any penalty or disqualification, persecution other punishment for alleged embezzlement or fraud solely on the basis of an indictment for corruption, contrary to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.  Says the Apex Court (perGeorge Adesola Oguntade. J.S.C):

“I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power.   See Sokefun v. Akinyemi [1980] 5-7 S.C. (Reprint) 1; [1981] 1 NCLR 135; Garba v. University of Maiduguri [19861 1 NWLR (Pt. 18) 550. An indictment is no more than an accusation:   In Sokefun v. Akinyemi (supra) this court per Fatayi-Williams, CJN said at page 146 as follows: It seems to me that once a person is accused of a criminal offence, he must be tried in a court of law where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. …The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever….It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law….It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences.”

This is where reference to the American philosopher, essayist, poet, and novelist, GEORGE SANTAYANA (1863-1952) becomes apposite. Writing on page 284 of “Reason in Common Sense,”which is Volume 1 of his book, The Life of Reason: The Phases of Human Progress, George Santayana had warned that “those who cannot remember the past are condemned to repeat it.”From its original form, and because of its prominence, the declaration had produced many paraphrases and variants, including that: (1) those who cannot learn from history are doomed to repeat it; (2) those who fail to learn from the mistakes of their predecessors are destined to repeat them; and (3) those who do not know history’s mistakes are doomed to repeat them. It is our responsibility to live out the lessons of history by paying heed to George Santayana’s wise counsel. Politicians who dwell on frivolous matters usually end up campaigning for and winning empathy for their opponents. It happened in 2015. It happened in Osun State in 2018. It happened in Lagos on 31 August 2018. It might happen again unless we learn to remove the monkey’s hand from the soup before it turns to human hands.

Our problem in not hearing is not that we do not have ears; it is just that most of us do not use them! This could be a part of the reason Craig D. Lounsbrough, Licensed Professional Counsellor in the State of Colorado, USA, once queried: “Do we forget, or, is it that we just refuse to remember?” Anyway, it’s our choice to make. But we must be prepared to live with the choice we decide to make. One cannot blame anyone else but oneself for the choices one makes. All great choices are made with great risks. You must decide for yourself if the consequences are worth the action you are willing to take. (See Cathlin Shahriary in Lanthe, published in2015).

Note:This piece is by NO mean an endorsement or promotion of any candidate in any election in Nigeria. The writer is not a politician, but only interested in the promotion of rule of law in a constitutional democracy.

God bless Nigeria!
Respectfully,
SYLVESTER UDEMEZUE

(28/10/2018)

 

Has the Recent Decision of the Supreme Court in Dauda v. FRN Changed the Criminal Justice Administration System in Nigeria? (A Legal Opinion by Sylvester Udemezue)

The decision of the Supreme Court of Nigeria in the recent case of Dauda v. Federal Republic of Nigeria (FRN) (2018) 10 NWLR (Pt.1626) 169, 183 E -F (2018) LPELR-43637(SC), has generated so much debate and divergent opinions and interpretations. While some lawyers and politicians believe that it has substantially changed the coloration and established position of our criminal justice system, others believe it has merely reinforced and restated the position of the law, and did not upstage or overturn it. Same Judgment, different interpretations. It therefore becomes expedient for one to try and see what the Apex Court has decided. Therein lies the necessity and relevance of this paper.

In the case under consideration, the Supreme Court of Nigeria is reported to have declared that “the burden lies on an accused person to explain properties he acquired which are disproportionate to his known legitimate earnings.” Some lawyers have interpreted this declaration to mean that “once it is shown that one has much more than one should have had, then it is for one to explain,” further implying that an accused person now has the burden to prove his innocence, instead of the evidential burden of a fact within his knowledge as us usually the case; or else he would be thrown into jail.

With due respect, that’s not what the judgement has said. Besides, I do not think the judgement has changed the adversarial or accusatorial nature of Nigeria’s criminal justice system as entrenched in the provisions of the Constitution of the Federal Republic of Nigeria, 1999, dealing with the presumption of innocence of an accused person in criminal proceedings in Nigeria. The principle is not anything new, that “one may be held to give an account if one’s amount or source of income/wealth is suspicious.” The Money Laundering (Prohibition) Act (Nigeria) is littered with provisions in this respect. In my opinion, what the apex court has done in Dauda v. Federal Republic of Nigeria (Supra) was merely to restate the extant position of law. Now, however, it is noticed that some politicians and lawyers are trying to twist this clearly unambiguous judgement with a view to achieving some ends unconnected to the judgment and obviously unknown to law — perhaps that of wrestling rule of law and due process to the ground, to make way for the possible enthronement of individual predilections and the personal whims and caprices of leaders and prosecutors as the major or sole determinants of criminal guilt in Nigeria. This in mind, I have some questions for our colleagues, especially those who are parading this Dauda v. FRN with the sole aim of importing into the judgment, what is not there in our laws:

Has the judgment in Dauda v. FRN upturned section 35 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which upholds an accused person’s right to be presumed innocent until his guilt is established beyond reasonable doubt? Has the judgment changed our system of criminal justice from the extant adversarial and accusatorial to the inquisitorial or inquisitional? As we all know, the major object of the adversarial processes is to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. This is why the accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured.

Has the case changed the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that insist that an accused person must not be made to suffer any infraction to/of his personal liberty unless and until his guilt is established through due process before a court of law? Note for example section 35. (1) (a) and (b) of Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended): “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;” Has the case of Dauda v. FRN altered or overruled the reasoning, ratio and legal principles established in clear terms by the Supreme Court in the case of Chibuike Amaechi v. INEC (2008) 5 NWLR (Pt 1080) where the Apex Court (per George Adesola Oguntade, J.S.C) had declared as follows?

“I say again that convictions for offences and imposition of penalties and     punishments are matters appertaining exclusively to judicial power…. An indictment is no more than an accusation… once a person is accused of a criminal offence, he must be tried in a court of law or other tribunal where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. …The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever…. It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law….It is simply impermissible under a civilised system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. Even during the trial the burden to prove his guilt beyond reasonable doubt is on the accuser Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences to hold otherwise.”

Has Dauda v. FRN altered the provisions of Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 to the effect that “no one may be arbitrarily deprived of this right?” Or, has the case erased the effect of Article 7(1)(b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 that “every individual shall have the right to have his cause heard without prejudice? Does this not comprise, as Article 7 states, the right to be presumed innocent until proven guilty by a competent court or tribunal? From all the aforesaid, it is clear that the case of Dauda v. FRN, though a good decision, has not changed anything in our laws, neither has it introduced anything new. Accordingly, we need to be wary of the way we twist some judgements of courts and sections of laws in Nigeria to suit our vested interests. We must realize that the rule of law is for all and for no one particular.

The process of administration of criminal justice under a civilized constitutional democracy operating the adversarial criminal justice system requires as a matter of necessity that everything is and must be done to ensure the safety of citizens and that no one is punished or made to suffer unjustly or prematurely. Further, a major part of the cardinal duties of the state or prosecutor in criminal proceedings as reinforced in the case of Enahoro v. The State (1965) 1 All NLR 125 is to be just, impartial and fair and to not persecute or victimize accused persons to achieve illegal ends. The prosecutor has an added duty to refrain from trying to obtain conviction at all cost. Hence in R. Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court (UK) had warned that “the business of the state counsel is fairly and impartially to exhibit all the facts to the jury. The crown has no interest in procuring a conviction but that the right person be convicted.” Put differently, the function of the state or the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; it is rather to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial (Hon Justice Williams Orville Douglas). Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (Hon Justice Benjamin Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

The import of all these is that punishment for breach of any law must be done in line with procedures and processes set down by law. Therein lies the indispensability of the supremacy and applicability of rule of law. Anything short of this takes us back to the age of “might is right,” which would usher in an end to constitutionalism and decency, civility and order. It might as well be an end to the existence of an organized state. Consequently, any attempt to interpret the judgement in Dauda v. FRN to mean that it is now the accused person that has the statutory burden/duty of proving his innocence (rather than vice versa) would leave us, one and all, at the mercy of the state and the individual whims of the state leaders, and, believe me, equally leave the leaders at the mercy of the led. Because what’s sauce for the goose is sauce also for the gander. If a leader can do to any citizen whatever he or she (the leader) likes, likewise, citizens reserve the right to do to the leader whatever they (the citizens) wish, under the same guise. This is what had informed the following warning by Sir Thomas Moore: “if you cut all the Laws down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Accordingly, the greatest and safest way to civility and progress for any society is for the society to embrace rule of law as its inviolable creed, to which both the leaders and the led are subject. Any action of the people, the leaders and anyone, however well intentioned, if it runs contrary to the dictates of rule of law is an anathema and constitutes a grave threat to the foundation of society, being an invitation to chaos. A society that ignores rule of law welcomes rule by arbitrariness and the subjective predilections of people in authority. Rule of law is the basis for any functional democracy. And without rule of law in a democracy, chaos becomes the norm. As Mahmoud Abbas once declared, we cannot build the foundations of a state without rule of law. Perhaps, the wise words of one-time American army general, statesman and 34th President of the USA, Dwight D. Eisenhower (1890-1969) would help to drive this point securely home: “the clearest way to show what the rule of law means to us in our everyday life is to recall what could happen when there is no rule of law.”

Finally, on this, the rule of law establishes principles that constrain the power of governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules. This is why Obaseki, JSC, stated in the Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.”

I would like to conclude this opinion by drawing, with full endorsement, from a comment made by my respected learned senior and friend, Major Ben Aburime (rtd.) on the actual import of the recent decision in Dauda v. FRN. Says he:

 

“The SC has not overturned the constitutional provision on presumption of innocence or changed the onus, burden and standard of proof in our criminal jurisprudence. What it has decided is that once the prosecution has proved its case, the defendant has the evidential burden to negative it. The standard of that burden is minimal and once introduced, the duty to prove otherwise reverts back to the prosecution. Let’s get it clear that the SC can only interpret our laws as they stand, NOT change it. The burden of proving a case beyond reasonable doubt is on the prosecution, and it never changes. That burden and onus is different from the evidential burden demanded of the defendant in cases such as this. It is not good law to expect a defendant to prove his innocence, instead of the prosecution proving his culpability through known orthodox means….”

While it is long established that evidential burden may shift temporarily, where necessary, yet the legal burden (which is on the State/prosecution) to prove the guilt of the accused beyond reasonable doubt does not and will never shift, even if or even where the accused remains mute or refuses to say anything at all in his defence. This is the position that is elucidated upon by respected Major ABURIME in the comment I referred to with unhesitant approval. What more can I say on this? It is a truism already that evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged does not and cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence (see Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408; (1975) LPELR-8042(SC). This position is reinforced in the case of Samuel Bozin v. The State (1985) 7 SC 450 where the supreme court had declared that “suspicion, however grave does not amount to legal proof. Finally, in another Supreme Court case, Osarodion Okoro v. The Sate (1988) SC (Part II) 83, it was held that “the protection of the accused person who is presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.”

However, it is unfortunate that all this notwithstanding, all one still hears in Nigeria is pretty much of people’s calling out to punish the guilty with only very few concerned to clear the innocent. This becomes much more worrisome when such emanates from legal practitioners who are expected themselves to be custodians and advocates of rule of law and due process, irrespective of their political or sectional leanings. The lawyer is not just a mere citizen, but a minister of justice, a member of an honourable, learned profession and as such is expected by Rule 1 of the Rules of Professional Conduct for Legal Practitioners in Nigeria (2007) to always to uphold and observe the rule of law and to promote and foster the cause of justice. By the very special nature of their calling, lawyers have an added responsibility to educate the public on the core demands of law of evidence, due process, and rule of law. Specifically, the lawyer has a duty to accentuate the difference between a mere “accusation/speculation,” and verified information or statement. These duties and functions lay on the lawyer a variety of legal and moral obligations towards the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the awesome power of the state and other interests in society (Balin Hazarika: 2012).

If Nigerian lawyers for whatever reasons fail in these core duties, our hope of building, sustaining and advancing true democracy and constitutionalism might become a mirage.

Respectfully,

Sylvester Udemezue (udems)

udemsyl@hotmail.com.

 

 

KAY BELLO VERSUS NLS: WHEN A DEFENDANT IS NOT GUILTY OF CONTEMPT OF COURT (A personal legal opinion)

Gentlemen, it is a burden I have to bear here with serenity, on this WhatsApp platform, to which I belong, that any time the Law School or vocational legal education, especially in the Nigerian Law School is up for discussion, some persons expect me to shed light on some issues, since I happen to be an insider who also finds himself as a member of this forum where matters and discussions about law, legal profession, legal education, legal system and the judicature usually take the front burner. Some people here expect me to react to any and everything affecting the institution with which I work. Indeed, some have specifically called me out on this Kay Bello matter, on this platform – “LEGAL MINDS.”  However, I consider myself to be in a bit of a fix, a huge dilemma, for three major reasons:

  • I am not the spokesperson of the Council of Legal Education (CLE), the defendant in the suit, and
  • I am afraid to say anything, as some, if not many, may see me as an interested person in the matter; hence, any view I offer, however OBJECTIVE or FAIR-MINDED, may be seen as that of a person who has some interest to serve.

Yet, I recognize the need to call a spade by its true name. Aside from this,  when I look at some reactions from some people on the entire scenario, and how strongly they feel about the matter, and I specifically having read most news reports on the alleged ex parte court order, particularly an anonymous report on www.thenigerialawyer.com, on 14 August 2017, the contents of which are devoted solely to denouncing the CLE, condemning the Nigerian Law School, and even deprecating Nigerian Law School teachers, all for for what the report described as their “disobedience of a court order,” I feel myself that I should, again, offer a STRICTLY PERSONAL legal OPINION (to which I suppose I am entitled by virtue of the provisions of Rule 42 of the Rules of Professional Conduct (RPC), 2007, among other rules of law, etc.) with a view to separating facts from fiction and clearing doubts that may mislead the innocent public. Meanwhile, Sahara reporters had earlier, on 11 August 2017, reported that Nigerian Law School shunned a court order: see http://saharareporters.com/2017/08/11/nigerian-law-school-shuns-court-order-prevents-kayode-bello-registering-final-examination.

I have now seen the ex parte order of the Federal High Court in Suit No: FHC/ABJ/CS/717/2017, where the applicant, Kayode Bello, had prayed the Court for certain reliefs vide a Motion Ex Parte dated and filed the on August 09, 2017. As widely reported in the online news media, from 11 August 2017, up to 14 August 2017, the Federal High Court, Abuja, presided over by his Lordship, Hon Justice Dimgba Igwe, after hearing the Motion Ex Parte, had ordered as follows:

  • that suit be heard during the 2017 vacation of Federal High Court;
  • that the applicant be permitted (by the Nigerian law school) to write his final Bar examination at the Nigerian Law School, Abuja Campus as a legally admitted Law School Student pending the hearing of the originating motion on notice in the suit; and
  • that the matter stood adjourned to the 18 August 2017 for hearing.

 What is worrisome, and which makes this personal legal opinion necessary, is the said news report published on www.thenigerialawyer.com, on Monday, August 14, 2017, titled “KAYODE BELLO VERSU NIGERIAN LAW SCHOOL: COUNCIL OD LEGAL EDUCATION’S FAILURE TO OBEY COURT ORDE AMOUNTS TO CONTEMPT.” While this present writer`s intentions herein are not to do a rejoinder to that news report, this writer would like to start by reproducing a portion of that online news report, as it is necessary to clearly illustrate the point I have set out to make here:

 “it is only expected that the applicant, Kayode Bello be allowed to write his exam in total obedience of the court order. But contrary to what is reasonably expected, the Council of Legal Education disobeyed the court order by refusing the applicant to write his bar examination. This is not only bad, but incurably bad because this contempt is committed not by any other body but the Council of Legal Education…. it is only expected that it live by example. But this is not the case as the Council openly disobeyed the order given by the court. The question then is: What is the council of legal education teaching the students of the Nigerian Law School? What precedent is it leaving behind for the public at large? How can a body that ought to teach the rule of law fail to practice what it actually professes to preach every single day? It is a very big shame. It is a shame that the Council with all its wisdom could fall into this little test.” (see http://thenigerialawyer.com/kayode-bello-vs-nigerian-law-school-council-of-legal-educations-failure-to-obey-court-order-amounts-to-contempt/, accessed on 14/08/2017).

As seen above, the said report drips with anger and deep repulsion against both the Nigerian Law school and its parent body, the Council of Legal Education for allegedly “disobeying” a court order. Indeed, the reports ends its vituperations on the following sad note:

This is not about Kayode Bello, IT IS ABOUT SAVING THE LEGAL PROFESSION FROM THOSE WHO CANNOT STAND THE TEST OF THE LAW THEY TEACH”

Let me now state categorically that I have read all available reports, I have seen the order, I have weighed all I have read and heard and seen against provisions of extant Nigerian Laws on contempt and disobedience of court orders, and I have come to the conclusion that as today, August 14, 2017, neither the Nigerian Law School, its Lecturers, nor the Council of Legal Education has violated any court order in respect of the Kayode Bello matter. Kindly let me explain and illustrate this point. Mr Kayode Bello was expelled by the CLE, sometime during the third week of July 2017, or thereabouts, on allegations of some misconduct (this is not the focus of this opinion). Thereafter, Bar Final Exams for the 2016/2017 academic session began on 29 July 2017. These examinations usually last six days. One paper (the first) was taken on 29 July 2017. The next paper which is the SECOND PAPER is scheduled to be taken on Tuesday, 15 August 2017. The exams would then continue every day until August 19, 2017 when the final paper (Professional Ethics & Skills) would be taken.

Now, the ex parte order said to have directed Mr Kayode Bello to join in sitting for the examinations was reportedly given on August 09, 2017 following a Motion ex parte dated and filed the same date (August 09, 2017). Since the date of the next examination paper/subject since the grant of the ex parte order does not and would not come up until Tuesday, 15 August 2017, which date has not even arrived, what is the basis for the news report on Friday (11 August 2017) that the School had “shunned” the court order? And where does the report on Monday (14 August 2017) accusing the Law School and the CLE of being lawless and so guilty of contempt derive its justification or foundation? Or, is it that some people are confused as to what act, conduct or omission could amount to contempt of court. Generally, contempt of court is said to be committed when there has been a willful disobedience to, or disregard of, a court order or there is any other form of misconduct in the presence of a court; indeed, any action that interferes with a judge’s ability to administer justice or that insults the dignity of the court is contempt. See also Atake v. AG, Federation (1982) 11 S.C 175; and Agbachom v. The State (1970) 1 All NLR 69.

From all indications, therefore, and as far as the said court order is concerned, the Council of Legal Education has not violated nor disobeyed any court order, and as such could not be said to have become guilty of any contempt of court. To the best of my knowledge, and honest Nigerian Law School is a law-abiding institution which not only lives up to expectation in the professional, vocational training of aspirants to the Nigerian Bar, but also respects law, the law courts and the entire legal and justice system of Nigeria and beyond.

Accordingly, I humbly suggest that we, especially legal practitioners, should be cautious in reporting sensitive matters bothering on the profession, so as to prevent a situation in which we, directly or indirectly incite, encourage, aid or condone acts, conducts or omissions capable of tarnishing the image of the legal profession in Nigeria and bringing the same to disrepute. These lawyers who indulge in rumormongering and spread of falsehood must be reminded that legal education is inseparable from the legal profession; hence, whatever affects the former would definitely affect the latter— if not now, then certainly later. If we think we can pull down Nigerian Law School without dragging the profession down with it, we had better think twice. The sad truth is becoming more and more apparent; our profession has seen a steady decline by casting aside established traditions and canons of professional ethics that evolved over centuries. Hence the need to be a firm in enforcing rules of ethics at the Law School. All hands need to be on deck, to promote and preserve legal education and the profession of law in Nigeria. One sure way to begin this crusade is by supporting Nigerian Law School in its current, concerted drive to ensure that the concept of “fit and proper” as prescribed by the Council [pursuant to its powers under the Legal Education (Consolidation) Act] and upheld in the case of Okonjo v. Council of Legal Education FCA/L16/78 delivered on March 12 1979, 1979 Digest of Appeal Cases (DAC) 28), is maintained, strengthened and firmly enforced on aspirants to the bar with a view to ensuring that only persons deserving of membership of a noble, highly esteemed profession find their names on the Roll. Council deserves the supports of all and sundry, because legal a profession, lacking in ethics, cannot withstand the hassles, r igors and compressions of a complex society such as ours. In answer to a question he posed for himself thus, “why is ethics important to legal education and the practice and profession of law?” Peter MacFarlane, writing on the topic, “THE IMPORTANCE OF ETHICS AND THE APPLICATION OF ETHICAL PRINCIPLES TO THE LEGAL PROFESSION” in the Journal of South Pacific Law, had stated as follows:

“First, because lawyers are integral to the working-out of the law and the Rule of Law itself is founded on principles of justice, fairness and equity. If lawyers do not adhere and promote these ethical principles, then the law will fall into disrepute and people will resort to alternative means of resolving conflict. The Rule of Law will fail with a rise of public discontent. Second, lawyers are professionals. This concept conveys the notion that issues of ethical responsibility and duty are an inherent part of the legal profession. It has been said that a profession’s most valuable asset is its collective reputation and the confidence which that inspires. The legal profession especially must have the confidence of the community.”

Also, writing on the subject, “THE ROLE OF THE LAW SCHOOL IN THE TEACHING OF LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY,” in the Cleveland State Law Review, Vol 29:377, page 378, as published by EngagedScholarship@CSU, in 1980, WARREN E. BURGER, a former Chief Justice of the United States, had this to say:

“Every law school has a profound duty-and a unique opportunity-to inculcate principles of professional ethics and standards in its students. This duty should permeate the entire educational experience beginning with the first hour of the first day in law school. The failure to do this is, perhaps, even more serious than the failure to relate legal theory to practice. “

It is thus seen that the profession of law is a profession of ethics, because aspirants to the bar and lawyers alike have certain obligations, which are generally articulated in a code of ethics or rules of practice and conduct, which must be maintained in order for the profession to prosper. Law is a great profession but it is not an easy one; it is one in which one has to meet and overcome many hurdles in order to gain entry— bar examination, ethical (code of) conduct, skills as shown in externship and portfolio assessment and even table manners and attendance at classes/lectures. Everything is taken into consideration. Bearing this in mind, my advice to those who wish to go (or are used to going) to the press on issues relating to legal education in Nigeria, but do not possess adequate knowledge of the goings-on in the Law School, and the intricate nature of vocational legal education, should do well to always ask first to be properly guided so as to be better informed, instead of moving about and peddling unsubstantiated and unsustainable stories about things that are not, and never were. As pointed by Evan Chesler, the Chairman of Cravath, Swaine & Moore LLP, based in New York, while emphasizing the importance of good judgment to the practice of law, “part of being a good lawyer is knowing when to keep your mouth shut” about things about which you know nothing.”

Respectfully,

SYLVESTER UDEMEZUE

(14/August/2017)

KAY BELLO VERSUS NLS: WHY LAWYERS SHOULD NOT INCITE OR SUPPORT CONDUCTS CALCULATED TO DESTROY THE NOBLE PROFESSION OF LAW IN NIGERIA (a personal legal opinion by Sylvester Udemezue)

Regarding whether or not there was a “court order” or whether an “order” has been “served” on the Council or the Law School, I cannot comment because I AM NOT AWARE OF ANY SUCH ORDER AND I AM NOT THE SCHOOL’s SPOKESPERSON and I AM NOT IN THE ABUJA HEADQUARTERS. However, I need to point out that the bar final exams for the 2016/2017 academic session commenced on 29 July 2017. Have we seen this “order” reportedly issued on 9 August 2017?  I had suggested on this platform that we should first make efforts to see the said “court order” and check its contents before passing a judgment on the School or the CLE, because this is a very sensitive matter; it touches on the foundation of legal education and our law profession as they pertain to the core principle of “FIT AND PROPER.” In my humble, PERSONAL, opinion, offered here respectfully, the only reasonable step any court of law that has (if any has) been approached on the matter should take is to first order service of the originating processes on the defendant and thereafter afford the defendant an opportunity of being heard before making or refusing any mandatory or prohibitory order on the matter. It is trite that a court cannot stop a COMPLETED ACT. If the affected gentleman had truly gone to court, then the question that was obviously before the Court would be whether his expulsion was proper or improper, lawful or unlawful, and accordingly whether it should stand or be set aside. The fact therefore remains that as at August 09, 2017 when the court EX PARTE order (directing him to go and join ongoing Law School exams) was said to have been made, Mr Kay Bello stood expelled and as such WAS NOT (at least for now) a student of the Nigerian Law School, pending the hearing and determination of the said suit.

Yes, as we read in news reports, Mr Kay Bello did not agree that his expulsion was proper, which was why he went to court to challenge it; nonetheless, the fact that he had gone to court to challenge the expulsion is sufficient evidence of his acceptance of the fact that he was actually expelled. The act of expulsion was therefore COMPLETE in July 2017. In view of the above, I respectfully believe the right thing to do at the ex parte stage of this case WAS NOT for a court to direct him, a non-student, an outsider, to go back to the School to go and start taking the exams that had started since July 29, 2017. The court had not nullified the expulsion nor declared it illegal, and null, so the expulsing was, and still is, subsisting. The effect of the order said to have been made on 09/08/2017 is tantamount to granting a SUBSTANTIVE, final prayer/order at an EX PARTE, interim, stage? There was no situation of irreparable damage to the plaintiff that could justify such an order at that stage! No irremediable harm would have befallen the plaintiff if the court had waited and heard both sides before making any such order, which has a stamp of finality, and is also in the nature of asking a person who is not a student of the School to join the School`s exams.

Call to bar for the current set of students comes in November 2017; so, if in the end the plaintiff wins the case, that is if he wins, the court could still order the defendant to do the needful in the interest of justice — there’s time! Accordingly, even if the plaintiff did/does not participate in the exams, that would not stop the court from making relevant consequential orders in its final judgement, should the plaintiff’s case turn out successful in the end, as was neatly done by the Nigerian Supreme Court in each of ROTIMI CHIBUIKE AMAECHI V. INEC (2007) 18 NWLR (Pt 1065) 2; (2007) 7-10 SC 172 and PETER OBI v. INEC (2007) 7 SC 2682; (2007) 11 NWLR (Pt 1046) 5603.

In AMAECHI v INEC where the PDP had removed/replaced Chibuike AMAECHI as the party`s flag-bearer in then upcoming 2007 Governorship elections in Rivers State. Hon AMAECHI had thereupon gone to court to challenge the substitution, and while at the Supreme Court (on appeal), he had prayed the Supreme Court to halt the upcoming election, pending the determination of the case (appeal). The Supreme Court had declined AMAECHI’s application (to halt the election), advising that there was no cause for alarm; the court had ruled that the election should proceed, even without Amaechi participating as a candidate, but the court hinted further that if the court thereafter discovered (i.e., even after the election) that Amaechi ought to be the rightful candidate of PDP in the election, the court would still give orders that would ensure substantial justice. Exactly this is what the apex court did, and as a result, AMAECHI was later installed as the elected Governor of Rivers State, even after the holding of the election, in which he did not personally participate.

The scenario played out again, in a different form, in ANAMBRA State in the case of PETER OBI v. INEC. Mr Obi had been impeached as the Governor of ANAMBRA State at a time when he had not completed his tenure of four years. He had gone to court to challenge the impeachment. And while he was in court (Supreme Court, on appeal), INEC scheduled to conduct an election to fill in the “vacancy” in the ANAMBRA State Government House. Mr Obi had applied to the apex court to stop the planned election, a request the Supreme turned down, but with a promise to give out relevant consequential orders that would ensure substantial justice, should Mr Obi be successful in the end. Then, even though the election in ANAMBRA had come and gone with Mr Andy Uba installed as Governor, the Supreme Court, on finding that Peter Obi’s impeachment was unlawful and so null, had gone ahead and (consequentially) restored Mr Peter Obi to his position as the Governor.

Now, I ask, is the present scenario any different from those cited above? Why would an already expelled student be directed to go and join an ongoing exam when no court of law had determined the legality or otherwise of the expulsion? I ask again, sorry for this repetition, which is necessary, if the plaintiff is directed to join the exams, has the court not determined the case with finality at the ex parte stage? These are some of the issues that we need to look at!! And this is why I advised that, we should not rely on a mere report in the papers, without questions, and without verification, to begin to pass judgments and to condemn the defendant, because that would not be fair on the Law School? Like I said, the very first step should have been for the trial court to have invited all interested parties and then given each of them ample opportunities of being heard on the substance of the case, especially on all circumstances surrounding the action of the School. It’s only after this had been done, that a court of law may proceed to issue or refuse to issue any order one way or the other. IN MY VIEW, THIS MATTER IS TOO SERIOUS TO BE RESOLVED EX PARTE, without hearing from the School.

This is STRICTLY my personal opinion, with due respect and without prejudice to the POWER AND RIGHT of the court of law to exercise its powers as it may think fit and necessary. Meanwhile, we all need to be very careful, so that we do not encourage actions or omissions that are clearly calculated to destroy legal education in Nigeria and this noble profession of law. Every educational institution has RULES, REGULATIONS, and CODE of CONDUCT for its staff members and students. These rules are made to be obeyed because THEY ARE FOR THE GOOD OF THE STUDENTS, TEACHERS, THE PROFESSION AND THE SOCIETY AT LARGE. Each student has only two options: you wither obey school rules or stay away from the School and from the Legal Profession.  In the case of Nigerian Law School, each student is given these rules and the Code of Conduct during registration and during the Induction (orientation) Course usually held to educate and acquaint Law School students on the do’s and don’ts in the School. Nigerian Law School is a specialist and specialized vocational, professional school where ethics and good conduct are viewed too seriously. We all are well aware of the case of OKONJO v. Council of Legal Education and how it finally ended and what the court said about the power of the CLE to prescribe rules for maintenance of good conduct of aspirants to Nigerian bar. Each student, on being admitted, signs an Undertaking to faithfully observe the Law School rules and code of conduct, which are by the way reasonable, and simple and designed to ensure that only deserving persons find their way into a noble profession. SO, IF YOU VIOLATE any rule AND GET SANCTIONED, it would be a case of volenti non fit injuria. The CLE, in collaboration with the Body of Benchers, has prescribed certain conditions, which every aspirant to the Nigerian Bar must satisfy in order to qualify for call-to-bar and enrolment as a lawyer in Nigeria. These conditions include: (1) The aspirant must be fit and proper; (2) The aspirant must be successful at Nigerian Law School’s Bar Part 2 (bar final) examinations; (3) The aspirant must have participated in the mandatory three-dining (Law Dinner) terms at the Law School; and (4) The aspirant must be successful in the mandatory Portfolio assessment exercise organized for students in the Law School. Accordingly, every aspirant to the Nigerian bar is expected to maintain a high standard of ethical conduct, failing which he may be disqualified from admission into the Law School, or, if already admitted, may be shown the way out. This is not selectively applied or enforced. This is the crux of the matter!!!! And unless we approach it from this angle, there may be serious issues, which may in the end consume our cherished profession of law. The concept of “Fit & Proper” requires obedience to predetermined Code of Conduct, in line with legal ethics. And as LORD DENNING MR declared in RONDEL v WORSLEY [1967] 1 Q.B. 443 at 501, “the code which requires a barrister (and by extension, an aspirant to the bar) to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession, and is subject to its discipline.” Words in bracket are mine, please. Finally, to borrow from Pope Pius XI, Italian scholar & Pope (1857 – 1939), justice requires that to lawfully constituted Authority, there must be given that respect and obedience which is its due…”

Respectfully,

Sylvester Udemezue
(12/08/2017)

UNDERSTANDING A VERDICT OF ACQUITTAL UPON A NO-CASE SUBMISSION (a legal remark, from Sylvester Udemezue)

UNDERSTANDING A VERDICT OF ACQUITTAL UPON A NO-CASE SUBMISSION

(a legal remark, from Sylvester Udemezue)

His Excellency, Senator (Dr) Bukola Saraki, former Governor of Kwara State, and present President of the Nigerian Senate, was on Wednesday, 14 June 2017, discharged and acquitted in respect of the 18-count charge earlier brought against him in 2015 at the Code of Conduct Tribunal (CCT) Abuja. Dr. Saraki had been standing trial before the Tribunal on sundry allegations bothering on false declaration of his assets, etc. His acquittal followed a no-case submission/application made by his counsel (after the close of the case for the prosecution) praying the CCT to discharge and acquit the defendant (Saraki) on grounds that, in the opinion of the defence, the defendant had no case to answer before the Tribunal on the alleged offences. The ruling of the Code of Conduct Tribunal (CCT), headed by Hon Justice Danladi Umar, discharging Dr Saraki, has expectedly drawn mixed reactions from Nigerians and other observers. While some have welcomed it as victory for rule of law, others have described the verdict as “political.”  Some others I have read simply wonder why His Excellency was not made to call his own witnesses and to defend himself before the tribunal’s final verdict. This third school (whose membership is found mainly among non-lawyer observers) has queried the acquittal of Dr Saraki based on the no-case application without first compelling him to prove his innocence. Yet, there are some persons who have openly queried why a man who had for the past two years or thereabouts been advertised and widely publicized in the news media as being grossly “corrupt” would now end up being declared INNOCENT of all allegations against him. To this group, there must be more to the matter than meets the ordinary eye. Bizarre, they say, is the word to describe the scenario! Now, it is in reaction to the view held by the latter groups, albeit erroneously, with respect, that I’ve chosen to make this short comment, on when and how a no-case submission is made, by whom, the implications of a no-case application as well as the options open to the court in the circumstances. It is also intended to point out the legal import of a “discharge” of the defendant in such a case. This will help the general public, especially non-lawyers, to appreciate the verdict of the CCT in Dr Saraki’s case. The law is that, after the conclusion or close of the prosecution’s case, in any criminal trial in Nigeria, there are THREE options open to the defence, namely — (1)  the defence may call its own witnesses and adduce its own evidence to rebut the prosecution’s case; or (2) the defence may, without calling any witness, rest its case on the prosecution’s case; or (3) the defence may enter a NO CASE submission, that is, invite the Court to dismiss the charges and discharge the accused on grounds that, in the opinion of the defence, the evidence produced by the prosecution has not presented a prima facie case against the defendant, to warrant him to enter upon any defence. Section 191(3) of the Nigerian Criminal Procedure Code (CPC, The Code) applicable in northern Nigerian provides that “notwithstanding the provisions of sub-section 2 of this section, the Court may after hearing the evidence for the prosecution, if it considers that the evidence against the accused is not sufficient to justify proceeding further with the trial, record a finding of not guilty in respect of the accused without calling upon him to enter his defence. And such accused shall be discharged.” Similarly, section 286 of the Criminal Procedure Law (applicable in the south) provides that if at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence, the court shall, as to that particular charge, discharge him.  SEE ALSO SECTION 303 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA), 2015, which is to the same effect.  In the case of AJISOGUN v. THE STATE (1999) 13 NWLR (Pt.635)437, the court explained as follows: “A submission of ‘no-case to answer in a criminal court or trial is a submission on point of law. Pure and simple. Nothing more and nothing less. It is a legal submission. It is analogous to a demurer in a civil court or trial. All the accused is saying at that stage of the trial is to this effect: Accept all that the prosecution has said through its witnesses, yet it (the prosecution) cannot secure a conviction either of the offence charged or of any other alternative offence of which I may possibly be convicted, upon the evidence.”  An application for a NO CASE may be made in any of the following circumstances: (a) when there has been no evidence to prove an essential element of the offence; or (b) when the evidence adduced by the Prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that NO reasonable tribunal could safely convict on it. See the following cases:  R. v. Coker 20 NLR 62; lbeziako v. The C.O.P. (1963) 1 All NLR 6 1, Ubanatu v. COP (2000) 1 SCNJ 50, Emedo v.State (2002) 15 NWLR (Pt. 789) 196. Even where NO such application has been made by the defence for a NO CASE, the court has an obligation to suo motu consider the prosecution’s case to see whether a case has been made out against the accused and if it discovers that the prosecution HAS NOT made out any sufficient case, it should discharge the accused. See OKORO v. THE STATE (1988) 5 NWLR 255 (Pt. 94). SEE ALSO SECTION 302 OF THE ACJA, 2015.  According to section 303 (3) of the ACJA, where such an application is made, the court is guided by the following FOUR FACTORS in reaching a decision one way or the other: (1) whethe`r the essential elements of the offence been proved beyond reasonable doubt; (2) whether there is any evidence linking the defendant with the commission of the offence with which he is charged; (3) whether the evidence so far led by the prosecution is such that ANY reasonable court or tribunal would convict on it; and (4) whether, on any other ground, any prima facie case has been made out against the defendant. Once the court answers all these questions in the NEGATIVE, the court must discharge the defendant. The effect of a discharge in such circumstances (i.e., on a no case submission) is equivalent to an ACQUITTAL. See section 301 (1) Criminal Procedure Law; section 191(5) Criminal Procedure Code.  See also NWALI v. IGP (1956) 1 E.N.R.NLR l. In IGP v. MARKE (1957) 2 F.S.C. 5, where the accused persons were subsequently charged after a discharge following a no case submission, it was held on appeal that their discharge was on merit and consequently, they should be acquitted. Based on the above, it is clear that the the discharge of Dr Bukola Saraki on the strength of the NO CASE SUBMISSION application made by him, therefore amounts to an ACQUITTAL, and thus brought the case to a close, in his favour. He is entitled to raise the bar plea of AUTRE FOIS ACQUIT to any future charge based on the same offences or offences having the same ingredients as the ones with which he was charged, and now acquitted.

On the notion that the defendant was not compelled to defend himself or that he as yet to prove his innocence, I simply take some words from the essay, “THE LAWYER`S PLACE IN MISMANAGEMENT OF MEDIA MISINFORMATION IN DEMOCRATIC NIGERIA:”

“…the Nigerian (criminal) legal system is accusatorial and adversarial, and not INQUISITORIAL in nature. Ours is a system in which the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured, and not on pages of newspapers or on social media or by mere RUMOUR. An accused person is thus presumed innocent unless and until his guilt is established beyond reasonable doubt before a court of law in line with the requirements of section 36 (5) of the Constitution …. SIR WILLIAMS BLACKSTONE`s dictum that “it is better for TEN wrongdoers to go scot-free than for ONE innocent man to suffer unjustly” is appropriate in this circumstance. One major lesson from the Fourth Amendment to the Constitution of the USA is that it is better that the guilty sometimes go free than the citizens be subject to easy arrest. Back here, to borrow from the words the famous English writer, journalist, DANIEL DEFOE (1659-1731), it is sad and shocking that, OFTENTIMES, WE HEAR MUCH OF PEOPLE’S CALLING OUT TO PUNISH THE GUILTY; YET VERY FEW ARE CONCERNED TO CLEAR THE INNOCENT. This contravenes the very system we’ve accepted for ourselves. The accusatorial/adversarial criminal justice system is carefully designed to ensure fairness and protection of the accused, lest people be wrongly accused or convicted; liberty and freedom are paramount and any reasons for taking them away must be compelling and apparent even in the face of unmitigated advocacy for the accused. The major object of the adversarial processes is, precisely, to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. As JUSTICE BENJAMIN CARDOZO said in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), ‘justice, though due to the accuser and the society, is due the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.’”(SEE http://thenigerialawyer.com/the-lawyers-place-in-mismanagement-of-media-misinformation-in-democratic-nigeria-by-udemezue/)

Respectfully,
SYLVESTER UDEMEZUE

 

 

 

A NATION`S JOURNEY TO TRUE GREATNESS: WHAT NIGERIANS MUST COPY IN THE AMERICANS

(A Democracy Day reflective memo to Nigerians, from Sylvester Udemezue)

As part of solutions to problems said to be facing Nigeria as a country, and in order to move the country to greater heights, some pundits have put forward the idea of restructuring the country`s system and structure of governance along the path of what obtains in the United States of America. One area said to be in urgent need of this reform is structure of Nigeria`s federal legislature, known as the National Assembly. Champions of these proposition have tried to explain the modus operandi of the United States legislature, and have argued that Nigeria would be better off if the country copied the USA. Yes, quite a few Nigerians agree that Nigeria needs to copy America and some other advanced nations of the world, so as to witness speedier progress as a country. However, in my humble view, copying the structure of the United States` legislature, and replicating the same in Nigeria, does not fall among Nigeria`s most pressing needs at present. The truth is, Nigeria`s problems and their causes (proximate and remote) are simply LEGION!! If we, as a country, truly desire Nigeria to be stronger, better and grander, like some other socially, politically, economically and technologically advanced and speedily advancing nations, such as the US, UK, France, Germany, Japan, China, India, Hong Kong, and even Malaysia, and if indeed we are enthusiastic about copying anything from America, there are far more functional matters, positive attributes we ought to copy in the Americans than the structure of their legislature. There are some, mostly unwritten patterns, ethos, and value systems, which form the bedrock of the rapid evolution witnessed in the USA and some other great and fast-growing nations of the world!  All we need to do is to imitate some of these and we may become like they are! As Jim Jarmusch declared in the MovieMaker Magazine #53 – Winter, January 22, 2004, “nothing is original…. Authenticity is invaluable; originality is non-existent.…” What matters is not where you take things from; it’s where you take them to and what you do with what you have taken. After all, as was once suggested by the popular Soviet psychologist and lawyer, Lev S. Vygotsky, it is through others we become ourselves. Put differently, to borrow from George Bernard Shaw, imitation is the sincerest form of learning. But this is not all! There must be a limit to imitation; copying an outward system is good, but when there is an inward, psychological imitation, we sure cease to be creative. Besides, it is unwise for one to envy what another has, but fail to emulate what that other person did to have it. This is my point; most of us love and envy America and desire to be like the Americans, but how many of us try to think and behave as the Americans?
I do not wish to be understood as having said that Nigerians are yet to copy anything in the Americans. No, we have copied a great deal of a lot. And a few examples would suffice. Most Nigerian children now engage in “sagging.” You recall the prison practice of “sagging” in American, which sees young men or women pull down their trousers from the waist so as to allow the public see and watch their pants (underwear) or a part of it. Even some slightly older citizens now engage in this practice. I am told that is what is now in vogue; if one does not “sag,” he is not among the “happening guys!” However, little do our young men and women know about the origin and purpose of the practice of “sagging.” They just “sag,” because some Americans do sag, thus copying the Americans. Some parents have even openly supported their kids` indulging in this ugly behavior in a country with a rich past founded on morality and virtue. Beside “sagging,” most Nigerian young men and women are now much more prone to violence than ever before; they learnt this from America — a form of “copying” too. Furthermore, the rising wave of brigandage, gun-violence and delinquency in Nigerian has been attributed to our imitation of what is usually seen as the “American way of life.” Also, it is now an acceptable practice for a Nigerian child to wake up early in the morning and greet the parent(s) with a shout of “Hi guys,” “Hi dad,” or “Hi mum.” The African culture which mandates a child to show and behave respectfully towards all elders have been jettisoned for the American shameless and ill-mannered style. What is more? Only songs and music renditions that promote immorality, indecency, crassness, and thoughtlessness sell and make headlines in Nigeria, and among most Nigerians. The list of the things, albeit negative, we have already copied in the Americans, and already painstakingly practicing, is endless. Only very few Nigerians pay heed to the good and positive sides of the Americans. And most Nigerians see little or nothing wrong with the miserable decline in our values, ethos, and sense of morality; yet, we expect to experience a tangible change. No! If we expect to see any positive transformation in our lives and in the life of our country, the change must begin with us, individually and collectively! We should be the change we expect to see. Yes, we are — the young, the old, politicians, power-wielders and power-brokers, students, teachers, and everyone. What then are there in the Americans, individually and collectively, for Nigerians to copy in order to grow better, one may ask? A few examples will serve to illustrate.
As a rule, Americans are known for their love and respect for fellow citizens, irrespective of tribal, religious and sectional affiliations. Besides, they cherish sincere love for their country (the USA) as a whole, and not for themselves and their interest groups, sections, religion or tribe; love for their country is paramount. If Nigerians have copied this attribute of the Americans, why is there so much acrimony, hate and mistrust among the regions and religions, political parties and ethnic nationalities in Nigeria? Most Americans are public-spirited, unlike their Nigerian counterparts, most of whom are selfish, self-seeking, egomaniac and self-aggrandizers, especially in their public life. Nigerian political space is chock-full with politics of bitterness, thuggery, hate and violence, while governance is undertaken by segregation and marginalisation, intimidation and lawlessness. This is in direct contrast with the American political and public space where inclusiveness, rule of law and mutual respect are the rubrics rather than the exceptions.
Americans wholeheartedly embrace and honestly live out the idea of “unity in diversity” Most Nigerians only pay lip service to this, with the result that our diversity has so far been the reason for much of the misery in our country, rather than the reverse. Maya Angelou`s declaration that “in diversity there is beauty and strength” is yet to sink well into the heads of most Nigerians. How on earth does Nigeria hope to achieve any meaningful advancement without unity and oneness? Where would that kind of progress lead us? We are yet to be one and united! Americans, on the other hand, already are, hence their steady and speedy progress. Our hope and progress begin when we learn to act as one big family, not as separate ones — not as “Biafrans,” “O`dua people,” “Arewa people,” “Ijaw people,” “Middle-belters,” etc. As Malcolm Forbes once said, diversity is the art of thinking independently together. Hence, united we stand and progress, divided we falter, fall and fail. In a similar vein, most Americans have learned to use their God-given brains for positive innovative activities, for upliftment of themselves, their country and society, instead of using their talents for evil-doing, mischief-making and yahoo-yahoo, etc, as is widespread among Nigerians. Even the Americans have acknowledged that Nigerians possess great brains, immense talents and unimaginable potentials. The problem is that we (most of us) hardly deploy these talents and brains to positive activity. Most of our greatly talented youths prefer to use these brains to perpetrate mischief.  One final thing on this section, in America, there is limit to the use of brazen propaganda, lies and propagation of barefaced falsehood for purposes of achieving some group and individual gains. In Nigeria, the reverse is the case.
Unlike most Americans, many Nigerians are naive, believe everything they are told and accepting everything they are given. Only very few people, the discerning ones, ask questions. The rest is comfortable with just anything. Can a thing like MMM, Wonder-Banks berth or thrive in a place lie America? But this is what people get in return when their emotions supersede their power of rational reasoning.  It is for this reason that, on 8 December 1822, in his Letter to James Smith, Thomas Jefferson had declared: man, once surrendering his reason, has no remaining guard against absurdities, the most monstrous, and like a ship without rudder, is the sport of every wind. With such person, gullibility which they call faith, takes the helm from the hand of reason, and the mind becomes a wreck.”
Almost everything in America, public and private, is dictated and controlled by merit, knowledge, ideology, hard-work, unlike in Nigeria where place of origin, sectional and religious affiliation and tribal sentiments are the major driving forces. In Nigeria, there is little or no room for merit, hard-work and competence, as opposed to mediocrity, indolence, and crass preferentialism. An average Nigerian employer or power-holder, private or public, is comfortable working with his kits and kin, even if they are most unsuitable for the job. The opposite holds true for the Americans. Would we ever copy this side of America? To take this point further, hard-work, innovation and sacrifice are honestly appreciated and often adequately rewarded in America, unlike in Nigeria, where these virtues are instead abused and placed in the rear. Besides, most Nigerians do not understand that “the essence of knowledge is, having it, to apply it, and not to confess one’s ignorance.” Americans perfectly understand and pursue these wise words of the great philosopher, Confucius.
What is more? Nigerian leaders and followers must copy their American counterparts, and begin to respect and uphold the inalienable rights of their subjects, individual and organizational liberty, and the dignity of the human person.
Everyone must learn to adhere to the basic tenets of rule of law, rule of law itself being the bedrock on which progressive economies and societies are built. On 16 January 2008, Salman Rushdie was quoted by The Times of India to have said that freedom of expression and rule of law are the two things that form the bedrock of any open society. A country that lacks those two is not a free country. In Michael Oakeshott`s words, “the rule of law bakes no bread, and is unable to distribute loaves or fishes (it has none), and it cannot protect itself against external assault, but it remains the most civilized and least burdensome conception of a state yet to be devised.” Absence of rule of law is tantamount to rule by whims and caprices of men in power. And as Aristotle once said, the only stable state is the one in which all men are equal before the law. At the foundation of civil liberties lies the principle that denies to government officials an exceptional position before the law and which subjects those in positions of power and authority to the same rules of conduct that are commands to the citizen (per Justice Louis D. Brandeis). In his farewell address at the end of his eight-year tenure as a President of the USA, William Jefferson Clinton (Bill Clinton) offered the following suggestions to the residents and people of America:
“…we must remember that America cannot lead in the world unless here at home we weave                                           the thread of our coat of many colours into the fabrics of America. As we become ever more diverse, we must work harder to unite around our common value values and common humanity. We must work harder to overcome our differences. In our hearts and in our laws, we must treat all our people with fairness and dignity, regardless of their race, religion, gender or sexual orientation.”
When would Nigerians accept this?
In America, the responsible and knowledgeable citizens and residents, the ones who have made the most tangible contributions to society`s progress, are the up-to-the-minute ones. Besides, every citizen in the USA is accorded his or her due respect irrespective of class or social status, etc. But, in Nigerian, the only trendy people are the wealthy ones irrespective of the source of their wealth. Materialism is the order of the day in Nigeria. In Nigeria, until one has money and material wealth, one is seen entirely as unimportant, unsuccessful, or without power or influence. I recently spoke to a young man who claimed to be working as an “online marketer.” Having listened to his preachments on how quick money could come through this means for all who could only believe in and register with their organization, I tried to offer some advice to the gentleman on why quick money through the easy way was not the best option. He dismissed my advice by simply reminding me that “money answereth all things,” perhaps referring to the Bible verse in Ecclesiastes 10:19, which proclaims that a feast is made for laughter, and wine maketh merry: but money answereth all things.  This best explains the mentality of many Nigerians; materialism. But most of us easily forget the wise counsel by George Lorimer: “it’s good to have money and the things that money can buy, but it’s good, too, to check up once in a while and make sure that you haven’t lost the things that money can’t buy.” There is a gigantic difference between earning a great deal of money and being rich, because as Jonathan Swift once advised, a wise man should have money in his head, but not in his heart. After all, advises Seneca, it is not the man who has too little, but the man who craves more, that is poor. Finally, on this, please permit me to quote a passage from the Christian Holy Bible (with sincere apologies to persons of other faiths). I think this is an appropriate counsel to those Nigerians who agree that money answers all things:
who want to be rich, however, fall into temptation and become ensnared by many foolish and harmful desires that plunge them into ruin and destruction. For the love of money is the root of all kinds of evil. By craving it, some have wandered away from the faith and pierced themselves with many sorrows. But you, …, flee from these things and pursue righteousness, godliness, faith, love, perseverance, and gentleness.…” (see the Bible: 1 Timothy 6: 9-10)
What is more? Mere paper qualification and academic grade are decisive for most employments and appointments in Nigeria, public and private, unlike in America where the employer is much more concerned with what lies inside the prospective employee and with what value the employee is able to add to the employer’s progress, irrespective of the employee`s grade in school. Moreover, Americans prefer certificates obtained from native American schools, colleges and universities. Nigerians, are crazy and brazenly mad about certificates obtained from “overseas,” including even those procured from less-than-standard schools in places like Benin Republic, Ghana, Cameroun, Congo, Niger Republic, Cameroun, Togo, etc. If your certificate is not from a Nigerian school or a school in Nigeria, then you are a hot-cake, and it is immaterial wherever it is from, whatever is the ugly nature or standard of the awarding institution. Even certificates from mushroom schools and universities (abroad) whose system of education and training has practically little or no relevance to the system of education, training and work in Nigeria, are still preferred to certificates from Nigeria-based institutions, however outstanding. The result is that Nigerian youths and old folks alike now engage in all sorts of fraudulent and roguish activities, including but not limited to small and large-scale examination malpractices, forgeries, perjuries, just to get a good grade in school or to secure certificates from “overseas” schools. Some Nigerian parents and guardians even pay through their nose in order to hire mercenaries for their children and wards` examinations, with a view to securing a good grade for the affected children or wards, who, more often than not, have only little knowledge inside their heads, and possess little or no skills in their chosen specialties. A survey recently conducted on the website http://www.debate.org, on the topic, “is academic performance the best indicator of potential for success in life?” was quick to produce a 70 per cent result in favour of “NO” as an answer, as against “YES,” which got only to 30 per cent. Debaters on the forum then went ahead to advance reasons in support of their assertion that not all people with good academic grades can have a more successful future than those of the opposite grades:
“Some of them lack basic knowledge and are not competitive enough. On the other hand, it is not necessary that people who have really bad academic records or who even fail cannot be successful. Just because they were poor in academics doesn’t mean that they cannot be successful. There are several great personalities who were failures at first but then became a success, gained fame and glory. For eg: Albert Einstein… he was poor in academics and got scolded by teachers a lot. They even said that he wouldn’t amount much to life. But he went on to develop many theories in physics, especially the theory of relativity and E = mc^2 which is known as the most famous equation in the world. He even received the Nobel Prize for Physics. If one wants success, one has to have basic knowledge, willpower, responsibility, common sense, leadership skills, capability to think and reason with and competitiveness, for, it is not only the good academic grades that can pave your path to success, but these factors too.”
Most Nigerians are yet to realize this. If this type of survey is undertaken in Nigeria, I can bet that the result would have been 80% — 20% in favour of YES. And this is partly why our problems persist. As we remain carried away by mere paper qualifications, our students devise new means to beat all security mechanisms, rules and laws, in order to graduate with better grades, so that they can be better employed, while the honest, hard-working and skillful students who remain devoted to eschewing all forms of malpractices, graduate with worse grades and thereafter remain underutilized, unemployed or at the lowest cadre; after all, we live in a country where, to many, the end justifies the means. The result is that the really knowledgeable, skillful, competent and responsible ones are out of work while those on the opposite side are gainfully employed and calling the shot in our public space. How does any society hope to move beyond the ordinary with such kind of warped mentality? Second, as the craze for overseas degrees and certificates increases in its intensity, with all politicians and power-wielders, the rich and well-to-do sending their kids and wards “abroad” for overseas` certificates, the Nigerian educational system and institutions are left with less-than-minimum care and attention, to be patronized by mostly the poor and downtrodden. This is why education has taken the back seat in a country of naturally endowed and smart people, like Nigeria, whereas, by contrast, education occupies the front row in America and the rest of the advanced world. Are we ever going to get classified as advanced if we do not take education as seriously as we ought to? Below are what some of the greatest men and leaders who have ever lived on earth have to say about the value of education; but do Nigerians realize these? To Nelson Mandela, the father of modern South Africa, education is the most powerful weapon you can use to change your country and the world. As Benjamin Franklin put it, an investment in education pays the greatest dividend. Yet, in Nigeria, we are yet busy investing in properties, mansions and businesses in the USA, Dubai, UK, etc and in fat (foreign and local) bank accounts, and in promotion of immorality and transient things. To us, education must wait for now, since money, fashion and materialism have taken over! But then, as William Butler Yeats has warned, education is not the filling of the pail; it is the lighting of a fire. Good and quality education replaces an empty mind with an open mind. And in line with John Dewey`s famous postulation, a country without good and quality education is bereft of good life, since “education is not just a preparation for life; it is life itself.” A nation without good education and educational systems possesses no soul! Americans understand this very well. Nigerians are yet to follow suit, a major reason for the persistence of our backwardness in this sector!
In America, religion and spirituality have their proper place and limits in the lives of citizens and residents. Many Americans naturally refuse to be slaves to religion and “god” or “God-worship.” On the contrary, most Nigerians have relinquished their being, soul and brains for religion. Unlike in America, many a religious adherent in Nigeria is prepared to eat the grass or eat his own “shit” and drink his own urine (not minding that these are harmful to his health) provided it’s his pastor, priest or imam that asks him to so do. Americans control their religious life; Nigerians are controlled by religion; yet there is hardly any manifestation of the positive results of religion in our daily lives. The higher the number of mosques and churches and other places of worship in Nigeria, the higher corruption and depravity, vice, mischief, injustice and iniquity become. What an irony! If, as a typical Nigerian worshiper believes or is indoctrinated and made to thoughtlessly believe, God plans to do virtually “everything” for man, why then did God equip the man with a mouth, two ears, hands, eyes and the nose, alongside a very sharp brain, able body and an immeasurable capacity to do great deeds? But the Americans already know, unlike most Nigerians, God did not create us to depend on him for virtually everything. God`s plans for man is that man must do good work, use his brains and think and reason in order to solve his own problems, instead of lazing about and foolishly waiting for God to come and solve his problems for him. We are expected to work and provide for our needs and the needs of our society; thereafter, we can ask for God`s grace to complement our efforts. Now, if one has not made any efforts at all, what does one expect God to complement? The unemployed graduate who wants God to “give” him a job must be prepared to show God what efforts he has made towards securing a job for himself. The young lady who is desperately in need of marriage and is moving from one church or mosque to another, praying, fasting and asking for God`s grace, must first prove to God that she is responsible, well-behaved and mature enough to be and behave as a wife. The farmer who depends on God for his daily bread and bounteous harvest must be prepared to point to a particulate farm-location on which he has engaged in active, positive and honest farm work. You do not place something on nothing; it cannot stand. A popular man of God who goes by the name T.D. Jakes captured this well when he declared: “if you put in nothing, you get nothing in return….” Hence, as the popular saying goes, hustle beats talent when talent doesn`t hustle.
Some Nigerians have lived under the delusion that there is nothing wrong with first erecting one`s castle in the air, before coming back to start providing a foundation for the suspended castle. I disagree; this is impossible! A castle in the air, having no initial foundation, is liable to collapse, even before the later, obviously belated, efforts at providing a foundation. Thomas Jefferson`s wise declaration is apt here: I’m a greater believer in luck, and I find that the harder I work the more I have of luck” A dream doesn’t become reality through magic; it takes sweat, determination and hard work. Heaven helps only those who first initiate concrete steps aimed at assisting themselves. I do not revile prayer (God forbid!), neither do I underestimate the vital role prayer plays in our lives. The point I try to humbly make here is that prayer without good work is fruitless and dead ab initio. This position was better-explained by Saji Ijiyemi, in his book, Don`t Die Sitting: “praying without working is faith inaction.” Even the Christian holy Bible has warned Christians that mere prayer and faith, if not accompanied by actions and good work, is fruitless! (see James 2: 17).  Every one of us has a head but not all of us are able to get ahead. Why? Yes, only those who make good and gainful use of their God-given heads and brains would get ahead; those who stay at home or only inside the church or mosque, praying for God to come and use their brains for them, or waiting for some manna from heaven, would end up going nowhere in life. Most Americans understand this, unlike many a Nigerian Christians, Muslims, etc. Accordingly, in Nigeria, unlike in America, a graduate job-seeker prefers to go to the church or mosque to pray for some MIRACULOUS work and job opportunities instead of going to work or to alternatively creating his or her own work, and later asking for God’s blessings. It’s only in Nigeria, for an example, that Janet’s husband would become unfaithful to the knowledge of Janet, and instead of Janet looking inwards to see where things have gone wrong with her or with her husband, she goes to her priest, pastor or imam for spiritual solutions. More often than not, in her bid to escape falling into a stream, Janet finds herself deep inside a river, and even guilty of the same offence as her hubby.
Motor Accidents rarely happen on good roads in America. In Nigeria, when public roads and highways are in bad shape, riddled with potholes, ditches and bumps, accidents do happen more frequently, due mainly to the bad condition of the roads. People then crave and beg for good roads. But, when once the roads are fixed and now in good shape, the rate of accidents, fatal accidents, increases, this time as a result of MISUSE, OVER SPEEDING and road-users` utter disregard for traffic rules and signs. Only in Nigeria do these happen, not in America. Why then would Nigerians not behave like the Americans to restore sanity on our roads and reduce the rate of avoidable accidents?
American citizens give testimonies in churches and mosques and throw parties to celebrate their return to their home country (America). They believe so much in their own country, that there is no place like one`s own home, unlike some Nigerians who think that home is only wherever the heart is. In Nigeria, people offer testimonies in churches, mosques and shrines, with tithes and bounteous offerings and “seed-sowing” to “celebrate” and “thank” God or Allah for making it possible for them to SECURE an ENRTY CLEARANCE (visa) into America, Europe or Asia. Meanwhile, most of these people have practically NO BUSINESS overseas. And those who have, live their lives in the foreign land, either as slaves or at best as second-class citizens or residents. Nevertheless, they prefer the foreign land and its style of life to living in Nigeria where they are freer citizens with not much hindrance. To drive home a typical Nigerian`s obsession with struggle to live “abroad,” some Nigerians who are not able to secure visas through the right channels soon resort to all sorts of unthinkable, dehumanizing and demeaning games in a bid to cross to over to America, Asia and Europe. The result is that, today, Nigerians are arguably the most abused, victimized and deported people in the world; Nigerians are being extradited from virtually every country of the world, on a weekly basis — USA, UK, Italy, Lybia, South Africa, even Ghana, just to name a few. The slogan no longer is “Ghana Must Go, but “Nigerians Must Go.!” One would not be shocked if in no distant future Nigerians in Niger, Togo, Cameroun, and Benin Republic begin to have their fair share of the expulsion game. Fellow Nigerians, if we truly loved our country and desire it to be greater, like the Americans do, would we be facing these shame and humiliation from even countries that are no better than ours?
Americans love and cherish everything about their country; thus, most Americans are prepared to die for nothing, in defence of America. Most Nigerians hate everything about their country and would not hear their country being discussed in the positive light. Nigerians are the only reasons why Nigeria is down and suffering; most Nigerians derive great pleasure in castigating, battering, slighting and disparaging their own country, and projecting the country as evil and the reason for their individual woes. Some Nigerians do not have a proper understanding of William Shakespeare’s advice that “the proper means of increasing the love we bear for our native country is to reside sometime in a foreign one.” Shakespeare, like the Americans, was actually supporting the notion that there is no place like home; he was saying something like, if you think your own nation is not good enough, try living elsewhere. Then and then alone, he reasoned, would you appreciate what enjoyment there is in staying in your country. The bottom-line is, if one is ashamed to stand by one`s colours, one had better seek another flag. And as Robert G. Ingersoll once declared, “he loves his country who strives to make it the best.” How many Nigerians are honestly and genuinely working for a better and greater Nigeria? Please take note of the reason Seneca gave in support of love for one`s own country: “men love their country, not because it is great, but because it is their own.” Note also George Bernard Shaw`s immutable words: “patriotism is your conviction that your country is superior to all other countries because you were born in it.” I think the problem with many Nigerians is that, unlike the Americans, we have been swayed by Socrates famous declaration that “I am not Athenian or a Greek I am a citizen of the world,” which later found some lone support in the words of Eugene V. Debs: “I have no country to fight for; my country is the earth, and I am a citizen of the world.” But, exactly where has this taken us —- forward or backward? Of course, far backward! To make genuine progress as country, we must copy the attitude of these Americans!
How does one explain that Nigerians would prefer to buy made-in-Ghana and even made-in-Togo wares to those with made-in-Nigeria labels?  Is this not insane, fellow Nigeria! Do we not want to encourage Nigerian industrialists, producers and exporters? Is it God that would come down to prosper an economy that is dependent on 90 per-cent importation to be able to meet its local needs? Do we not recall that even this same Socrates, notwithstanding his declaration, as cited above, was ironically so deeply in love with his own country of Athens that he was reported to have accepted to be punished even unjustly only because of his belief in patriotism and love for his country? To him, even though it was bad he was being punished unjustly, yet it would be far worse and more unjust for him to disobey his country for his personal safety. Socrates` main argument, as reported in one of Plato`s Dialogues, Crito, was based on his conviction that he was a proud citizen of the state of Athens, having been born, nourished, and educated within its borders. In fact, he argued that he was a child of the state and had an obligation towards it similar to that of a child to its parents. By his having resided in the state for these many years and accepting the benefits it had provided, Socrates argued, he had indicated a willingness to accept its laws and regulations and to abide by the decisions of its courts, regardless of what those decisions might be — just or unjust. Socrates did not want to turn his back upon the compacts and agreements which he had made as a citizen of Athens. What a show of love for one`s country! Is such possible in Nigeria? The change must begin with us, if we must experience any positive change!
In America, human life (the lives of citizens) is valued, respected and preserved by all means lawful and necessary, especially by the state. In Nigeria, citizens’ lives mean nothing and are both surreptitiously and openly sacrificed and unscrupulously snuffed out at will, and nothing happens. Human life in Nigeria is worth nothing more than that of a chicken; this is unlike in America. Ours is a country where, as Ann Landers says, many people know the price of everything and the value of nothing. We easily forget that human life, being a creation of God, in God`s image, is most sacred, and that indeed one human life is worth more than all the treasures of the earth. Who then are we to continually permit another living being — any living being — to die by the hands of fellow citizens, when ours is to prevent it? Do we not know, as Bill Clinton has rightly advised, that “each bloodletting hastens the next, and as the value of human life is degraded and violence becomes tolerated, the unimaginable becomes more conceivable?” However, I think there is a curious side to this discussion, which arises from the question once posed by George Callin. The question has left me wondering, what a contradiction! “Life is sacred, no doubt,” he acknowledged, “Who said so? God?.” “How come,” he then queried, “God is one of the leading causes of death throughout history.” I think this question is for Nigerians. Why is it that most Nigerians find it easy to kill and main in the name of religion, culture and tribe and in the name of the same God who has himself made human life sacred and placed a blanket ban on any form of taking of the same life? We need to copy the Americans and have a rethink! Urgently! How do we expect to nurture a greater and safer Nigeria in face of our brazen, unscrupulous disdain for the sacrosanctity and inviolability of human life?
In America, most litigants and complainants believe in the ability of the judiciary to dispense justice impartially, so that when one loses a case in court, he does not blame his loss on the legal system, the judicial system or the judge. In Nigeria, most litigants see all judges as corrupt, political and biased except and unless judgements are in their favour. Hence every judge that gives a judgment against me is a political, biased and corrupt judge while the ones that hand down favorable decisions are the only impartial judges. We forget that the judge is more of a functionary. He’s like a civil servant whose job is to interpret words written down by another branch of the government, whether those words are just or not.
Most Americans seek and get political power, government appointments and political or public positions for the purpose of rendering service and improving the lot of their society, country and citizens. In Nigeria, the quest for such positions is solely for personal enrichment and promotion of sectional, primordial and clandestine objectives of the persons in such positions at any given time. Little wonder, most Nigerian politicians and their agents and supporters easily kill, main, and engage in all sorts of fraudulent and violent atrocities, just to win elections and acquire political power.
Nigerians are too disorderly, unlike the Americans. At petrol stations, in airports, and at motor parks, and everywhere, Nigerians are always struggling to cut corners and get things done the easy and disorderly way. Similar to this is Nigerians` hatred for criticism. There is nothing an average Nigerian leader or a person who is in a position of authority relishes like praise-singing. Leaders prefer to have only what they want to hear, as opposed to what they need to hear, the result being that Nigerian leadership at all levels are surrounded with servants, assistants, Ministers, Commissioners, advisers and allies who are nothing else but mere sycophants, and usually afraid to tell their bosses the truth or to offer suggestions and constructive counsel aimed at making leadership more responsible and responsive to the citizenry. More often than not, this results in leadership being misguided and much less accountable to the people. Finally, within government circles, Nigerians rarely build institutions; almost all public and private institutions in Nigeria revolve basically around individuals, so much so that when the individual is no more, the institution is nothing more, because the institution itself is nothing beyond the shadow of the individual who heads it or, to put it differently, a showcase of the individual`s persona. This is unlike in America where institutions are built and sustained, with little or no regard to the personality of whoever is the head.
This list of what Nigerians need to copy in the Americans, if we must achieve greatness, is endless, but I will stop here for now. Meanwhile, there is one more thing I need to add to the above: Nigerians must, like their American counterparts, learn to choose, elect, enthrone and put in place, in both the public and private sectors, only persons that are foresighted, hardheaded, and charismatic as their leaders, because, more often than not, a nation`s greatness depends on its leaders, as on its followership. And I humbly believe that in this respect, the famous statement by Suzy Kassem in the book, RISE UP AND SALUTE THE SUN (2011) provides a good guide:
“To vastly improve your country and truly make it great again, start by choosing a better leader. Do not let the media or the establishment make you pick from the people they choose, but instead choose from those they do not pick. Pick a leader from among the people who is heart-driven, one who identifies with the common man on the street and understands what the country needs on every level. Do not pick a leader who is only money-driven and does not understand or identify with the common man, but only what corporations need on every level. Pick a peacemaker. One who unites, not divides. A cultured leader who supports the arts and true freedom of speech, not censorship. Pick a leader who will not only bail out banks and airlines, but also families from losing their homes — or jobs due to their companies moving to other countries. Pick a leader who will fund schools, not limit spending on education and allow libraries to close. Pick a leader who chooses diplomacy over war. An honest broker in foreign relations. A leader with integrity, one who says what they mean, keeps their word and does not lie to their people. Pick a leader who is strong and confident, yet humble. Intelligent, but not sly. A leader who encourages diversity, not racism. One who understands the needs of the farmer, the teacher, the doctor, and the environmentalist — not only the banker, the oil tycoon, the weapons developer, or the insurance and pharmaceutical lobbyist. Pick a leader who will keep jobs in your country by offering companies incentives to hire only within their borders, not one who allows corporations to outsource jobs for cheaper labor when there is a national employment crisis. Choose a leader who will invest in building bridges, not walls. Books, not weapons. Morality, not corruption. Intellectualism and wisdom, not ignorance. Stability, not fear and terror. Peace, not chaos. Love, not hate. Convergence, not segregation. Tolerance, not discrimination. Fairness, not hypocrisy. Substance, not superficiality. Character, not immaturity. Transparency, not secrecy. Justice, not lawlessness. Environmental improvement and preservation, not destruction. Truth, not lies. Most importantly, a great leader must serve the best interests of the people first…. Human life should never be sacrificed for monetary profit. There are no exceptions. In addition, a leader should always be open to criticism, not silencing dissent. Any leader who does not tolerate criticism from the public is afraid of their dirty hands to be revealed under heavy light. And such a leader is dangerous, because they only feel secure in the darkness. Only a leader who is free from corruption welcomes scrutiny; for scrutiny allows a good leader to be an even greater leader. And lastly, pick a leader who will make their citizens proud. One who will stir the hearts of the people, so that the sons and daughters of a given nation strive to emulate their leader’s greatness. Only then will a nation be truly great, when a leader inspires and produces citizens worthy of becoming future leaders, honorable decision makers and peacemakers. And in these times, a great leader must be extremely brave. Their leadership must be steered only by their conscience, not a bribe.”
Long live the Federal Republic of Nigeria!
Best wishes to Nigerians!
With love, from
SYLVESTER UDEMEZUE
(udemsyl@hotmail.com)

A NATION`S JOURNEY TO TRUE GREATNESS: WHAT NIGERIANS MUST COPY IN THE AMERICANS (by Sylvester UDEMEZUE)

WHY THE CASE OF GWEDE V. INEC (2014) LPELR-23763(SC) CANNOT BE A RIGHT AUTHORITY FOR THE ORDER OF THE FHC IN THE PRESENT CASE OF MR. BASSEY EDET V. SENATOR BASSEY ALBERT AKPAN, DIRECTING SENATOR AKPAN TO REFUND HIS SALARIES (By Sylvester Udemezue)

WHY THE CASE OF GWEDE V. INEC (2014) LPELR-23763(SC) CANNOT BE A RIGHT AUTHORITY FOR THE ORDER OF THE FHC IN THE PRESENT CASE OF MR. BASSEY EDET V. SENATOR BASSEY ALBERT AKPAN, DIRECTING SENATOR AKPAN TO REFUND HIS SALARIES

A friend of mine has pointed out that it is possible that the Federal High Court in Senator Akpan`s case merely relied on, and applied, the case of GWEDE v. INEC (supra). I replied, with due respect, that the facts of the two cases are clearly distinguishable, as I humbly try to show below.

(1) The facts are different; and
(2) The circumstances are different
(3) So, the results ought to be different in terms of Court ordering the ousted legislator to refund his salaries and allowances.

The facts of Gwede v. INEC are as follows, in summary: (for ease of understanding, I would use “Mr. A” for the ousted legislator, and “Mr B” for the victorious party)

Mr A was duly nominated by the PDP for the Ughelli North Constituency II in the Delta State House of Assembly elections. Mr A`s name was accordingly submitted to INEC by the PDP. Mr A thereafter, of his own volition, and for reasons best known to himself, wrote e letter of withdrawal of his own candidature in the elections; he therefore effectively withdrew, and collected back the nomination fee of N2 million Naira that he had earlier paid as an aspirant; accordingly, Mr. A CEASED to be the candidate of the PDP. Hence the Supreme Court found (in Gwede v. INEC) that “Mr A who was initially nominated by the PDP later on voluntarily withdrew his candidature in writing and he collected the nomination fees of N2 Million. Mr. B, as a result was substituted for Mr. A after the Mr B had to pay a deposit of N2 Million. It becomes clear that with this substitution that Mr A ceased to be PDP`s candidate.” As a result of Mr A`s withdrawal, Mr B paid a nomination fee of N2 million and the PDP submitted the name of Mr B to INEC on 9/2/2011, as PDP`s candidate, which INEC duly accepted in the same 9/2/2011. No one challenged this substitution. However, few days before the general elections which held on 26/4/2011, the INEC suo motu published the name of Mr. A (who had since withdrawn in writing and was duly substituted) as the candidate for the elections. Mr B and the PDP protested against INEC`s action. The election later held on 26/04/2011. INEC issued a Certificate of Return to Mr A. Thereafter on 29/04/2011, Mr B instituted this action.

The Supreme Court held as follows:

“In the instant case, the stand of the PDP has been clear. It is to the effect it did not sponsor the Mr A; the candidate sponsored was Mr B. By mere dint of subverting the position of the political party, the INEC has indeed inflicted continuing damage or injury on the Appellant and the Mr B and his cause of action will not “abate” or become time barred until the injury which is of continuing nature completely stops or abates.

In the lead judgment, ONOGHEN, JSC, as he then was, had this to say:

“I have to observe that the attitude of the INEC in the facts leading to this case is very much worrisome. It has been said time and again by this court that the issue of nomination and substitution of candidate for any election remains the absolute preserve of the registered political party over which the court has no jurisdiction, including the INEC. In the instant case INEC acted outside this principle when it issued a certificate of return to Mr. A despite the fact that INEC knew that Mr. A had ceased, more than 45 days to the election in question to be the sponsored candidate of the PDP. To adopt Mr. A as a ‘candidate’ of the PDP in the circumstance is very unfortunate and send wrong signals to the polity. It is a very bad wind which blows no one any good, and ought not to be encouraged in any democracy. The action of INEC has foisted on the electorate of Ughelli North Constituency II of Delta State House of Assembly a pretender to the seat who not only withdrew from the election in writing but collected the deposit he paid to the PDP for the said election. Mr A was clearly not a candidate for the election, let alone a candidate sponsored by a political party as required by the law.”

The relevant sections of the Electoral Act, 2010, (as amended) are sections 33 and 35, which provide as follows:

“33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act except in the case of death or withdrawal in writing by the candidate.

35. A candidate may withdraw his candidature by notice in writing signed by him and delivered by him to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 45 (fays to the election.”

Note the following about Gwede`s case:

(a) INEC on its own had published the name of Mr A, who clearly was not, because he had ceased to be, a candidate in the then upcoming elections. This is why the Supreme Court in that case held that INEC merely “subverted the position of the political party.”
(b) Mr B was the lawful and only candidate whose name was submitted by the PDP following the voluntary withdrawal of the previously nominated Mr A. Mr A`s withdrawal duly complied with section 35 of the Electoral Act, 2010 (as amended). So as at the date of the election, Mr B, not Mr A, was the candidate of PDP. Mr A should not even be in the picture at all, having effectively withdrawn in writing, before the election.
(c) PDP had vehemently opposed the action of INEC in smuggling in the name of a person who was not the party`s candidate. The action of INEC was clearly abominable.
(d) What INEC did was akin to issuing a Certificate of Return to a person whose name was never submitted by the PDP as its candidate, and who therefore in law did not participate in the election. In other words, INEC had ignored PDP`s lawfully nominated candidate whose name was duly submitted to INEC within the statutory time-frame and who was the candidate of the PDP as at the date of the election, and went and issued the Certificate of Return to another person, who was not PDP`s candidate but was only illegally nominated and appointed solely by INEC.

Accordingly, the Supreme Court rightly held that Mr. A, being a busy body, should refund all salaries and allowances he had collected during the period he was parading himself as a member of the House of Assembly. Of course, the money belonged to Mr B. who
(i) Was duly nominated by the PDP;
(ii) Whose name was the only name submitted to INEC by the PDP;
(iii) Who therefore was the rightful winner of the election;
(iv) who alone deserved to be issued the Certificate of Return; and
(v) who rightfully was entitled to collect the salaries which were wrongfully paid to the wrong person, a busy body (Mr A), who was not the party`s choice, nor a candidate in the general elections.

DIFFERENCES BETWEEN THE TWO CASES:
(1) As seen in Gwede`s case, Mr. A was not PDP`s candidate but INEC`s candidate, unlike in Senator Akpan`s case where the name of Senator Akpan was submitted to INEC by PDP itself
(2) In Gwede`s case, PDP did not support Mr. A who was parading himself as the party`s candidate and winner of the election. On the other hand, in the present case, Bassey Edet v. Bassey Albert Akpan, it was PDP itself that had submitted Senator Bassey Albert Akpan`s name to INEC. And PDP stands behind him as the party`s candidate.
(3) In the Federal High Court where Mr B instituted the action (in Gwede`s case), the Supreme Court found also that Mr. A did not file any claim or counter-claim saying that he (Mr. A) was the rightful candidate duty nominated and sponsored by the PDP for the election. In other words, Mr A did not challenge the action. The PDP and Mr B. were united (in Gwede`s case) that Mr B. was the party`s only candidate for the election. On the other hand, in Bassey Edet v. Senator Bassey Akpan, the PDP who had submitted Senator Akpan`s name (rightfully or wrongly) stood by him and both opposed the action instituted by Bassey Edet.

In summary, the facts of the present case were much closer to the facts in AMAECHI v. INEC than those of GWEDE v. INEC. In Amaechi v. INEC, Hon Amaechi`s contention was that he had been duly nominated as PDP`s candidate, and that his name was thereafter unlawfully replaced with that of Mr. Celestine Omehia who DID NOT TAKE PART IN THE PRIMARY ELECTION. In the present case (Bassey Edet v. Senator Bassey Akpan), Mr Bassey Edet`s contention is that he ( Mr Edet)had been duly nominated as PDP`s candidate for the Akwa-Ibom North-East senatorial district, and that his name was thereafter unlawfully replaced with that of (Senator Akpan) who DID NOT TAKE PART IN THE PRIMARY ELECTION.

In both cases (AMAECHI v. OMEHIA & EDET v AKPAN), the following similarities exist:

(1) The plaintiff in each case was earlier nominated by the party as its candidate;
(2) The plaintiff in each case claimed that his name was illegally substituted with that of the defendant BY THE POLITICAL PARTY ITSELF;
(3) The PDP in each case was in support of the Defendant, since it was the party that submitted his name to INEC.
(4) The Defendant never withdrew from the race, and was never given back his nomination fees.
(5) The court declared the submission of the name of the Defendant by his party void and on grounds that the party should have submitted that of the Plaintiff.
(6) In Amaechi`s case, the Court ousted the Defendant and ordered the Plaintiff in, but refused to order the defendant to refund his salaries. So should it be in Senator Bassey Akpan`s case

On the other hand, in GWEDE v. INEC,

(1) The Defendant was earlier ELECTED by the party as its candidate;
(2) The Defendant later VOLUNTARILY WITHDREW FROM THE RACE, AND WAS PAID BACK HIS NOMINATION FEE;
(3) The PDP submitted the Plaintiff`s name to replace the Defendant who had withdrawn;
(4) INEC unilaterally put the name of the Defendant as PDP`s candidate;
(5) The PDP is not in support of the Defendant, but the Plaintiff, who was its only candidate for the election.
(6) The court rightfully declared the Defendant a busy body, since he was not PDP`s candidate;
(7) The court rightfully declared that INEC cannot choose a candidate for PDP; its for PDP to choose its own candidate. So the person chosen by the PDP, the plaintiff (and not the one illegally smuggled in by INEC, the defendant) was the winner of the election, and as such the rightful owner of the salaries;
(8) Accordingly, the court ordered the Defendant to refund the money which rightfully should have gone to the Plaintiff

Hence, it is Amaechi`s case, and not Gwede`s case that ought to guide the court in the present case (Senator Bassey Akpan`s case). Just as was done in AMaechi`s case, the FHC (in Senator Akpan`s case) should never have ordered Senator Akpan to refund his allowances and salaries

The case of GWEDE v. INEC is therefore clearly distinguishable from Edet v. Senator Akpan. A lower court is not obliged to follow the decision of a higher court where the facts of the higher court`s decision and those of the case before the lower court are distinguishable — See CHUKWU V. IDOWU [1982] 3 FNLR 346

NOTE:
I will expand these points, shortly

Thank you
Sylvester C. Udemezue

UNDERSTANDING THE IMPROPRIETY OF COMPELLING A DEPOSED OFFICE-HOLDER TO REFUND HIS EARNED EMOLUMENTS: AN INQUEST INTO THE DECISION IN BASSEY ETIM versus SENATOR BASSEY ALBERT AKPAN [By Sylvester C. Udemezue]

UNDERSTANDING THE IMPROPRIETY OF COMPELLING A DEPOSED OFFICE-HOLDER TO REFUND HIS EARNED EMOLUMENTS: AN INQUEST INTO THE DECISION IN BASSEY ETIM versus SENATOR BASSEY ALBERT AKPAN

[By Sylvester C. Udemezue][i]

A breaking news in Nigeria`s news media[ii] on 27 February 2017 came under the caption, Court sacks Senator Bassey Akpan, orders refund of salary allowances received.” Several media houses carried the news report that a Federal High Court sitting in Uyo, Akwa Ibom State, Nigeria, had on the same day ordered the senator representing Akwa-Ibom North-East Senatorial Zone in the upper chambers of Nigeria`s National Assembly, Senator Bassey Akpan, to vacate his seat immediately. The court presided over by Justice Fatun Riman also made the following additional orders – (a) the Independent National Electoral Commission (INEC) should immediately withdraw the Certificate of Return INEC had earlier issued to Senator Akpan; (b) INEC should issue a new Certificate of Return to the plaintiff in the case, Mr. Bassey Etim; (c) the President of the Senate of the National Assembly should swear-in Mr. Bassey Etim as the senator representing Akwa-Ibom North-East Zone in the National Assembly; and (d) Senator Bassey Akpan must within 90 days from the date of the judgment refund to the Federal Government of Nigeria all the salaries and allowances he (Senator Akpan) had received since he was sworn in as a Senator in the current dispensation. Mr. Bassey Etim (as the plaintiff in that case) had approached the Court[iii] after the 2015 general elections alleging that Senator Akpan did not contest the PDP primary election as a senatorial candidate into the Akwa-Ibom North-East senatorial district. The Court agreed with Mr. Bassey Etim`s arguments, declaring that Senator Akpan was not duly elected in the primary election of the People’s Democratic Party held on December 7, 2014, and as such was not eligible to continue to occupy the district`s seat in the Red Chamber.[iv]

Ordinarily, it is left for Nigeria`s appellate courts to look further into the matter with a view to affirming or setting aside the judgment of the court in the matter, that is, if the matter goes on appeal. I am thus not concerned in this humble analysis with the Federal High Court order nullifying the primary election that had produced Senator Bassey Akpan as the senatorial Candidate of the Peoples` Democratic Party (PDP) neither am I bothered by the other consequential orders, instructing the INEC to issue a Certificate of Return to Mr. Bassey Etim and directing the Senate President to swear him in as the Senator representing the affected district, in place of the incumbent Senator, Bassey Albert Akpan.

What evokes or provokes a cause for urgent concern in my mind is the further decree of His Lordship, the presiding Judge, additionally directing Senator Bassey Akpan to within 90 days from the date of the judgment, refund to the Federal Government of Nigeria all the salaries and allowances he (Senator Akpan) had received since he was sworn in as a Senator in the current dispensation.” It is the legality and justness of this particular order, and nothing more, that I propose to critically, but humbly, examine with a view to ascertaining whether or not there exist any foundations, legal or otherwise, upon which such order could rest for validity in a country founded on, and governed by, rule of law and fairness.

There is no doubt that some schools of thought would applaud this particular order as a sort of “victory for democracy and rule of law,” while some others would readily agree that such was necessary to serve as a deterrent to future (primary or general) election riggers. Indeed, a very close friend of mine wasted no time in praising what he described as the courage of the presiding judge in having upheld the rule of law and in disapproving fraud and unjust enrichment. According to my said friend, since the court had found that the sacked Senator (Bassey Akpan) was “illegally” occupying a senatorial seat in the Red Chamber, and as such did not deserve any salaries and allowances he had received in that capacity, it was only apposite to compel him to make a recompense in regard to such “illegal” emoluments, especially as he had “rigged” the elections in his own favour. The emoluments, my friend further argues, represents benefit of his fraudulent and corrupts acts. Some other persons might no doubt have several other bases for arguing in favour of a refund of what in their view are unmerited salaries and allowances. But there is one other side of the coin the various lines of argument have failed to address, and to which my humble attention now turns.

An easier way to approach this matter is first, to ascertain all probable questions thrown up by what I have chosen to humbly identify and refer to as the “refund order” (that is, the court order directing Senator AKpan to refund his emoluments). Such questions include, but may not be limited to: (1) to what extent does the refund order take into account the universally acclaimed Latin maxim, horror vacui,” commonly stated in the English Language as “Nature abhors a vacuum?”  (2) Is this refund order not unfair to Hon Senator Bassey Akpan himself? Is it not tantamount to punishing Senator Akpan for the wrongs perpetrated by PDP and or INEC? (3) Has the court not acted outside its powers in issuing such a refund order? (4) How does the refund order impact on the constitutional rights of the people of Akwa-Ibom North-East Senatorial District to be represented in the Red Chamber for a period of FOUR years?

On the first challenge, it was the ancient philosopher, Aristotle, that once declared that “Nature abhors a vacuum.” Aristotle`s conclusion was based on his observation that nature requires every space to be filled with something, even if that something is colorless, odorless air. In physics, this is known as “horror vacui.” It is a postulate that nature contains no vacuums because the denser surrounding material continuum would immediately fill the rarity of an incipient void. This theory was later criticized by the atomism of Epicurus and Lucretius. Another vicious opposition to Aristotle`s theory came from the Hero of Alexandria who challenged the theory in the first century CE, by attempting to create an artificial vacuum, but this failed.[v] Just as it is in the law of nature, so also it is and ought to be in positive laws,[vi] it is humbly submitted. Thus, the mere fact that Senator Akpan`s victory is voided does not, and should not, render invalid or ineffective all and any actions taken by him within the period he held sway as the senator representing his constituency. It is true, in law, that when a thing is quashed or voided by a court of law, the effect is that the same is deemed to never have existed in the very first place. However, where a person`s occupation of an office is voided on grounds of illegality or non-compliance with the law, the invalidation order does not, and ought to not, affect actions already taken by the affected office-holder prior to the voiding of his occupation of the office, neither should it affect any benefits or rewards he had received as a result of his occupation of the office and discharge of the tasks and duties of the office.

The same should hold true for the invalidation of the electoral victory of Senator Bassey Akpan in both the party primaries held by the PDP for the Akwa-Ibom north-east senatorial district and the April 2015 general elections. Thus, in the case of Balonwu v Gov. of Anambra State,[vii] the Supreme Court emphasized that all actions already taken in Anambra State by the then Governor Chris Ngige within the almost three years he was in power were valid notwithstanding the subsequent annulment of his election by the Nigerian Court of Appeal. This supports the principle stated above that nature abhors a vacuum; if the period after the annulment and all actions taken within the period should be adversely affected, then it would necessarily follow that the affected State had no Governor within that period, which would create a vacuum, and consequently throw the State into inconceivable turmoil. Similarly, if, following the cancellation of his occupation of the senate seat, Senator Akpan is made to refund all his earned remunerations on the basis only that all his actions in that capacity were illegal, void and amount to nothing, it then follows that Senator Akpan would be taken to never have represented that zone in the upper legislative chamber, with the added result that the people of Akwa-Ibom North-East senatorial zone did not have any representative in the National assembly during the period June 2015 to February 2017 – the same period Senator Bassey Akpan had held sway as their Distinguished Senator. I respectfully hold the view that this position is not, and cannot, be true as the same amounts to attempting to deny the obvious, which, more often than not, is an exercise in futility.

Throughout history, and in all aspects of law, the rule has been that where a leader, manager or other office holder is made or ordered to vacate his office, for whatever reasons, the period such a leader or manager has spent in office prior to the annulment order is usually not adversely affected by such non-confirmation of his appointment nor by cancellation of his appointment, selection or election. Examples abound to buttress this position! For purposes of Corporate Governance, as an example, section 256 (1) of the Companies & Allied Matters Act (CAMA), 1990[viii] (as amended) provides that a person disqualified under section 254 of CAMA is not qualified to be a Director. Section 254 (1) (a)[ix] is concerned with a person who has been convicted by a High Court of any offence in connection with the promotion, formation or management of a company.  Then, section 257, dealing with vacation of office of a director, stipulates that where a person who has already been appointed a director thereafter becomes disqualified or prohibited from being, or continuing in office as, a director by reason of any such order made pursuant to section 254 (say, he is convicted of any offence in connection with fraud he may have committed in relation to the management, promotion or formation of a company) such a person shall immediately cease to hold office as a director. Interestingly and in recognition that “nature abhors a vacuum,” there is no provision in the CAMA that in any such instance, where a director who has held office or has been in office for some time before being removed or terminated (on account of his conviction for fraud), the affected director shall refund or be made to refund all or any part of the salaries and allowances he was paid while in office, that is, prior to his vacating his office.

Similarly, where a person earlier appointed as a director by the Board of Directors of a Company to fill a vacancy in the office of director is thereafter removed from office by the general meeting of the company, the same person shall immediately cease to hold such office, but removal in such a case, on whatever grounds, shall not and does not affect any previous acts of such a director, neither would such removal adversely affect any salaries and allowances earned by him prior to his removal[x]. It is submitted that the same ought to have applied in the present case involving Senator Bassey Akpan.

Indeed, it makes a mockery of the entire spirit of justice to direct a legislator whose election is voided on whatever ground to refund all his earned emoluments. If this is allowed to stand, it then means that where for instance a public office-holder who has been in office, say for ten years, is later discovered to not be qualified for appointment to such an office and is accordingly removed from such office, then following the nullification of his appointment, he would be directed to refund to his employers all salaries and allowances he has earned within the ten years held the office. In a similar vein, a university lecturer who is removed from his position on grounds of non-qualification would be asked to return to the University all of his remunerations for the period. If this be the case, the question may be raised, what about all the “work” such former officer-holder (lecturer, legislator, clerk, or whoever) had done while in occupation of such office? What about the effort, energy and time he had invested in promoting and supporting his employers, prior to his removal?  To what extent is this fair and reasonable on such former employee?

Still on the hypothetical example of the sacked lecturer who is asked to refund his wages and allowances, would his employers (the university), in a reciprocal manner, “refund” or return to the affected Lecturer all the “knowledge,” “ideas,”etc., the Lecturer has imparted into the heads and brains of his students over the years, while he was still in such office, albeit illegally? What happens to the certificates already awarded to his students on accounts of the lecturer`s teaching and assessment of the students; would his former students be compelled to return their certificates and relinquish the knowledge in their heads to the Lecturer, since such knowledge, the examinations questions set and the assessments done by the affected Lecturer were all illegally done, based on the argument that the lecturer was illegally occupying his office?

What is more? Assuming the President of the Senate of the Federation is removed from office after two years in office and, as in the case of Senator Bassey Albert Akpan, is additionally ordered to refund all his earned salaries and allowances, the query is, if he is made to refund his salaries because perhaps “he did not deserve them in the first instance,” who then would be said or recorded in the history books as the President of the Senate for the affected two years? Would asking him to return his pay not foist an impossible confusion-laden situation; would it then not follow that all the Bills and resolutions passed and any other actions taken by the Senate during the period that the deposed Senate President was in office as such would have to be, consequently, rendered void and of no effect, following which even all the annual and or supplementary appropriation Bills or budgets passed and implemented during the material period would also be taken to have been illegally passed and implemented? Accordingly, as an after-effect, all projects executed from the illegally passed budget, and all monies disbursed therefrom would have to be reversed, cancelled and restored and refunded to the affected government`s treasuries. Even road projects already awarded and executed with monies from the illegally passed budget would have to be reversed, and the coal-tar would be excavated while the contractor must return the exact sum of money he received from the government on account of such project. Easier said than done! How possible would all these be, because one cannot order me to refund the wages I have collected for work I have done, and yet not also order a reversal of the services I have rendered? The Latin maxim, which Herbert Broom has describe as a “fundamental legal principle” is ‘lex non cogit ad impossibilia.[xi] This principle has been translated variously as “the law must not be interpreted to command the doing of what is practically impossible,” “the law does not compel the doing of impossibilities,”[xii] “the law requires nothing impossible,”[xiii] or “the law does not compel a person to do that which he or she cannot possibly perform.”[xiv]

Accordingly, if we agree that Senator Bassey Albert Akpan`s name must be recorded as having occupied that office for the affected period, and that he had (diligently and faithfully) discharged the powers and functions of that office, even though, he was later found to be not qualified, then, for his having occupied the office and for the work he had done in that capacity, he is no doubt entitled to keep his earned wages. This is the only reasonable thing to do. To argue or hold otherwise is to stand justice and law in on their heads and interpret both upside-down! This is exactly what the learned trial judge (Hon Justice Fatum Riman) of the Federal High Court, Uyo, Akwa-Ibom State, Nigeria, has done in Senator Bassey Albert Akpan`s case, and to that extent, with utmost respect to the learned judge, the judgment is highly condemnable, because whenever the question is asked as to who was the Chairman of the Senate Committee on Gas from 2015 to early 2017, and as to who represented the Akwa-Ibom State North-East senatorial district in the Nigerian Senate, only the name Bassey Albert Akpan would be mentioned.

Interestingly, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) expressly provides that[xv] “a member of the Senate shall receive such salary and other allowances as the Revenue Mobilization Allocation and Fiscal Commission may determine.” Neither the Constitution nor any other law authorizes, under any circumstance, a refund of salaries already collected, not even where the affected senator is later removed from office. The Court in the present case knew all these and nevertheless went ahead and asked Senator Akpan to refund all his earned salaries and entitlements. What the court has thus done, and which is most unfortunate, is, perhaps having acknowledged in one breath that a particular senator represented a certain constituency for about two years in the upper legislative chamber before being kicked out, to proceed in another breath, to deny such a former senator the right to keep his emoluments during the period. I most respectfully disagree this reasoning of the court, and so should every reasonable mind

Furthermore, is the refund order not tantamount to punishing Senator Akpan for the wrongs perpetrated by PDP and or INEC? Senator Bassey Akpan was only a candidate in the general elections held for the Akwa-Ibom North-East senatorial district in April 2015. The independent National Electoral Commission (INEC) had declared Senator Bassey Akpan winner of the said elections and consequently issued him the official Certificate of Return, following which the Senate President had sworn him in as the Senator representing the Akwa-Ibom North-East Senatorial District in the Red Chamber. First, if the Court found the primary election that had produced Seantor Bassey Akpan as the candidate of the People`s Democratic Party (PDP) as faulty, for whatever reasons, was it or would it not be sufficient for His Lordship of the Federal High Court, Uyo Divison, to have simply set aside the affected primaries and also reprimanded the PDP for its having submitted Senator Akpan`s name, instead of that of Mr. Bassey Edet, as the candidate of the PDP?

What exactly is the justification for the refund order? Would Senator Akpan have participated in the general elections as a candidate if the PDP had not submitted his name? Would he have been sworn in as a Senator had INEC not declared him winner of the election? Would he ever have acted in the capacity of a senator had he not been sworn in by the Senate President? Is Senator Bassey Albert Akpan the owner, controller or director of the PDP, the INEC or the Senate? Were these three bodies that had facilitated his ascendance to the position of a Senator not independent bodies and free from Senator Bassey Akpan`s control and influence? It is therefore respectfully suggested that, based on the aforesaid, the maxim that “one should not be permitted to benefit from one`s own wrong” does not apply in this instance. Also, not applicable, for the same reasons, is the principle that “one should not be allowed to use the provisions of a statute as an engine of fraud.” Finally on this point, the Electoral Act, 2010 (as amended) is crystal clear on the only order or orders a court of law should make in such scenario: “if the tribunal or the court as the case may be determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or court shall nullify the election.”[xvi] 

Following directly from the aforesaid is a further question as to whether the order directing the sacked legislator to refund his earned benefits is not ultra vires the powers of the Court.  Rightly or wrongly, the court annulled Senator Bassey Akpan`s nomination, ordered a withdrawal of his certificate of return and commanded the issuance of a new Certificate to his rival, the plaintiff in the case under review, Mr. Bassey Edet, and also directed INEC to swear in Mr. Edet as a Senator, in place of Bassey Akpan. Were these not sufficient remedies in the circumstances of the case? Was the refund order among the Plaintiff`s claims in the suit? So far, there has been no reported proof that such was one of the prayers or claims of the Plaintiff/Claimant in that case. One then wonders in what way such a strange order does contribute to meeting the justice of this matter or in assuaging the feeling of Mr. Bassey Edet? Has the court of law not turned itself into a Father Christmas, dishing and doling out unexpected relief and handing out orders in the form of unsolicited gifts? That a court cannot give or award in a suit before it that which is not specifically claimed by any party to the suit is already settled in law. In AMAECHI v. INEC,[xvii] the Supreme Court of Nigeria (per Oguntade, JSC) declared that “The fundamental duty of the court is to expound the law and not to expand it. It must decide what the law IS and not what it MIGHT be.” Similarly, in Ogunsola v. Ibiyemi,[xviii] the Court of Appeal (per Fabiyi, JCA) held that a judge has no power to award that which was not claimed by a party. This is because he is not a Father Christmas. And the court is not a charitable organization. In Etim Ekpeyong v. Effiong Nyong,[xix] the Supreme Court stated thus:

“The court is without the power to award to a claimant that which he did not claim. A court        of law may award less and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution. Its duty in civil cases is to render unto everyone according to his proven claim.”

Speaking at the valedictory court session held in honour of a retiring Justice of the Supreme Court, Justice Muhammad Muntaka-Coomassie, at the Supreme Court complex on 10 February 2016, the then Chief Justice of Nigeria, Hon Justice Mahmood Mohammed made the following observations:[xx]

“The Nigerian Judiciary, though constantly striving to redress wrongs and tilt the balance of that which is right, has recently had to face the backlash of misguided opinions fashioned without due consideration of the law and rationale for the system of government that we operate.  The Judiciary is duty bound to act in accordance with the dictates of the law as it stands and not as critics would like it to be. In this sense, naïve idealism is but a pale imitation of legal certainty…’’

It is no longer in question that a court of law has no power to turn itself into a father Christmas. Nonetheless, there is a related issue which I believe deserves some examination, here, and it is this: to what extent is the court striped of powers to make unsolicited orders? I think for purposes of giving a just answer to this question, some look at the Supreme Court judgement in the case of CHIBUIKE AMAECHI v. INEC[xxi] is useful. In that case, while offering reasons for its earlier judgement (given on 25/10/2007, the apex court in the lead judgment/reason delivered by Oguntade, JSC (on 18/01/2008), stated thus:

“This court and indeed all courts in Nigeria have a duty which flows from a power granted by the constitution of Nigeria to ensure that citizens of Nigeria, high and low get the justice which their case deserves. The powers of the court are derived from the constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. The judiciary like all citizens of this Country cannot be a passive on-looker when any person attempts to subvert the administration of justice and will not hesitate to use the powers available to it to do justice in the cases before it. Section 6(6) (a) of the 1999 Constitution provides:  ‘(6)    The judicial powers vested in accordance with the foregoing provisions of this section –  (a)    shall extend, notwithstanding anything contrary in this Constitution to all inherent powers and sanctions of a court of law.’ And Section 22 of the Supreme Court Act provides: ‘The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, … and may make an interim order or grant any injunction which the court below is authorized to make or grant … or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.’ In view of the above provisions, there can be no doubt that there is a plenitude of power available to this Court to do which the justice of the case deserves. It enables a court to grant consequential reliefs in the interest of justice even where such have not been specifically claimed. Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was the candidate of the P.D.P. for whom the party campaigned in the April 2007 elections not Omehia and since P.D.P. was declared to have won the said elections, Amaechi must be deemed the candidate that won the election for the P.D.P.  In the eyes of the law, Omehia was never a candidate in the election much less the winner.  It is for this reason that 1 on 25/10/2007 allowed Amaechi’s appeal and dismissed the cross-appeals. I accordingly declared Amaechi the person entitled to be the Governor of Rivers State. I did not nullify the election of 14/04/2007 as I never had cause to do so for the reasons earlier given in this judgment”

It is clear from Amaechi v. INEC that a court is permitted for certain purposes, to grant certain consequential order or orders, even though such order or orders are unsought. However, it is submitted that, flowing directly from the same decision, three conditions precedents must be confirmed to exist before a court can consider whether or not to exercise its inherent powers in this respect:

  1. such consequential order must flow directly and equitably from the facts and reliefs in the substantive case;
  2. such order must be targeted at realising or accomplishing the justice and justness of the case at hand; the order must be a consequential relief made in the best interest of justice, notwithstanding that such have not been specifically claimed. The order must be strictly and solely for purposes of ensuring that interested litigants get the justice which their case deserves; the scenario must be such that to do otherwise would permit or promote rather than avoid injustice; and
  3. the circumstances in which the unsought order is proposed to be made must be extremely exceptional. It is not as a matter of the rule.

 These conditions ought to necessarily co-exist in order to justify such sweeping departure from the time-honored rule. Thus, where the three conditions are, or any one of them is, absent, the court would be in error to make any order or grant any relief save that which is specifically sought by litigants. In his supporting judgment (reasons for his earlier judgment) in the same Amaechi v. INEC, KATSINA-ALU, JSC has this to say:

This case is not an election matter. It is clearly a pre-election matter. The court was called upon to decide who of the two candidates was PDP’s nominated candidate for the April election. As I have already held it is the Appellant that was the PDP’ s candidate for the Governorship election. As for the order that I ought to make, I must say that this court has wide jurisdiction to make consequential orders and to grant reliefs which the circumstances and justice of a case dictate. On the principle of Ubi jus ibi remedium if the court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either at common law or by statute.”[xxii]

In Amaechi`s case, the supreme court, having decided that (1) indictment of any person by a Panel or Tribunal of inquiry amounts to a mere “allegation” and does not, without more, translate to conviction so as to warrant his disqualification as a candidate in an election; (2) that PDP`s substitution of Omehia for Amaechi as the party`s governorship candidate for the 2007 gubernatorial elections in Rivers State was void and of no effect; and (3) that, consequently, that Hon Chibuike Amaechi remained in the eyes of the law PDP`s candidate for that election, such that it was Amaechi, and not Omehia, that was voted into the office on the date of the election, the apex Court was then faced with the very difficult task of how to ensure that Hon Amaechi reaped the fruits of this victory, since Omehia had already been declared winner of the elections and duly sworn-in as, and was already discharging the duties of, the Governor of the State. Besides, there was no relief (in the Plaintiff`s originating processes) specifically praying the court to remove the then sitting Governor Omehia and declare Amaechi the Governor. There could not have been any such relief since the suit had begun before the date of the election itself.

The appellant counsel had thus prayed the apex court to (by way of a consequential order, in the interest of justice) go ahead and sack Governor Omehia and declare Amaechi the lawful Governor of Rivers State, even though such relief was not specifically sought by the appellant. In response, the respondents (INEC, Omehia and PDP) urged the court to reject this oral prayer by the appellant, on two grounds: (1) the court is not a father Christmas, and as such must not grant unsolicited reliefs, and (2) Governor Omehia was protected (from civil suits) by the immunity provisions in section 308 of the Constitution of the Federal Republic of Nigeria, 1999. In its ruling, the apex court reasoned thus (per Katsina-Alu, JSC):

Section 308 of the 1999 Constitution is not meant to deny a citizen of this country his right of access to the court. It is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. It is a provision designed to protect the dignity of the office. However, the proviso under section 308 ensures that the period when a governor enjoys immunity shall not be taken into account in computing the time limit for initiating an action under the Statute of limitation. Section 308 cannot be relied upon where the nature of the suit is such that the res in dispute will be destroyed permanently with the effluxion of time. To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of action is not likely to destroy the res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.”

Furthermore, the court (per Musdapher, JSC[xxiii]) declared:

“Section 308 of the 1999 Constitution does not protect a governor from legal proceedings in a matter of his election per se or in a matter connected with the election even when he,as a contestant has been declared duly elected or returned as governor. Election petitions and election related proceedings are special proceedings divorced and separated from civil or criminal proceedings within the intendment and context of section 308 of the Constitution. The processes leading to the election are not only justiciable at the instance of any party aggrieved in the process but the immunity under section 308 of the Constitution cannot avail a governor since the immunity is not within the contemplation of such proceedings. [Onitiri v. Benson (1960) SCNLR 314; Oyekan v.Akinjide (1965) 381.]” Per Musdapher, JSC

It is my humble opinion that the consequential order the Supreme Court made in Amaechi`s case is clearly justified and justifiable, strictly for purposes of attaining the justice of the case. Had the court acted otherwise, Hon Amaechi`s victory would have been a mere pyrrhic victory, being absolutely nugatory and of no use whatsoever since there was no way he could reap the benefits of his so-called success. But for that very consequential order, then, Amaechi`s success in court would have been akin to a mere paper tiger — seemingly powerful, yet too weak to be of any assistance to the triumphant party!

On the other hand, one may ask, by way of an analogy, which justice was His Lordship, the trial judge, trying to aid in the present case of Edet v. Akpan when the court ordered the defendant, Senator Bassey Akpan, to refund his salaries? How does the refund order in the circumstances promote justice? What pains or injustice would Mr. Bassey Edet, the plaintiff, have suffered had the court refrained from making such a frivolous refund order? How would not making such order detract from Mr. Edet`s victory in the case? In my opinion, there was nothing that rendered the refund order absolutely necessary in this case. If anything, the order only undermined the justice of the case, since justice itself is a two-way sword, a double-edged sword. While adding nothing to help the case of Mr. Edet, the refund order did everything to foist brash but needless injustice on Senator Bassey Akpan, by denying him the wages of his labour for the almost two years he has been in office as the Senator representing the Akwa-Ibom North-East Senatorial Zone in Akwa-Ibom State. The order runs against section 70 of the Nigerian Costitution[xxiv]

Conversely, the Supreme Court in Amaechi`s case had wisely refrained from issuing any further consequential order to compel then ousted Governor Celestine Omehia to refund salaries and allowances he had earned within the short period he was in office, even though the court had agreed, and rightly so, that Mr. Omehia was only an impostor who was unlawfully occupying a position rightfully belonging to Hon Amaechi. The Supreme had thus allowed Mr. Omehia to go home with his earned emoluments as just reward for the work he must have done while in office as Governor. This is the right and sensible thing to do! As Hon Justice Benjamin Cardoso once said,[xxv] “justice, though due to the complainant or claimant and the society, is due also to the defendant. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.” And in the words of C.M Myers, “if we wish to maintain our quality of life, it is important to not only to maintain the rule of law but also to apply it with respectfulness and compassion.[xxvi] Justice cannot be for one side alone, but must be for both.

In conclusion, not only that the refund order is unfair to Senator Bassey Akpan; it also is a gross abnormality which was most uncalled-for in the circumstances. The order is an undefended and inexcusable violation of the constitutionally guaranteed and indisputable right of people of the Akwa-Ibom North-East Senatorial District who are entitled to be represented in the Red Chamber by one of their own, for a period of FOUR years, in any dispensation, and whom Senator Akpan had represented in the National Assembly for almost two years.[xxvii] Ordering the deposed senator to refund all his salaries is tantamount to an indirect denial of the fact that Senator Akpan did actually represent his people for the period in question. It is therefore obvious, from this, and other discussions above that the refund order has set a dangerous precedent, which our appellate courts need to urgently dethrone in the best interest of continued good-health of our legal system and judicature the principal aim of which is to, not only do justice, but to also ensure that justice is seen at all times to be done in a most evenhanded and rational manner? The English locus classicus, R v Sussex Justices, Ex parte McCarthy[xxviii] is a leading case on impartiality and recusal of judges. The case is especially famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. But of special note is the aphorism the court in that case brought into common parlance: “Not only must Justice be done; it must also be seen to be done.” The Nigerian Supreme Court has since adopted this dictum and has insisted that such must be observed in all processes of adjudication in the country. The case of Aroyewun v. Osolani[xxix] is a classic example in this respect. Nothing can better or more reasonable because as the ancient Greek philosopher and writer, Epicurus, once declared that, “just as nothing is straighter than that which is straight, so also is nothing juster than that which is just.”[xxx] Potter Stewart,[xxxi] American Judge and Associate Justice of the United States Supreme Court,[xxxii] summed it all up in his legendary and immutable pronouncement: “fairness is what justice really is.”[xxxiii]

ENDNOTES

[i] Sylvester C. Udemezue (UDEMS) is a Lawyer and Lecturer at Nigerian Law School, Victoria Island,  Lagos, Nigeria; udemsyl@hotmail.com +234 (0) 802 136 5545, http://www.udemsyl.worpress.com/

[ii] See http://dailypost.ng/2017/02/27/court-sacks-senator-akpan-bassey-orders-refund-salaries-received/.

[iii] Under section 31 (5) and (6) of the Electoral Act, 2010 (as amended), if a court determines that the nomination (or submission of the name) of a candidate by a political does not comply with the Act, the court shall issue an order disqualifying the candidate from contesting the election.

[iv] See http://punchng.com/court-sacks-sen-bassey-akpan-orders-refund-of-salary/

[v] See https://en.wikipedia.org/wiki/Horror_vacui_(physics)

[vi] The term “positive law” is has been defined to mean statutory man-made law, as opposed to “natural law,” which is purportedly based on universally accepted moral principles, ‘God’s law,’ and/or derived from nature and reason. The term “positive law” was first used by Thomas Hobbes in Leviathan (1651). See  http://dictionary.law.com/Default.aspx?selected=1552. In the strictest sense, “positive law” is law made by human beings, that is, “Law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. See http://www.positivelaw.com/?page_id=20.

[vii]  (2009) 18 NWLR (PT 1172) 13 SC

[viii] Cap C20, Laws of the Federation of Nigeria, 2004.

[ix] Ibid

[x] See CAMA, section 249

[xi] See http://www.duhaime.org/LegalDictionary/L/LexNonCogitAdImpossibilia.aspx

[xii] Per Justice Owens in Hughey v. JMS Development Corporation, Court of Appeals for the Eleventh Circuit, Case No. 94-402 docket://gov.uscourts.ca11.94-8402, or 78 F. 3d 1523 (1996)

[xiii] Ibid

[xiv] Per Hon Justice Frankel of the British Columbia Court of Appeal in 2008 BCSC 369 or 2010 BCCA 347.

[xv] Section 70

[xvi] The Electoral Act, 2010 (as amended), section 140 (1).

[xvii] 2008, 5 NWLR, (Part 1080), 227 at 437

[xviii] (2008) 41 WRN, 96 at 113 lines 15-20. See also Egonu v. Egonu (1978) NSCC 575; (1978) 11-12 S.C. 111,  113, Babatunde Ajayi v. Texaco (Nig.) Ltd. (1978) 9-10 S.C.1; (1987) 3 NWLR (Pt. 62) 577 at 27, Etim Ekpenyong v. Inyang Nyong (2003) 51 WRN 44; (1975) 2 S.C. 71 at 80.”

[xix] (1975) 2 SC, 65; see also Agu v. Odofin (1992) 3 SCNJ; AG, Cross River State v. AG, Federation (2005) All NLR 144

[xx] Reported in https://guardian.ng/features/law/supreme-courts-judgments-follow-law-not-sentiments/

[xxi] supra

[xxii] See http://www.nigeria-law.org/LawReporting/2008/January%202008/18th%20January%202008/Rt.%20Hon.%20Rotimi% 20Chibuike%20Amaechi%20v%20Independent%20National%20Electoral%20Commission%20&%20Ors.htm
[xxiii] supra, at page 343

[xxiv] already cited

[xxv] in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)

[xxvi] See http://blogs.timesofisrael.com/the-rule-of-law-is-a-double-edged-sword/

[xxvii] under Chapter V Part I of the Constitution of the Federal republic of Nigeria, 1999 (as amended)

[xxviii] [1924] 1 KB 256; [1923] All ER Rep 233

[xxix] (1985) 2 NSCC 827

[xxx] accessed at http://www.notable-quotes.com/e/epictetus_quotes.html

[xxxi] January 23, 1915 to December 7, 1985

[xxxii] 1958-1981

[xxxiii] accessed at http://thinkexist.com/quotes/like/fairness_is_what_justice_really_is/218156/

THE END

CONTEMPORARY TRAINING AT THE NIGERIAN LAW SCHOOL: AN INSIDER’S ACCOUNT

CONTEMPORARY TRAINING AT THE NIGERIAN LAW SCHOOL: AN INSIDER’S ACCOUNT[i]

The Nigerian Law School was set up by the Federal Government of Nigeria in 1962.[ii] The aim of the institution was to provide for the local needs of the then foreign trained lawyers and to provide the much needed practical training to those aspiring to become Legal Practitioners in Nigeria. The School started at Igbosere Street, near Obalende in Lagos State, Nigeria, and was later moved to Ozumba Mbadiwe Street in Victoria Island, Lagos, in 1969. In 1997, it was relocated to Bwari, a suburb of Abuja, Nigeria`s Federal Capital Territory (FCT). The need to accommodate the ever-growing number of law graduates from Nigerian universities (and their foreign counterparts desirous of becoming lawyers in Nigeria) led to the decentralization of the Nigerian Law School in 2001, with the creation of three additional Campuses -­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­— Enugu, Kano and Lagos —- in addition to the Headquarters in Bwari, Abuja. Two more Campuses were later created in 2011 in Yenagoa, Bayelsa State and Yola, Adamawa State. In all, the Nigerian Law School now has six fully functional Campuses —- (1) Bwari Abuja (the headquarters); (2) Agbani (Augustine Nnamani Campus), in Enugu State; (3) Bagauda, in Kano State; (4) Victoria Island, Lagos; (5) Yola, in Adamawa State; and (6) Yenagoa, in Bayelsa State.

The Council of Legal Education (CLE)[iii], the parent-body of Nigerian Law School, was established in 1962,[iv] and saddled with the responsibilities[v] for legal education of persons seeking to become Legal Practitioners in Nigeria and with such other powers and functions as the Council may consider expedient for the purpose of performing its main functions. In addition to having the Bachelor of Laws (LL.B) degree from a Nigerian University officially recognized, duly approved, by the Council of Legal Education, an applicant for an admission into the Nigerian Law School must also be a “fit and proper” person for admission into the legal profession. For example, an ex-convict, a member of a secret cult, a drug addict or peddler, or an armed robbery gang member, etc., would be considered not fit and proper, and accordingly disqualified, even if the person graduated from a university with a first class honours degree in law.[vi] Persons graduating from university law faculties outside Nigeria, but who aspire to become members of the Nigerian Bar, are made to undergo a three-month/four-month Bar Part 1 training course at the Law School headquarters, Bwari, Abuja, before being formally admitted into the mandatory Bar Part 2 (Bar final) programme; note that only students who are successful in the Bar Part 1 programme are considered for an admission into the Bar Part 2 course. The Bar Part 1 programme is aimed chiefly at introducing the “foreign” law graduates to basic aspects of the Nigerian legal system, such as Nigerian Land Law, Constitutional Law, Criminal Law, Law of evidence, Nigerian customary law, etc.

A student admitted into the Nigerian Law School could be posted to any of the six Campuses of the School for the Bar Part 2 programme. The School has prescribed certain conditions, which its students must satisfy in order to qualify for call-to-bar and enrolment as lawyers[vii] in Nigeria. These conditions include:

  • The aspirant must be fit and proper;
  • The aspirant must be successful at Nigerian Law School’s Bar Part 2 (bar final) examinations;
  • The aspirant must have participated in the mandatory three-dining (Law Dinner) terms at the Law School;[viii] and
  • The aspirant must be successful in the mandatory Portfolio Assessment exercise organised in the Law School;[ix]
  • The aspirant need now not be a Nigerian citizen.

As shown above, the bar aspirant’s country of origin or nationality is immaterial for purposes of his/her admission into Nigerian Law School. At the end of each bar part 2 academic session, the Council would recommend students who meet these requirements, among others, to the Body of Benchers[x] for call to bar. They are admitted into the Legal profession during call-to-bar ceremonies, usually held in Abuja, after which they are enrolled at the Supreme Court as Barristers and Solicitors of the Supreme Court of Nigeria. It needs to be emphasized that the concept of “fit and proper” is a continuous one. Accordingly, every aspirant to the Nigerian bar is expected to maintain a high standard of ethical conduct, failing which he may be disqualified from admission into the Law School, or, if already admitted, may be shown the way out. Even after call-to-bar, a legal practitioner who fails to observe the professional code[xi] of conduct would be made to face professional discipline and, if found guilty, could face serious punishments, such as warning, suspension from practice or his name could be struck out from the roll[xii], meaning that he ceases to be a member of the bar in Nigeria. The idea behind this is that the legal profession is a noble one; hence only those worthy in learning and character are expected to be admitted into, and to remain in, it.

The Bar Part 2 academic programme runs for one year, comprising three semesters or terms. It usually begins in October or November of every year and ends in August or September of the next. There could be variations, depending on the university calendar. The academic session usually begins with registration of students, which would last about one week, after which the students are made to undergo a one-week-long induction programme, designed to enlighten them on the systems and working of the School, the rules and code of conduct, as well as academic and professional expectations from both the students and the lecturers, among many other things, during and after the bar training. Teaching in the Law School under the New Curriculum[xiii] is practice-based, and is aimed at producing lawyers who would be in a position to measure up to contemporary benchmarks and international best practices in the legal profession. So, as part of the induction programme, there are also mock trial sessions organised for the students, and undertaken by the students themselves, under lecturers` supervision. This is usually tagged “induction mock trials,” and is held simultaneously in all the six Campuses. During the mock sessions, the student is made to play a part in simulated court trial proceedings, designed to inculcate in the student basic advocacy skills and courtroom decorum.

Formal classroom coaching in the Law School lasts twenty weeks, and a total of five subjects are taught, namely – Criminal Litigation, Civil Litigation, Property Law Practice, Corporate Law Practice, and Professional Ethics & Skills (formerly known as Law in Practice). Normal classroom interaction takes the form of one course per day for each of the five working days in a week. Criminal Litigation is taken every Monday for twenty weeks; Civil Litigation on Tuesdays; Property Law Practice on Wednesdays; Corporate Law Practice on Thursdays; and Professional Ethics & Skills on Fridays. All lecturers in each subject/department are expected to be in class at the same time, and participate, during every classroom interactive session on their course/subject. Each class starts with an overview of the topic for the day, followed by small group and individual presentations on various aspects of the topic, role-plays, debriefing, etc., depending on the department. But, generally, it is a skills-based, interactive and clinical method of learning that adequately prepares the graduates for their roles as lawyers and equips them to function optimally as barristers and solicitors. Every student is made to participate actively, while the teachers play the role of facilitators.

At the beginning of each academic session in the Law School, students in each Campus are broken into groups. Each group is expected to elect a Group Leader and an Assistant Group Leader, who preside over activities of the Group. A Lecturer is assigned to each group to act as the Group’s Mentor and Advisor, with the primary responsibility of supervising the Group’s (small group) meetings and assisting in resolving all issues arising from such meetings, etc., and generally ensuring a smooth functioning of the Group, in addition to disciplining erring members of the group.  In Lagos Campus, as in most other Campuses, about four or five days before each next class/lecture, the affected department sends to the students the Lesson Plan, Contents, and Outcomes for the class as well as scenario-based tasks for each of the student groups. Every student is expected individually to study the topic in advance. Then, on the eve of the class, each Group would hold a group meeting, during which the topic slated to be taught in class the following day is discussed extensively by members of the group. The tasks assigned to the group are also discussed and solved during the meeting. On the lecture day (the day after the group meeting), each group is expected to submit their solutions to the group tasks to the class lecturers/facilitators, not later than 9.00am; classes begin at 9.00am on each lecture day, and end at about 1.30pm, though in some Campuses, this may extend a little beyond 1.30pm — that is, till when the lesson contents are fully completed and outcomes satisfactorily attained, depending on the circumstances. Each Group must additionally submit an attendance record of students that were present and participated in the Group meeting the previous day, together with their registration numbers and signatures. In some departments, submission of Group tasks is done online, before the lecture day, to official emails of the department (or of lecturers in the department). Students who stay away from group meetings are made to get queries, or to suffer other punishments, in line with extant rules and regulations, for nonattendance. This continues every day, every week, in each subject for twenty weeks.

Attendance at classes throughout the twenty weeks of lectures is mandatory; students who fail to meet the mandatory 75 per cent attendance requirement are disqualified from sitting for the bar part 2 exams; in other words, their admission is deferred to the next session. Biometric record of attendance is taken twice daily, in the morning before class, and in the afternoon, immediately after class; in some Campuses, manual signing of attendance registers is still retained as a form of back-up. In the same vein, each student is expected to attend all classes in strict regulation dress[xiv], failing which the defaulting student is not allowed entrance into the lecture hall, and would consequently be adjudged absent from class for the day. Every student must be attired in a proper and dignified manner and abstain from any apparel or ornament calculated to attract undue attention to himself or herself.

At the end of the twenty weeks of lectures, students are sent out on court and law office placement (externship programme). Each student is placed in a court of law for about seven weeks and immediately thereafter in a Law Office for about five weeks. The objectives[xv] of the externship programme are to develop the extern’s lawyering skills; to make the extern understand various aspects of the legal system as well as the legal profession; to inculcate in the extern a sense of professional responsibility and values; and to develop the extern’s ability to reflect and learn from his or her experience. At the conclusion of the externship programme, each student is made to appear before a Portfolio Assessment Panel, the aim of which is basically to determine to what extent each student has applied himself or herself to the goals of the programme. Any student who scores below 70 per cent is disqualified from call-to-bar for that academic session, even though he is still eligible to sit for the Bar Part 2 Exams for the year. Depending on the nature of the problem that led to his or her failure, the student would be sent back to repeat the externship programme, and thereafter he/she would join students in the next academic year during their own portfolio assessment, and if successful, then, would be called to bar with them.

What is more? There are two other assessment tests administered on the students before the bar final examinations. Snap tests are held any time during the first and second terms (semesters), as each Campus may decide, and thereafter there is the Pre-Bar (mock) examinations which take place during the third and last term/semester, usually immediately after the end of portfolio assessment, depending on Management decisions. And then the Portfolio MCQ (Multiple Choice Questions) Examinations, which were introduced recently and are expected to hold immediately after the conclusion of the Externship Programme. The Portfolio MCQ examinations account for 20 per cent of each student`s Bar final examination assessment and grades in each course. Beside the aforesaid, there is another round of mock trial proceedings after the portfolio assessment. Participation by each student in the Mock Trials is mandatory. During the mock trials, several Judges and Magistrates from High Courts, Federal or State, and Magistrates` Court, located around the states surrounding each Law School Campus, are invited to preside over simulated court proceedings, the essence of which is essentially to perfect the students’ advocacy skills in preparation for real life practice as legal practitioners. Finally, for each Campus of the Law School, there is established a Law Clinic, operated by Law School students (under their lecturers’ supervision) and designed to, among other objectives, provide pro bono legal services to members of the public. At the end of all these activities, the students would sit for the Bar Final Examinations in all the five courses taught. And those who succeed in the exams and who have met all the other requirements, as stated above, would be recommended to the Body of Benchers for formal call-to-bar and enrolment as Barristers and Solicitors of the Supreme Court of Nigeria, while those who are unsuccessful would wait and prepare for Bar Final (resit) exams, which usually hold in or around April/May in every year.

All in all, it could be seen that vocational training at the Nigerian Law School under the New Curriculum is not just business as usual. The system appears somewhat challenging, and is designed to ensure that only serious-minded people are enrolled into the legal profession, which itself is rather tasking. Accordingly, success in the Law School depends much more on hard work and determination than on mere possession of talent; at the Nigerian Law School, hard work would beat talent if talent does not work hard. There is no room for anything goes; the School is not a dumping ground for the “never-do-wells,” who try to get enlisted into the legal profession through the back door. The good news, however, is that, with focus, determination and hard work, making a first class in the Law School is just as easy as reciting ABCD. Many have come, many have seen and many have conquered bar part 2. If they could do it, just anyone else can, with the right frame of mind and a positive attitude! Like life itself, bar part 2 has no limitations, except those limitations one decides to set for oneself.

END NOTES

[i]   Written by Sylvester C. Udemezue (UDEMS), Lecturer, Nigerian Law School, Ozumba Mbadiwe  Street, Victoria Island, Lagos, Nigeria. 0803 913 6749, 0802 136 5545. udemsyl@gmail.com,  mrudems@yahoo.com.
ii.  See http://www.lawschoollagos.org/about/. The School began operations in 1963 at No. 213A Igboseree Road, Lagos. See http://www.nigerianlawschool.edu.ng/#.
iii.  CLE is the parent body for the Nigerian Law School. In other words, the Nigerian Law School is owned and  supervised by the CLE. Note that the Nigerian Law School is not a juristic person; all actions by or against the Nigerian Law School must be instituted in the name of or against the Council of legal Education.
[iv]   S. 1 (1) of the Legal Education (Consolidation) Act, CAP L10 L.F.N. 2004.
[v]   Ibid, s. 1 (2) and s. 2(5).
[vi]   see Okonjo v. Council of Legal Education (1979) VOL. 1 FNLR 70; (1979) 3 C.A. 205; (1979) IFNIR 70.
[vii] In Nigerian, the term, “lawyer” is used interchangeably with “legal practitioner,” “counsel,” Solicitor” and  “barrister,” to refer to a person who is called to the Nigerian Bar and duly admitted to practice law in Nigeria. A university law graduate is not a lawyer, and is not qualified to practice law in Nigeria. See sections 2 and 22 of the Legal Practitioners Act Cap  L11, LFN, 2004, (as amended). Section 24 defines a “legal practitioner” as “a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
[viii] Every student must participate in the mandatory law dinners organised at the Law School. There are three in  all; all three are taken during the bar part 2 programme. During these dinners, students are expected to also observe a modicum of decent behaviour, decorum, table manners and protocol.                   
[ix]  At end of the mandatory Court and Law office attachments (now known as externship or placement),  each law school student is made to face a panel in what is now known as Portfolio Assessment, the aim of which is principally to determine whether the student was actively involved in the externship programme.
[x] The Body of Benchers is a body of legal practitioners of the highest distinction in the legal profession in Nigeria. Established under section 3 of the legal Practitioners Act, Cap  L11, LFN, 2004, (as amended), the Body responsible, inter alia, for formal call-to-bar of persons seeking to become legal practitioners in Nigeria.
[xi]  Rule 1 of the Rules of Professional Conduct for Legal Practioners, 2007 provides that a lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a Legal Practitioner. Rule 55 provides that if a lawyer acts in contravention of any of the rules in these Rules or fails to perform any of the duties imposed by the rules, he shall be guilty of a professional misconduct and liable to punishment as provided in Legal Practitioners Act, 1975 (Cap L11, LFN, 2004)
[xii] Term used to refer to the register, kept at the registry of the Supreme Court of Nigeria, which contains names of all legal practitioners in Nigeria, in order of call-to-bar and enrolment.
[xiii] New Curriculum is the name given to the new system of teaching and learning in the Nigerian Law School, which focuses on making the students the centre of the learning process. Students must be ready to prepare in advance for lectures, by undertaking reading assignments, exercises, tasks, role plays, etc as would be indicated by the tutors from time to time. Any student who fails or neglects to carry out assignments would be deemed to not have participated in the class. Students should not expect that tutors would come to the class and “fill” them up with knowledge by merely dictating lines of pages of books, statutes and law reports. Full participation in all class and pre-class activities are mandatory.
[xiv] “Regulation dress” for men comprises black, dark or grey suit or jacket over a black, dark or grey pair of trousers, black socks, black shoes and strict dress and white shirt and black tie (not bow tie); for women, it comprises Black or Dark-blue straight dress, skirt and blouse, or skirt and jacket with white blouse, black pair of shoes. Dress must have long sleeves and must be high to the neck and must at least be of knee length. For more on the drees code, see Rules 2.0, 2.1, and 2.2 of the Code of Conduct for Students as published on http://www.lawschoollagos.org/wp-content/uploads/2016/07/code-of-conduct-lagos.pdf. See also http://www.lawschoollagos.org/wp-content/uploads/2016/07/Code-of-Conduct-Abuja.pdf.
[xv]  The objectives of the externship programme are stated on the Placement Letter, signed by the Director-General of the Nigerian Law School and sent to each court and law office to which students are placed for the programme. It is also found on page 9 of the 2014 edition of the Externship Handbook for Students published on http://www.nigerianlawschool.edu.ng/notices/students2014.pdf.
The end

THE LAWYER`S PLACE IN MISMANAGEMENT OF MEDIA MISINFORMATION IN DEMOCRATIC NIGERIA

THE LAWYER`S PLACE IN MISMANAGEMENT OF MEDIA MISINFORMATION IN DEMOCRATIC NIGERIA

 I will start by repeating my earlier statement, in respect of which I think the brief comments following after are necessary, to further illustrate the statement, and disabuse our minds of all doubts as to what the true intentions of the writer is, and the reason behind the same:

 If any lawyer believes (without any doubt), and acts on, a mere allegation in the news or social media (which is yet obviously unconfirmed by any documents and unsubstantiated before any competent court of law), then that lawyer is hardly fit to be called by the name “Lawyer.” He simply should hand back all his law certificates to the institutions that awarded them, and move back to his village to join in the farming business.  My humble opinion.

The Canons of Legal Ethics, approved by the Canadian Bar Association, states in its preamble that “the lawyer is more than a mere citizen. He is a minister of justice, … and a member of an ancient, honourable and learned profession.” Lawyers, by the very special nature of their calling, have a responsibility to educate the public on the core demands of “law of evidence,” “due process,” and “rule of law.” Specifically, the lawyer has a duty to accentuate the difference between a mere “accusation,” a “speculation,” and verified information or statement. Suspicion alone, however strong or deep, it is said, is not sufficient to render an “accused” guilty. It is unfortunate to imagine that a qualified lawyer, on reading a story on a newsprint or on the social media, especially such that bothers on criminal allegations against another or other persons, would begin (relying solely on that story) to form opinions and draw definite conclusions that could only be validly and legally drawn from proven facts and legally established data.

If lawyers believe everything they read or hear in the news media, without asking for proof, what then do we expect the ordinary non-lawyer to do? This is my point. When issues in the news or media have to do with law or the legal, and especially touching on allegation(s) laced with criminal savor, unverified facts, mere stories, and unsubstantiated claims must be treated with absolute caution. A lawyer ought to handle with utmost circumscription any information in his possession in respect of which there are yet no sufficient bases. It would amount to a deliberate abdication of his responsibility for the lawyer to begin to propagate or disseminate such information in a manner that presents the same as already established. It’s for this reason that THOMAS PAINE once wrote (about America) in his famous book, COMMON SENSE: “…that the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.” Like America, Nigeria is a constitutional democracy founded on   respect for the rule of law. Section 1 (1) of the 1999 Constitution provides that “This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” In Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, Obaseki, JSC, stated that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world, … which profess loudly to follow the rule of law, gives no room for the rule of self help by force to operate.” (per Obaseki JSC  in page 1799, para. C – E). It is therefore obvious that the rule of law is not a vehicle by which private individuals, governments or government agencies can wield and abuse their powers; on the contrary, rule of law establishes principles that constrain the power of private INDIVIDUALS, governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules.

Besides, the Nigerian (criminal) legal system is accusatorial and adversarial, and not INQUISITORIAL in nature. Ours is a system in which the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured, and not on pages of newspapers or on social media or by mere RUMOUR. An accused person is thus presumed innocent unless and until his guilt is established beyond reasonable doubt before a court of law in line with the requirements of section 36 (5) of the Constitution. Hence, section 35 (1) (a) provides that every person shall be entitled to his personal liberty and RIGHTS and no person shall be deprived of such liberty EXCEPT in execution of the sentence or order of a court in respect of a CRIMINAL offence OF WHICH HE HAS BEEN FOUND GUILTY, and in accordance with a procedure permitted by law.” SIR WILLIAMS BLACKSTONE`s dictum that “it is better for TEN wrongdoers to go scot-free than for ONE innocent man to suffer unjustly” is appropriate in this circumstance. One major lesson from the Fourth Amendment to the Constitution of the USA is that it is better that the guilty sometimes go free than the citizens be subject to easy arrest.

Back here, to borrow from the words the famous English writer, journalist, DANIEL DEFOE (1659-1731), it is sad and shocking that, OFTENTIMES, WE HEAR MUCH OF PEOPLE’S CALLING OUT TO PUNISH THE GUILTY; YET VERY FEW ARE CONCERNED TO CLEAR THE INNOCENT. This contravenes the very system we’ve accepted for ourselves. The accusatorial/adversarial criminal justice system is carefully designed to ensure fairness and protection of the accused, lest people be wrongly accused or convicted; liberty and freedom are paramount and any reasons for taking them away must be compelling and apparent even in the face of unmitigated advocacy for the accused. The major object of the adversarial processes is, precisely, to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. As JUSTICE BENJAMIN CARDOZO said in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), “justice, though due to the accuser and the society, is due the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true.”

Writing on “FREEDOM AND THE CONSTITUTION,” JUSTICE WILLIAMS ORVILLE DOUGLAS once declared thus: “the function of the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; his function is to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial.” Mr Justice SUTHERLAND, while delivering the opinion of the Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, neatly illuminated the position and responsibility of the State and public prosecutors in the criminal justice system, when he declared thus:

“The … States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”

It is therefore reasonable to expect that fairness, even-handedness and above all respect for rule of law would characterize the behavior and standards of all of lawyers and persons involved in the business of law enforcement, public prosecution, arrest, searches, investigation or defence of persons accused of crimes. See the judgment of Hon Justice IBRAHIM MOHAMMED MUSA SAULAWA, delivered on January 4, 2007, in APPEAL NO.CA/PH/161/99 in the case of WHYTE V KWANDE. In all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land and not the reverse. In Nigeria, we ought to allow this time-honoured principle to sink well into our heads and hearts. The dictum of his Lordship, PIUS OLAYIWOLA ADEREMI, JSC, in the famous case of CHIBUIKE ROTIMI AMAECHI V. INEC & 2 Ors. (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227) gives a clear grasp of this fact.

Further, Rule 1 of the Rules of Professional Conduct for Legal Practitioners (RPC), 2007 imposes on every Legal Practitioner in Nigeria a perpetual duty “to uphold and observe the rule of law,” and to “promote and foster the cause of justice.” Also, in Rule 15, RPC, a lawyer is barred from asserting any position when he knows or ought reasonably to know that such “would serve merely to harass or maliciously injure another.”  He must also not make a false statement “OF LAW OR FACT.” Generally, the lawyer is not expected to “aid or participate in conduct that he believes to be unlawful even though there’s some support for an argument that the conduct is legal.”

How then, should a lawyer approach stories and speculations in the media, one may ask? In answer, may I humbly refer us to a statement made by SIR THOMAS JEFFERSON. In his “LETTER TO JOHN NORVELL, 14 June 1807,” published in the WORKS OF THOMAS JEFFERSON 10:417-17, Sir Jefferson has this to say about believing without doubts stories in newspapers:

 “To your request of my opinion of the manner in which a newspaper should be conducted, so as to be most useful, I should answer, ‘by restraining it to true facts and  sound principles only.’ Yet, I fear such a paper would find few subscribers. It is a  melancholy truth, that a suppression of the press could not more completely deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood. Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle. The real extent of this state of misinformation is known only to those who are in situations to confront facts within their knowledge with the lies of the day. I really look with commiseration over the great body of my fellow citizens, who, reading newspapers, live & die in the belief, that they have known something of what has been passing in the world in their time; whereas the accounts they have read in newspapers are just as true a history of any other period of the world as of the present, except that the real names of the day are affixed to their fables. General facts may indeed be collected from them, such as that Europe is now at war, that Bonaparte has been a successful warrior, that he has subjected a great portion of Europe to his will, &c., &c.; but no details can be relied on. I will add, that the man who never looks into a newspaper is better informed than he who reads them; inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods & errors. He who reads nothing will still learn the great facts, and the details are all false.”

DAVID D. FLOWERS answered the question thus:

“Mis-information is rampant in this great age of mass-information. While we have more access to learning than ever before in the history of the world, we’re actually getting dumber it seems. The amount of misinformation at everyone’s fingertips has lured us into a false sense of knowing. Whether it be information about science, politics, or theology, our society is suffering from an inability to research, process, filter, and apply. At the same time, we seem entirely oblivious to the zeitgeist (spirit of the age) that is nihilistic and libertine, making everything relative and subjective. And Satan himself rushes to blur our vision, stirring up the dust of confusion.”

Honestly, I think much of the challenges some Legal Practitioners in Nigeria encounter in this respect have more to do with their difficulty in being able to draw a clear line being between their duties as lawyers in society and their responsibilities to their clients or to political, social, religious or ethnic organizations or other interest groups to which they belong or whose interests they represent. Some Legal Practitioners easily overlook the fact that, irrespective of their political leanings or cultural, ethnic, religious or social predilections, they have a primary responsibility as lawyers to uphold the truth, promote the rule of law, and desist from rumor-mongering or propagation of propaganda. This duty is overriding and far supplants the lawyer`s duty to his clients as well as his desire to protect or advance any provincial interests he represents. It could therefore be concluded that promoting the truth, justice, due process and rule of law, is the most obvious and fundamental role for lawyers in a democracy, though this duty is not necessarily such a simple one. OKECHUKWU OKO has given an eye-opening account of how crucial, yet difficult, this role is in a fragile democracy such as Nigeria. In the introduction to his essay, “Lawyers in Fragile Democracies and the Challenges of Democratic Consolidation: The Nigerian Experience,” he succinctly describes it in the following words:

“Because of their status, special skills, and training, lawyers have the opportunity and indeed the obligation to help attain the nation’s political imperative of consolidating democracy. Unlike their colleagues in stable democracies, however, African lawyers face a phalanx of harsh realities and pragmatic constraints that severely limit their ability to deepen democracy, or even perform their traditional functions. Africa’s distinctive problems include political instability, social disequilibrium, insecurity, corruption, ineffective and inefficient public institutions, and a lack of a democratic culture. (see Okechukwu OKO, in 77 FORDHAM L. REV. 1295, 1295-96 (2009)).

Worthy of mention, at this juncture, is Mahatma Gandhi`s shining example of what the role of lawyer should be in society. On page 4 of the book, THE LAW & THE LAWYERS (by M.K Gandhi), it is reported thus about Mahatma Gandhi`s love of truth and justice:

If there was one characteristic more than another that stamped Gandhi as a man amongst men, it was his extraordinary love of truth. The Mahatma was an ardent and inveterate votary of truth. Truth, like nonviolence, was the first article of his faith and the last article of his creed. It was therefore no wonder that in his practice of the law, he maintained the highest traditions of the profession and did not swerve by a hair’s breadth from the path of rectitude and integrity. He was always valiant for truth, bold in asserting it in scorn of all consequence, and never sold the truth to serve the interests of his clients. He never forgot “that if he was the advocate of an individual, and retained and remunerated, often inadequately, for his valuable services, yet he had a prior and perpetual retainer on behalf of truth and justice.” It may truly be said of him that he practiced law without compromising truth.”

Gandhi`s attitude was only affirming Mr. Justice Crampton‘s earlier statement in R. v. O’Connell et al. (1844), 7 I.L.R. 261 at 313, where he had declared that he (the lawyer) must “ever bear in mind that if he be the Advocate of an individual, and retained and remunerated (often inadequately) for his valuable services, yet he has prior and perpetual retainer on behalf of truth and justice; and there is no Crown or other license which in any case, or for any party or purpose, can discharge him from that primary and paramount retainer.” Likewise, in an article titled, “Role of Lawyer in the Society: A Critical Analysis,” and published in The Clarion: A Multidisciplinary International Journal, Volume I, Number I, February (2012) pp. 148-52, the author, Balin Hazarika, has this to add about the proper role of lawyers in a democratic society:

“It is possible to have different views of what a lawyer does. Some may say that a lawyer is a business person, not unlike the barber, the doctor or the shop owner, providing a service to paying customers. Others will see a more public-abiding role for the lawyer, providing a service to paying clients but also maintaining an eye on the public interest, justice, and fairness of society. This difference in view will account for differing opinions about what a lawyer should do in a morally difficult position. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. In emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. A lawyer’s function therefore lays on him a variety of legal and moral obligations toward:…the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the power of the state and other interests in society.”

It is for the above reasons that this writer is of the firm view that if any lawyer believes,  acts on, or otherwise propagates a mere rumour or allegation in the news or social media without any efforts at verifying the truth or ascertaining the accuracy of such, by independent, disinterested evidence or methods, then such lawyer is hardly worthy of that name, “Lawyer.” He simply should hand back all his law certificates to the awarding institutions, and take to another occupation or profession, as he is only a round peg in a square hole for as long as he continues to belong to the legal profession.

Respectfully,

Sylvester C. Udemezue

(mrudems@yahoo.com)