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The Oracle

The Oracle: Integrity and Human Rights Protection in Nigeria (Pt. 1)

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By Prof Mike Ozekhome SAN

INTRODUCTION

MEANING AND CONCEPT OF INTEGRITY

“Integrity” is the qualifications of being honest and having strong moral principles moral uprightness. It is generally a personal choice to hold oneself to consistent moral and ethical standards.’ Koehn defined integrity as “the compassionate and receptive work of making the self whole and enduringly happy through critically and assiduously separating who we truly are from the false ego.”2 Integrity has also been described as: “adhering to what one believes to be right, especially when a price is paid in foregoing immediate gain.

Significant attention is given to the subject of integrity in law and the conception of law in 20th century philosophy of law and jurisprudence centering in part on the research of Ronald Dworkin as studied in his book, “Law’s Empire.” Dworkin’s position on integrity in law reinforces the conception of justice viewed as fairness

CONCEPT OF INTEGRITY
A value system’s abstraction depth and range of applicable interaction may also function as significant factors in identifying integrity due to their congruence or lack of congruence with observation. A value system may evolve over time,” while retaining integrity, if those who espouse the Integrity: Doing the Right Thing for the Right Reason. McGill-Queen’s University values account for and resolve inconsistencies. An individual’s value system provides a framework within which the individual acts in ways which are consistent and expected.
Integrity can be seen as the state or condition of having such a framework, and acting congruently within the given framework. In personal ethics, this principle requires that one should not act according to any rule that one would not wish to see universally followed. For example, one should not steal unless one would want to live in a world in which everyone was a thief. The philosopher, Immanuel Kant, formally described the principle of universal application in his categorical imperative.

The concept of integrity implies a wholeness, a comprehensive corpus of beliefs, often referred to as a worldview. This concept of wholeness emphasizes honesty and authenticity, requiring that one acts at all times in accordance with the individual’s chosen worldview. McFall, summarizing the essence of this philosophical integrity, believes that personal and literary rendering of personal integrity requires the individual exercising such to: (1) subscribe to some consistent set of principles or commitments and (2), in the face of temptation or challenge, (3) uphold these principles or commitments, (4) for what the agent takes to be the right reasons?

Sampford has suggested that integrity involves asking questions about our values, giving honest and public answers and attempting to live by those answers,” Similarly, Bloskie concluded that integrity simply: “implies a consistency or a coherence between one’s personal beliefs and behaviour” and is the result of a” coherence of values, aims and behaviours. Simons has also described integrity as: “the perceived degree of congruence between the values expressed by words and those expressed through action. So it is theoretically arguable that one
could have integrity and yet not be a good person.

Integrity is one of the top attributes of a great leader. It is a concept of consistency of actions, values, methods, measures, principles, expectations and outcomes. It connotes a deep commitment to do the right thing for the right reason, regardless of the circumstances. Choosing the right, regardless of the consequence, is the hallmark of integrity. For instance, Jurkiewicz and Giacalone, dissecting the importance of integrity in leadership as part of a values framework in workplace,
links it to respect, justice, responsibility and trust. Leaders with integrity walk the talk. They are consistent, honest, moral and trustworthy. Their deeds match their words. Leaders without integrity can’t be trusted – by their colleagues or the public and inevitably, that will lead to problems. In the protection of human rights, it is of great importance that leadership of the country trustworthy. They must apply the Constitution and laws dealing with human rights and civil liberties as they have voluntarily sworn to. To this end; Muel Kaptein opines that integrity starts with what politicians should know and what their position entails, since integrity demands knowledge and compliance with both the letter and the spirit of
the written and unwritten rules. So by ‘leading with integrity’, we are talking about behaviours in the leader that seek to yield the most moral outcomes, even when there is a cost (however short-term), to the leader, as a result.

WHAT ARE HUMAN RIGHTS?
Human rights are moral principles or norms.” which describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable’ “fundamental rights” to which a person is inherently entitled simply because she or he is a human being, and which are “inherent in all human beings” regardless of their nation, location, language, religion, ethnic origin or any other status. They are applicable everywhere and at every time in the sense of being universal and they are egalitarian in the sense of being the same for everyone. They require empathy and the rule of law and impose an obligation on persons to respect the human rights of others.”They should not be taken away except as a result of due process based on specific circumstances for example, human rights may include
freedom from unlawful imprisonment, torture, and execution.

HISTORICAL SOURCES OF HUMAN RIGHTS

Historical sources for human rights can be traced to past documents, particularly Constitution of Medina (622), Al-Risalah al-Huquq (659-713), Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789), and the Bill of Rights in the United States Constitution (1791). Early philosophical sources of the idea of human rights include Francisco Suarez, Hugo Grotius, Samuel Pufendorf, John Locke, and Immanuel Kant. The idea of human rights suggests that “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights. Many of the basic ideas that animated the human rights movement developed in the aftermath of the Second World War and the atrocities of The Holocaust culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948.

The United Nations General Assembly in 1948, partly in response to the atrocities of World War II. It is generally viewed as the preeminent statement of international rights and has been identified as being a culmination of centuries of thinking along both secular and religious lives Although the UDHR is a non-binding resolution, it is now considered by some to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other tribunals. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights as part of the “foundation of freedom, justice and peace in the world.” The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens.

Thought for the week

“One of the truest tests of integrity is its blunt refusal to be compromised”. (Chinua Achebe).

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The Oracle

The Oracle: There’s No Such Thing As “Diezani Loot”

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By Prof Mike Ozekhome SAN

INTRODUCTION

Nigerians always talk about wanting ‘technocrats’ to be involved in governance and that people with integrity should join politics. However, now and then we allow, and many a time, join the crowd to mob-lynch those who chose to serve. And we often do this insidiously, covertly and overtly, even when there is no concrete or even any iota of proof that such public officers ever stole, or abused their office. It is therefore surprising and of great concern to me, to see the level of vilification of an innocent Nigerian citizen who has not been tried and found guilty of any offence by any court of law whether in Nigeria or abroad.

THE GALACTICA YACHT

As Solicitors to the former Minister of Petroleum Resources, Diezani Alison-Madueke (DAM), we note with concern the recent deliberate attempt to link her with what has been described as a civil forfeiture of a yacht Galactica, the sale of which yielded $52.8,000,000 to the US government; which sum has since been repatriated to Nigeria. This is a clear example of the mischievous and cruel sport of tarnishing the image of the lady through a bouquet of consistent, persistent and unrelenting cocktail of falsehoods and misinformation. The purveyors of this line of misinformation term it “name-and-shame”. To sell the story, the architects ensured they attached Diezani’s name to a recovered yacht which is not in any way linked to her. They now falsely termed it “Diezani loot”. Nothing of the sort ever happened.

The yacht Galactica from information available in the public domain, was purchased by Kola Aluko who had used the vessel until he agreed to its forfeiture to the United States of America through the Justice Department. Our client maintains that the yacht Galactica was neither owned nor ever used by her. She avers sha has in fact never set her eyes on the yacht. Kola Aluko is a knowledgeable businessman who had been in business well before DAM came into office as Honourable Minister of Petroleum Resources (HMPR). The only basis for linking DAM to the said yacht is the false narrative that the Strategic Alliance Agreements (SAAs) entered into between Kola Aluko & Jide Omokore’s Atlantic Energy companies and NNPC were allegedly corruptly awarded to the said companies by DAM.

THE GALACTICA YACHT STORY IS FALSE

The fallacy of DAM’s involvement in an alleged corrupt contract has long been debunked in Charge No. FHC/ABJ/CR/121/2016 Federal Republic of Nigeria vs Olajide Omokore & Others.

In that case, the Federal High Court, coram Hon. Justice Nnamdi Dimgba (now of the Court of Appeal) held that the Strategic Alliance Agreements (SAAs) between NNPC and the Atlantic Companies were validly entered into between the said companies and NNPC. Furthermore, the said companies and its chairman were discharged and acquitted of any offence in relation to allegedly obtaining the contract or monies realized from it through false representations. They were also freed of the offence of money laundering in relation to the said contracts. The case clearly established that the said contracts were properly awarded by NNPC and that the said award followed due process.

To characterize such a forfeiture of a yacht as being linked to DAM simply on account of the SAAs which have since been adjudged and held to have been validly entered into between NNPC and the said companies, is completely preposterous.

DAM WAS NEVER A PARTY TO THE SAAs

Our client states that she was never a party to the contract process, or contract negotiations, or contract selection for the award of the Strategic Alliance Agreements (SAAs) between NNPC and Atlantic Energy Ltd. That contract process, like all others, was handled solely by the NNPC which followed its usual contract award process to the letter.

There was therefore nothing untoward, whatsoever and howsoever about the SAA award process. DAM states as a matter of fact that the terms of the Atlantic Energy SAAs were made even more stringent for the Atlantic companies and a much better deal for Nigeria, than the SSAs which were entered into between the NNPC and the ENI-AGIP Multinational a few years earlier.

DAM MERELY ACTED WITHIN HER STATUTORY RESPONSIBILITIES

It was our client’s statutory duty as the HMPR at the final stage of a contract process, to make final signatory and approval on behalf of the Ministry of Petroleum Resources (MPR). However, NNPC would, as always, have first carried out all due diligence which include necessary, operational and contractual checks and procedures.

In line with due process and as statutorily required, DAM merely appended her signature to the final approval request letter which was forwarded to the office of the HMPR by the GMD-NNPC. As due process had already been duly followed, the SAAs were signed off by her as required by law. DAM did exactly the same every month for each of the hundreds of contracts that she had to sign-off on without any preferential treatment. And that was an integral part of her statutory responsibilities as HMPR. DAM thus followed due process to the letter. She never engaged in the operational process of negotiating those contracts as this process was entirely and without exception, within the remit of the NNPC.

DAM WAS NOT INVOLVED IN THE NON-PAYMENT OF CASH CALLS

Let us be very clear about this: the issues of non-payment of the cash-calls that later arose subsequently in the Atlantic Energy SAAs had nothing to do with the initial contract award. Those issues arose as a direct result of the manner of operational implementation and supervision and had nothing to do with DAM, whatsoever. She was never involved. DAM states that in April 2014, as soon as she was made aware by an external multinational head that there was an issue regarding the Atlantic Energy SAAs, she took strong and direct action immediately by alerting Mr. President and directing, in writing, to the Permanent Secretary (PS), Ministry of Petroleum Resources (MPR) and the GMD-NNPC, that an immediate two-week investigation must take place. Following the resulting investigative report, DAM again directed, in writing, to the PS, MPR and the GMD-NNPC, with Mr. President’s knowledge and approval, that a process for the recovery of the unpaid cash-call should immediately be put in place.

DAM NEVER SOLD OFF OIL BLOCKS CONTAINED IN THE SAAs

It must therefore be emphasized that although a portion of the media severally unfairly vilified and accused DAM of purportedly selling off the oil blocks contained in the SAAs to Atlantic Energy, she never did as she was not party to it.

EARLIER WILD ALLEGATIONS AND THE PET PHRASE “DIEZAN-LOOT”

This is not the first time these types of outlandish allegations have been levelled against DAM. Sometime ago, she was widely accused of owning a diamond-studded bikini underwear allegedly valued at $12,000,000!. Subsequently, this wild and baseless allegation had to be denied by the then Chairman of the EFCC at the time, Abdulrasheed Bawa, as it was not only false but preposterous. Similarly, when certain people were accused of bribing INEC officials, the monies were unjustifiably linked to DAM and labelled, as is always mischievously done, ‘Diezani loot’ when all that she did was to merely coordinate the raising of campaign funds for the then ruling party at the time and readily handed over same to the party, which then determined how the said funds were disbursed.

CRIMINAL CHARGES WITHOUT ANY LINKAGE

DAM was gleefully named on the face of the charge filed against Atlantic Energy in Charge No. FHC/ABJ/CR/121/2016 Federal Republic of Nigeria vs Olajide Omokore & Others. In this said charges preferred by the EFCC in respect of an alleged bribing of some INEC officials, DAM was never made a party to the said charges to enable her defend herself. She even applied to be joined as a Defendant to those charges so that she could clear her name. Yet, the application was strangely opposed by the same EFCC that filed the charge, leading to the striking out of her name from the said charge.

HOW THE WORD “LOOT” EXCITES MANY EVEN THOUGH FALSE

In spite of these clear facts which were available in the public domain, DAM has continued to be the subject of grave allegations that are demonstrably false and ill-motivated. This, notwithstanding the harrowing experience of cancer related health challenges she has gone through in the last ten years of her life. It appears that nothing excites the purveyors and peddlers of these orchestrated misinformation and falsehood more than spinning and heaping all forms of false allegations on her, no matter how palpably disingenuous and unbelievable. It satiates their overbloated egos to tar her with the paint brush of shame.

DAM WAS UPRIGHT

DAM maintains that she remains the only Petroleum Minister to have left behind a staggering sum of $3.6 Billion in the NLNG Account (in the hope of ensuring continuity in the development of the critical Gas sector), for the incoming Buhari administration. This sum saved for the development of the Critical Gas Sector was summarily spent and disbursed by the Buhari administration immediately upon their assumption of office.

THE SENSITIVE NATURE OF THE HMPR

She informs us that her position as Federal Minister of Petroleum Resources was an extremely sensitive one which had before then and till now been occupied by the Presidents of Nigeria in their personal capacities. This position came not only with its burdens, but also with special privileges which have since become the linchpin and cornerstone of the underlying sundry accusations against her.

DAM HAS BEEN INVESTIGATED FOR 10 YEARS

For the avoidance of doubt, DAM has been kept under full investigation in the United Kingdom by the UK authorities, in collaboration with the Nigerian authorities, since 2nd October, 2015 (almost 10 years ago and just one week after she completed a grueling 8-month series of chemotherapy treatments for Triple Negative breast cancer, during which time she went into a coma, escaping death by the whiskers).

DAM HAS BEEN DEPENDING ON GOODWILL FOR HER SURVIVAL

It was only recently that DAM was actually charged on the 2nd of October 2023, having been held in the United Kingdom for a period of over eight years, whilst their NCA (National Crime Agency) conducted investigations on her. She had no work papers and so could not work to fend for herself. She has not even been allowed to leave the UK from the 2nd of October, 2015 till date. Thus, for nearly ten years, she has had to depend entirely on the goodwill of a few friends and family members to survive.

CERTAIN THINGS TO NOTE ABOUT DAM

DAM believes the following facts are worth noting for posterity:
a. DAM was the most ever senior black woman in the African Oil and Gas Public Sector (between 2010 & 2015).
b. DAM was the first female Executive Director of Shell Petroleum Development Company in its entire history in Nigeria; a position she did not lobby for. She was spotted, recognised and appointed through her sheer dint of hard work and sense of professionalism by the relevant Global Heads of Shell in the Hague, Netherlands,
c. DAM has so far been the first and only female Petroleum Minister in Nigeria’s history. She never lobbied for this position. She states that she was actually nominated without her knowledge.
d. DAM has been the first and only female President of OPEC in the organization’s entire history since its founding in 1960. She also did not lobby for this lofty position.
e. DAM was nominated for and served in various federal ministerial positions under two separate Presidents, positions she never lobbied for.

CONFIRMATION BY THE PAST EFCC CHAIRMAN THAT DAM IS INNOCENT

DAM informs us that on two separate occasions, the immediate past EFCC Chairman, Abdulrasheed Bawa, confirmed to her lawyers that no funds from the coffers of the Federal Government of Nigeria were ever stolen or; and that none have been traced to her.

DAM’S TRAVAILS ARE DRIVEN BY MERE SPECULATIONS AND PUBLIC LYNCHING MINDSET

DAM states that her travails over these years have been based on unfounded speculations and vile allegations that she obtained unlawful gifts and favours from operators within the petroleum industry. She had never been accosted or charged with stealing or pilfering government money. These matters of obtaining unlawful gifts and favours are now subject of proceedings against DAM in the United Kingdom.

OUR PLEA

The process of this UK proceedings should be allowed to take its course and the purveyors and peddlers of outrightly false, unfounded, defamatory, unintelligent and indefensible narratives should find better use of their time.

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The Oracle

The Oracle: A Critique of the New Supreme Court Rules and Sundry Legal Anomalies (Pt. 2)

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By Prof Mike Ozekhome SAN

Introduction

The first part of this intervention examined the constitutional authority for enacting the new Supreme Court Rules. It then asked what difference the new Rules made, with specific reference to the issues of costs, right of audience, conditions of appeal, its prohibition of stay of proceedings in interlocutory appeals and elections. In this week’s feature we shall discuss other anomalies of the enabling statute of the Supreme Court Rules vis-a-vis the 1999 Constitution as well as related statutes such as the Notaries Public Act. I then questioned the legitimacy of legal practitioners acting as Receivers/Managers. Is it proper or does it constitute a prohibited trade or business under Order 7 of the Legal Practitioners Rule of Professional Conduct, 2023. To find out, please read on.

Other Anomalies

Beyond the foregoing, it does appear that even the enabling statute of the apex court (apart from the Constitution, that is) the Supreme Court Act, Cap. S. 15, LFN 2004, also contains at least one provision which appears to be somewhat at odds with the Constitution. That provision is Section 11 of the Supreme Court Act which provides that “a single justice of the Supreme Court may exercise any power vested in that court other than the final determination of any cause or matter, provided that-
a) In criminal cause or matter, if any justice refuses an application for the exercise of any such power, the person making the application shall be entitled to have his application determined by the Supreme Court; and
b) In civil causes or matters, any order, direction or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the Supreme Court”.

It seems that this provision contradicts those of Section 234 of the 1999 Constitution which provide that “for the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, the Supreme Court shall be duly constituted if it consists of not less than five Justices of the Supreme Court; provided that where the Supreme Court is sitting to consider an appeal brought under Section 232(2)(b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with section 232 of the 1999 Constitution, the court shall be constituted by seven Justices”.

However, apart from section 11 of the Supreme Court Act, yet another anomalous provision, vis-à-vis those of section 232 of the 1999 Constitution as aforesaid, in my view, is constituted by section 14 of the Notaries Public Act, 2023, which stipulates as follows, inter alia:

“When inquiring into a complaint against a Notary Public, the Supreme Court, by the powers vested it in accordance with the provisions of this Act, shall be duly constituted when exercised by any three Justices of that court present and sitting together;

The decision of the majority of the three Justices shall be taken to be the decision of the Supreme Court”.

In this particular case (i.e., the Notaries Public Act), it does appear that the anomalies inherent therein are more fundamental, as it is not at all clear where the National Assembly acquired the authority to empower the Chief Justice to ‘anoint’ (the Act uses the word ‘appoint’) a legal practitioner as a Notary Public. The Constitution is certainly silent on it and I don’t think it can be reasonably inferred from the provisions of Item 68 of its Exclusive Legislative List.

One would have thought that such ‘ennoblements’ ought to be within the purview (or scope) of the powers of the Legal Practitioners Privileges Committee, which as its name suggests, is a multi-member body, instead of the case with Notaries Public, whose appointment is at the sole discretion of the Chief Justice. This is certainly odd.

Be that as it may, however, as I previously submitted, the anomalies in the Notaries Public Act extends beyond the forgoing. They include the oaths which newly-appointed Notaries Public are obliged to take, as contained in the First Schedule to the Act. The anomaly in this provision is that once again, the Constitution is silent on any power or authority (express or implied) of the National Assembly, to enact any provision requiring the taking of oaths, either by Notaries Public or any other person whosoever.

This is because, the Constitution appears to have covered that field vide the Seventh Schedule thereto. Needles to say, of this view is correct, it means that the Oaths Act is invalid, null and void, as it would be ultra vires the National Assembly. In other words, the only oath which persons occupying (or about to occupy) official positions other than those mentioned in that Schedule are obliged to take is the Oath of Allegiance contained therein. I hope I am wrong.

Can Legal Practitioners Be Receivers?

Yet another ominous legal anomaly is the age-long practice of Legal Practitioners acting as Receiver/Managers (usually appointed by banks) to manage the business and assets of their debtors and to recover debts owed to such banks. For a fee (usually a percentage of any debts actually recovered by the Receiver). Such appointments are usually made pursuant to specific clauses in Mortgage Debentures, All-Assets Debentures or Debenture Trust Deeds. Many (if not all) such legal practitioners so appointed are invariably engaged in active legal practice and they happily combine both occupations, having the best of both worlds and smiling all the way to the bank to such an extent that they are the envy of many of their professional colleagues who are not so privileged to wear two hats, as it were.

I believe that, to the extent that such legal practitioners are remunerated for rendering or performing such services as Receivers/ Managers, their status is somewhat ambiguous, as they are operating in what is, at best, ‘uncharted territory’. This is because the express (if not implied) provisions of Order 7 of the Legal Practitioners Rules of Professional Conduct, 2023 (and its previous iterations) appear to preclude them from combining the two. For ease of reference, they are set out below, viz:

“7. (1) Unless permitted by the General Council of the bar (hereinafter referred to as the “Bar Council”), a lawyer shall not practice as a legal practitioner at the same time as his practice any other profession.
(2) A lawyer shall not practice as a legal practitioner while personally engaged in –
(a) The business of buying and selling commodities;
(b) The business of a commission agent;
(c) Such other trade or business which the Bar Council may from time to time declare to be incompatible with practice as a lawyer or as tending to undermine the high standing of the profession.(3) For the purpose of this rule, “trade or business” includes all forms of participation in any trade or business, but does not include –
(a) Membership of the Board of Directors of a company which does not involve executive, administrative or clerical functions;
(b) Being secretary of a company; or
(c) Being a shareholder in a company”.

Conclusion

Well-intentioned as the innovations of the new Supreme Court Rules undoubtedly are, it ought not to blind us to their inherent anomalies, some of which are outlined above. It is in this light that one cannot but observe that the new rules (particularly, its prescriptions for the summary termination of appeals by the court (suo motu) for non-compliance with conditions of appeals, as well as denial of right of audience to Counsel who fail to pay costs awarded against them) appear to elevate the rules above the need to do substantial justice.

This is worrisome, as it is something of a throwback to the days of old when justice was often sacrificed on the altar of rule-backed technicality and is rather unfortunate, as it bears remembering that, as the apex has repeatedly held:
“(Although) rules of court are meant to be complied with, (however) the principal object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights . . . Rules of court are made to help the court in its primary duty and objective, namely, to do justice to the parties by deciding on the merits of their case. Those rules are mere hand-maids to justice and, inflexibility of the rules will only serve to render justice grotesque. It will therefore be undesirable to (enact) rules which will merely enable one party to score, not a victory on the merits, but a technical knockout at the expense of a hearing on the merits… If strict observance of a rule of practice will produce injustice, then a court of justice will naturally prefer doing justice to obeying a rule which is no longer an aid to justice.”

See NNEJI v CHUKWU, supra, @ pg. 207per Oputa, JSCJ. I need say no more.

Pointing out the forgoing anomalies is our bounden duty as Counsel, because, as observed by the Supreme Court in IFEZUE Vs MBADUGHA (1984) 1 SCNLR 427 (quoting, with approval, from ST. JOHN SHIPPING CORP v J. RANK LTD (1975) 1 & B 267 @ 282) “One must not be deterred from enunciating the correct principle of law simply because it may have startling or even calamitous results”.

(The end).

Thought for the week

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people”. (Elena Kagan).

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The Oracle

The Oracle: A Critique of the New Supreme Court Rules and Sundry Legal Anomalies (Pt.1)

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By Prof Mike Ozekhome SAN

Introduction

The immediate past Chief Justice of Nigeria (Hon. Justice Ariwoola) ought to be remembered for the parting gift of sorts which he handed to the court, lawyers and litigants in the form of the Supreme Court Rules, 2024. Enacted on the eve of his departure in September 2024, the rules have been broadly welcomed by stakeholders for harmonizing the disparate rules of practice and procedure applicable in that court (the last iteration of the rule, in 1985 and the sundry practice directions which have been added to it since then) into what is hopefully a harmonious whole. Is that hope misplaced or is it deserved? Are the rules (or any of their provisions) problematic, anomalous or even out rightly ultra vires (and therefore invalid) vis-a-vis relevant standards and norms such as the Constitution, the Legal Practitioners Act and the African Charter on Human & Peoples rights? Let us find out, but first, the usual preliminaries.

Practice And Procedure of The Supreme Court Of Nigeria

By virtue of section 236 of the Constitution, the Chief Justice of Nigeria is empowered to make rules of practice and procedure applicable in the Supreme Court. Those powers and however not at large, but are to be exercised subject to the provisions any Act of the National Assembly. That statute is the Supreme Court Act, section 9 of which provides that “subject to the provision of any other enactment, the practice and procedure of the Supreme Court shall be in accordance with this Act and rules of
court.”

What Difference Do The New Rules Make?

As previously noted, the new Supreme Court rules (SCR) have been broadly welcomed by all and sundry, given the public’s perception that they introduced innovations to the court’s justice delivery tool-kit. As ever, however, the devil is in the detail and we shall see to what extent, if any, the rules live up to the hype. In this regard, I believe at least three of the supposed innovations of the rules give room for not a little concern. I am referring here to the provisions dealing with costs, right of audience, conditions for prosecuting appeals and restrictions within the exercise of such rights by a party. We take them seriatim.

Costs

The new Rules provide that not only will counsel who supposedly engage in abuse of court process be penalized with punitive costs to be paid personally by such counsel (including those acting for state/federal governments and public institutions), any counsel who defaults in making such payments will not have the right of audience in any superior court in Nigeria. I believe this is problematic for at least two reasons. To start with, the right to counsel of one’s choice- in criminal cases- is a fundamental right under section 36(6)(c) of the constitution. To that extent, it is clear that to deny a suspect or accused person of that right on the ground that the counsel is in default of certain costs awarded against him would violate this constitutional right (which, by the way, is also guaranteed under Article 7 of the African (charter).

Beyond that, however, the Legal Practitioners Act also provides (in section S thereof) that a legal practitioner shall have the right of audience in all courts of law in Nigeria. That right is subject to only one condition under the Act: payment of annual practicing fee by such legal practitioners. The Act is silent on any default by a legal practitioner to pay costs as a ground for denying him audience in court: expressio unius est exclusio alterius: the express mention of one thing in a statute implies the exclusion of others, which might
otherwise be included. See ATT-GEN. OF THE FEDERATION v
ABUBAKAR (2007) ALL FWLR pt. 375 pg.405 @553B

Right of Audience

Yet another problematic provision of the rules is the one which limits the number of Counsel appearing in any given case before the apex court. Under the new rules, this is pegged at 6, including a senior advocate where there are more than one Senior Advocate, the number of Counsel is pegged at a maximum of 8. I believe this is an undue fetter on a party’s right to Counsel of his or her choice, which, criminal cases, is a fundamental right. No rule of court can abridge or curtail a fundamental right under the Constitution or the African Charter.

Not even an Act of the National Assembly. The Constitution is supreme and, next to it, is the African Charter. See ABACHA V FAWEHINMI (2000) 6 NWLR pt.660 pg.228 @315 and IGP v ANPP (2007) 18 NWLR pt. 1066 pg. 457@500C.

Furthermore, however, this particular provision of the new rules is too sweeping as it extends beyond the Supreme Court to all superior courts of record in Nigeria. By virtue of section 6(5) of the Constitution, such courts includes the Court>of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, the High Court of a States, Sharia Court of Appeal of the FCT, the Sharia Court of Appeal of States, Customary Court of Appeal of the FCT and of the states. I believe it is anomalous for this provision of the new rules to purport to apply to these other courts because it is trite law rules of practice and practice enacted for one court only apply to that court and cannot apply to that court and cannot apply to other courts: See NNEJI v CHUKWU (1988) 3 NWLR pt. 81 pg. 184 @205 per Oputa, JSC. A head of court is only empowered to enact rules of procedure applicable to that court and no other: TUKUR v. GOVERNMENT OF GONGOLA STATE (1988) 1NWLR Pt. 117 pg. 39 @50

Conditions of appeal

Another anomalous provision of the new rules, in my view, is the requirement for a prospective appellant to provide a bon d or guarantee that he will diligently prosecute the appeal. This is novel stipulation is a condition for hearing the appeal. A similar provision is the requirement of an undertaking by the appellant to pay damages to the respondent in the event that the appeal is unsuccessful. I believe that both stipulations are problematic as they impose undue fetters on the exercise of the right of appeal. The apex court has repeatedly frowned upon such restrictions on the right of access to court. See UGWU v ARARUME (2007) 12 NWLR pt. 1048 pg. 367 @ 450 per Tobi JSC, where it was held as follows:
“Right of access to court is a constitutional right, which is guaranteed in the constitution, and no law… can subtract from or derogate from it or deny any person of it.” See also GLOBAL EXCELLENCE Vs DUKE (2007) 16 NWLR pt 1059 pg.22, and Article 7 of the African Charter on Human and Peoples rights.

No stay of proceedings in interlocutory appeals

On the stipulation of the rules that the apex Court will never grant applications for stay of proceedings in interlocutory appeals, the apex Court appears to have departed from its long standing tradition of not denying a party “(be he the appellant or the respondent) the opportunity of being heard for fear that such attitude might cause a temporary delay in the disposal of the case.” See NNEJI v CHUKWU, supra, @ page 200, per Wali, JSC.

Such a shift in the policy of the Apex Court is worrisome because it transcends the practice and procedure of the court and impinges on the fundamental issue of access to court, fair hearing and to have one’s cause heard, all of which are implicitly recognized and guaranteed under the constitution and the African charter as aforesaid.

Elections

The provisions of the rules in election related appeals are also problematic for the simple reason that election matters being sui generis, the relevant prescriptions are to be found in the Electoral Act, 2022, specifically, section 140 thereof, which provide as follows:
“(1) The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be as set out in the first schedule to this Act;
“(2) The president of the court of appeal may issue practice directions to the-
(a) Court of Appeal in respect of pre-election and post-election

(b) Election tribunal, in respect of post-election matters”

Curiously, however, the Act is silent on the Chief Justice of Nigeria.

In other words, it doesn’t confer a similar power on the CJN in respect of electoral appeals to the apex court, as it does on the President of the Court of Appeal. Whether it is deliberate or out of oversight is hard to fathom. What is clear is that, by virtue of the combined provisions of Items 22 and 68 of the Exclusive Legislative List, read along with Paragraph 2(b) or Part III of the Second Schedule to the Constitution, the National Assembly possesses the exclusive power to legislate on the practice and procedure in election-related litigation. To the extent that the Assembly has not delegated that power to the CJN in the same way as it did to the president of the Court of Appeal, the implication is that the Assembly did not intend to do so, but rather to reserve it to itself in appeals at the Supreme Court in electoral matters, on the maxim expressio unius est exclusion alterius aforesaid and that the provisions of the first schedule to the act have covered the field in such appeals at the apex court. The upshot of this is that the prescriptions of the new rules in electoral appeals at the apex court are ultra vires, the Hon. CJN, with the greatest respect. See ATTORNEY-GENENERAL OF ABIA STATE Vs. ATTORNEY-GENENERAL OF THE FEDERATION (2002) 6 NWLR Pt. 763 pg. 264 @ 369 & 391, Per Kutigi, JSC and Uwais, CJN. Respectively. (To be continued).

Though for the week

“The Supreme Court is the last line of defense for the separation of powers and for the rights and liberties guaranteed by the Constitution”. (Brett Kavanaugh).

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