EXTENDED INTERVIEW: MEGAN CHAPMAN GIVES MORE INSIGHTS ON THE DISPLACEMENT OF THOUSANDS OF INHABITANTS OF OTODO GBAME COMMUNITY BY THE LAGOS STATE GOVERNMENT.

Megan Chapman is a Co-Director, Justice & Empowerment Initiatives – an Organisation that stands for the empowerment of the poor and marginalised individuals and communities in conjunction with Nigerian Slum/Informal Settlement Federation. She is a lawyer and a scholar of high repute. Megan holds a J.D. from American University Washington College of Law (summa cum laude), where she was a Public Interest/Public Service scholar and the co-Editor-in-Chief of the Human Rights Brief. She holds a B.A. in history from University of Chicago (high distinction). On 23 March, 2017, Megan spoke with Stephen Azubuike, throwing more lights on the issues of displacement of thousands of inhabitants of Otodo Gbame Community (an ancestral Egun fishing settlement in Lekki) by the Lagos State Government in collaboration with the Nigeria Police as well as the threat of forcible eviction faced by other waterfronts in Lagos. In this Special Feature of Stephen Legal Blog, we bring to you details of the Extended Interview below.

We understand that on 9th of October 2016, the Lagos State Government (LASG) announced the intention of the Government to demolish “shanties” along waterfronts across the State and gave the residents 7 days to vacate the areas. Prior to this announcement, was there any form of official notice issued by the LASG?

No. There was none. Even the 7 days purported notice that was announced was unreasonably short and imprecise – it did not name specific communities or provide any statutory basis for the threatened demolition. As a result of the announcement and given that the threat of demolition was broad, covering many areas, we identified at least 40 communities and estimated over 300,000 residents that might fall under the threat and be at risk of eviction. The word “shanties” used by the Government in referring to these waterfront communities is rejected. The word has no legal definition. Moreover, it is derogatory – what may look like a shanty to one person is anothers home.

So, it was this threat of eviction that led to the filing of the fundamental rights action at the Lagos State High Court, Lagos Division, on behalf of some of these communities against the LASG and the Nigeria Police in – Suit No. LD/4232MFHR/2016 – Akakpo  Agemo & 38 Ors v. A. G. Lagos State & 3 Ors?

Yes. However, we did not immediately go straight to Court. Prior to the filing of the suit, 20 threatened communities wrote a letter demanding retraction of the eviction threat made by the LASG. They also staged two peaceful protests but received no attention from the Governor. The suit was filed when the Lagos State Government issued a press statement indicating its intent to continue with the threatened action.

We are aware that following an urgent application for injunction filed along with the suit, the Court made an interim order of injunction  on 7 November, 2016 restraining the the LASG and the Nigeria Police from carrying out any demolition of the waterfronts. Is this Order still subsisting?

In a matter brought by way of Fundamental Rights (Enforcement Procedure) Rules, 2009, such an interim order lasts until the hearing of the substantive suit. Sadly, even in the face of the subsisting Order, between 9-10 November, 2016 the LASG in collaboration with the Police, in outright disregard of the Court Order demolished the Otodo Gbame Community and forcibly evicted over 30,000 residents by way of arson and the use of excavators. About 11 people died as a result of the incident including children who drowned in the water while running for safety. The first phase took place in the morning of 9 November 2016 in which a violent arson attack facilitated by the police destroyed about a third of the community. Then, after midnight, in the wee hours of 10 November, an excavator came back accompanied by the police and continued demolishing the remaining two-thirds of the community through the night until mid-day, leaving only water structures unaffected.

Which other community/communities aside Otodo Gbame (and Ilubirin demolished on 15 October 2016) has suffered any demolition fate since the recent eviction threat?

None, since the eviction threat by the LASG. However, there have been others in the past.

The LASG denied responsibility for the fire outbreak of 9/11/2016 at Otodo Gbame   claiming that the fire was as a result of the ethnic clash that occurred between the Egun and Yoruba residents within the Community. What is your take on this?

This is not true. Note that this denial came a week after the demolition, after a lot of outcry. Although we cannot say precisely what started the fire, what is clear from all eyewitness testimonies was that the Police were helping the fire to spread and stopping resident from quenching the fire. Some officers were heard saying the fire must not be put out, that the whole place should burn. After the first phase of arson, the Police PRO also stated that the Lagos State Building Control Agency (LASBCA) under the Ministry of Physical Planning and Urban Development was scheduled to subsequently come to the area to demolish what was left of the community. It was less than 6-7 hours after this announcement that an excavator showed up in the community and began demolishing in the middle of the night. A colleague from Amnesty International also called the PRO of LASBCA on 10 November and asked if they were involved in the demolition and he said, Of course.All this evidence supports that the Police and the Government were responsible for the forced eviction.

Demolitions of otodo gbame

Community demolition

In fair consideration of the need to protect the fundamental rights of citizens and the corresponding responsibilities of the Government to ensure the welfare and safety of the people, the Court by its Ruling of 26 January, 2017 directed parties to explore amicable settlement through mediation at the Lagos Multi-door Courthouse (LMDCH) and ordered that status quo be maintained. What are your expectations at the LMDCH?

It is hard to say right now. The communities have always believed in and requested for dialogue. In fact, before the renewed demolitions in Otodo Gbame, we were feeling optimistic. There was a session at the LMDCH on 9 March, 2017. The next date is 29 March, 2017. However, we do not know what will happen on that date given the recent demolition activities carried out by the LASG in Otodo Gbame on 17/3/2017 and 21/3/2017 in violation of the court order that the parties should maintain the status quo. On 22/3/2017, another attempt at demolition was made but the people resisted them.

It appears the LASG has not denied the subsequent demolition exercises at Otodo Gbame (even though the  Order of injunction and maintenance of status quo subsist). In a recent report however, the Government through the Commissioner for Information and Strategy, Mr. Steve Ayorinde, denies flouting any Court order and argued that since the Order for maintenance of status quo subsists, it would be unacceptable for the residents to return to the area or to erect structures and perpetrate unsanitary and environmentally dangerous conditions. What do you say about this and the interpretation by the Government?

Status quo ante bellum is a Latin phrase which means “the state existing before the war”. So when did this “war” or conflict began? It began with the 9 October 2016 threat by the Governor when all the Applicant communities were still intact. This was the situation the Applicants approached the court in order to preserve. The State Government cannot hide behind an illegal act undertaken in violation of a court order and then foist the status quo post bellum on the Applicants. Second, remember that Justice S. A. Onigbanjo on 26 January 2017 found that demolitions on short notice without provision of alternative shelter constitute cruel, inhuman and degrading treatment in violation of the right to dignity enshrined in Section 34 of the 1999 Constitution. It would be completely incongruous for the same judge to order the Applicants who had been unlawfully evicted and rendered homeless in violation of a court order to remain homeless for months until the conclusion of the court case. Finally, the March 2017 demolitions have primarily targeted at areas of houses on water not touched previously. Therefore, it is the Government that is in disobedience of the Order of Court.

Megan Chapman explaining more

Again, the LASG has come up with their reasons for the demolitions which are to forestall environmental disaster and another incident like the one that allegedly led to the fire of November 2016; and the overriding public interest to ensure that the waterfront area is free from environmentally injurious and unsanitary habitation. Is it true that the waterfront areas are environmentally injurious and uninhabitable?

So many factors contribute to environmental hazards generally. The waterfronts are not excluded from the wide-spread environmental pollution in the State. Even the mismanagement of waste due to the lack of sewage system in the city and ground water pollutions from all around the State all have their impact on the waterfronts. Be that as it may, we are working with the communities on some projects to improve sanitation and solid waste management, amongst others. For instance, this year in partnership with the Nigerian Slum / Informal Settlement Federation, we are supporting communities to build improved toilets that utilize new technology to contain and process human waste in the absence of a sewage system. Otodo Gbame was meant to be one of the participating communities.

What is your take on the assertion by the LASG that recent kidnapping incidents are justification for doing away with the waterfronts?

The residents of the waterfronts are not criminals as the Government would want the public to believe. Furthermore, demolition of entire communities is not the solution to security threats and challenges and there is no law that authorizes the government to carry out demolitions of entire communities in response to insecurity. The only law I am aware of that authorizes demolition in response to crime is under some anti-kidnapping laws, in which buildings used to hold kidnapping victims can be demolished as a penalty after trial and conviction of the accused. Even if there were criminals living in the waterfronts, do demolitions remove them from society? If the Government is sincerely concerned about security, the answer is to investigate the security threats, arrest persons suspected of involvement, and if the evidence suffices, prosecute them and allow them to face the penalty prescribed by law. Finally, the communities actually have mechanisms in place to secure their communities and have tried to partner with local police stations to improve security of their communities. The biggest challenges they face is corruption in the police force, whereby suspects they arrest and hand over to police are often released without charge after someone pays a bribe. The Government should partner with communities to strengthen community policing and root out corruption in the police force to ensure a more secure society.

This question of sincerity on the part of the Government brings me to the claim by the LASG of having no interest in Otodo Gbame and other communities, other than to ensure that the delicate ecosystem of the waterfronts remains safe, clean and secure. Do you believe this?

The purpose of environmental protection is to enhance human life; therefore environmental protection measures must be carried out in line with human rights protections. It is shocking that the Government would try to use environmental protection to justify mass human rights violations. In terms of whether there are other interests, we all know that the waterfront property in places like Lekki has high value and we believe there are private developers who are eager to take over the land once it is cleared by the LASG. For instance, we understand that the Elegushi Family is interested in building a huge luxury development known as “Imperial International Business City,” which we believe would be built around the Otodo Gbame community, and the residents are seen as an obstacle to this project.

The LASG has expressed willingness to go into mediation with the communities insofar as their demands are reasonable and lawful. What are the specific demands of these communities?

First, an end to forced evictions and demolitions! It is unlawful and not the answer to any of the problems sited as excuses for the threat of eviction of the waterfronts. We are also willing to look into the Government’s concerns and propose solutions that do not involve demolition and forced evictions. For instance, if the concern is security, we propose strengthening community policing. If the concern is the environment, we propose community-government partnership to address environmental problems and improve environmental management. If the concern is physical planning and the quality of housing, we are proposing community-led in situ upgrading in partnership with the Lagos State Urban Renewal Agency.

Megan Chapman Interview

Are you aware of any other specific steps being taken by the United Nations Special Rapporteur on Adequate Shelter, Amnesty International, etc to save the situation?

These international institutions all have their respective mandates. Amnesty International has publicly condemned the acts of the LASG. I am aware that the UN Special Rapporteur on Adequate Shelter has done a confidential communique to the Nigerian Government, which should have been forwarded to the Lagos State Government for reply. Usually, the Special Rapporteur gives some time for reply before publishing the results of her investigation.

You had reasonably canvassed that partnership and collaboration between communities, civil society, and the Government is the best way of solving social and developmental problems that face the city and not by demolition and forced eviction. Can you elaborate more on how this partnership and collaboration can work?

Like I said earlier, the communities are willing to consider the concerns of Government if well articulated. But the Government must stop forcible evictions and demolitions. The communities are ready to work out and agree on solutions with the Government. For instance, through community policing, the communities will assist in tackling the issue of security. Although we must say that one of the challenges here is the level of corruption in the Police which makes it possible for arrested suspects to escape justice and the wrath of the law after being handed over to the Police. Furthermore, the communities are willing to support projects for solid waste management as well as sanitation and in situ upgrading.

What is your message to the LASG?

The LASG should stop forcible eviction and demolitions and show more respect and regard for human life and the rights of citizens to adequate shelter. The Government is not being asked to sanction illegality, contrary to the feeling expressed that the Government is being stampeded or blackmailed to abandon its constitutional responsibilities. The communities are not asking the Government to build houses for them. They are asking the Government to help them get security of tenure – protection against forced eviction – so they can invest in improving their communities and for the Government to bring in the basic services and approve layouts. The major problem with any proposed partnership, however, is that there is a major gap in trust and the Government should be mindful of this. Yet the communities are still willing to reason with the Government for a mutually beneficial understanding.

LASG at scene of demolitions

Is there anyway you think the Federal Government can assist?

Sure. The Federal Government should relate with the LASG to find a more meaningful solution to the issue. Matters of this nature are within the jurisdiction of the State. However, the Federal Government should come in to save the ugly situation which is not good for the image of the country. I know about the national policy on slum development but it was not concluded for implementation, to the best of my knowledge.

Thank you, Megan. It’s been a pleasure chatting with you.

Stephen and Megan

Blogger’s Note:

It is our utmost expectation that the LASG would hearken to the cries of these communities to see about a resolution of the crisis. Human life is highly valuable and the dignity of citizens must be respected, protected and preserved at all times.

Otodo Gbame Protests

Our chat with Megan turned towards a mention of certain notable legal principles as judicially espoused. In the above unreported case of Akakpo Agemo & 38 Ors. v. A. G. Lagos State & 3 Ors. – Suit No. LD/4232MFHR/2016, Onigbanjo, J. reasoned: “…I think that irrespective of the Respondents’ stated security related and other reasons for justifying the eviction/threatened eviction of the Applicants from their homes as averred in the Counter-Affidavits filed herein, in as much as those reasons do not derogate from the fact that the Applicants are nonetheless citizens of Nigeria who are constitutionally protected from cruel and inhuman/degrading treatment by Section 34(1)(a) of the 1999 Constitution of Nigeria (as amended)… I find the eviction/threat of forcible eviction of any citizen from his home at short notice and without any immediate alternative accommodation before being evicted from his current abode totally undignifying and certainly inhuman, cruel and degrading…”

Furthermore, we noted the principle that forceful demolition of property can properly ground an action on fundamental rights enforcement. This was the position of the Court of Appeal in Adu & Ors. v. Lagos State Task Force on Environment and Special Offences Unit &Ors. (2016) LPELR-40060 where the Court discountenanced a preliminary objection against such suit and jettisoned the argument that such action was predicated on title to land and that to that extent, cannot be rightly commenced vide a fundamental rights procedure.

It is our position that all parties including the Government must at all times abide by orders and directives of the courts. In the case of Ezekiel Hart v. Ezekiel Hart [1990] 1 NWLR (Pt. 126) 276 at 297, paras. C-D, Nnaemeka Agu, JSC (as he then was) stressed: “…I would like to state that obedience to orders of court is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, machetes and guns or, now, even more sophisticated weapons of war. Disobedience to an order of court should, therefore, be seen as an offence directed not against the personality of the Judge who made the order, but as a calculated act of subversion of peace, law, and order in the Nigerian society. Obedience to every order of court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation…”

Also, in SERAP v. Federal Republic of Nigeria (2002) 2 CHR 537 at 562 (cited by Femi Falana, SAN in his article, “Illegality of Houses Demolition in Lagos“), the African Commission on Human and People’ Rights remarkably stated: “At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs.

 

There is a presumption that a lawyer always speaks the truth.

 

Saraki v. Federal Republic of Nigeria [2016] 3 NWLR (Pt. 1500) 531 at 603-604, paras. G-B, per Muhammad, JSC:

“My lords, it is clear from the records of appeal that at the time proceedings were initiated to prosecute the appellant at the tribunal, there was no person occupying the office of the Attorney-General of the Federation. Mr. Hassan who appeared before the tribunal to prosecute the appellant told the tribunal, in his words: “In the absence of the Attorney-General of the Federation, the Solicitor-General can perform such powers as the Attorney-General. The Solicitor-General is in office and I am authorised to file this action.” This was an information coming from a learned counsel who was speaking from the Bar, and who, as a Minister in the temple of justice, would always be expected to say nothing but the truth. Was he disproved? There is no finding to that effect. Thus, the presumption of regularity must work in favour of the learned counsel, Mr. Hassan, and there was no basis for the tribunal to disbelieve or ignore such information from a gentleman of the Bar.”

Blogger’s Note:

The above pronouncement by the learned Justice of the Supreme Court further strengthens the notion that lawyers are men of high integrity. Lawyers are not liars. It is however incumbent on lawyers to live up to this notion and high expectation at all times, in line with the rules of ethics of the profession.

It is pertinent to note that the important information which the Court believed as true is the information by learned Counsel, Mr. Hassan, that he was authorised by the Solicitor-General to file the charge against the Appellant. See page 608, para. H, where Muhammad, JSC said: “My lords, the presumption of regularity is sacrosanct. Where a legal practitioner informs the court that he was authorised (as did Mr. Hassan), the court/tribunal must believe the counsel. It is left for the party challenging him to prove otherwise.” Therefore, the other information which is that, “in the absence of the Attorney-General of the Federation, the Solicitor-General can perform such powers as the Attorney-General”, is a matter of law which the Supreme Court upon due consideration of the relevant statutory provisions concluded that the Solicitor-General can exercise the powers conferred on the Attorney-General of the Federation where there is none at the material time.

Read the full Judgment.

A student who sits for an examination or completes a course of study has a right to know the result.

Unilorin v. Rasheedat Adesina [2014] 10 NWLR (Pt. 1414) 159 at 175-176, paras. H-A, Aka’ahs, JSC:

“The respondent was entitled to know the outcome of her examinations. It is the practice the world over that where a student sits for an examination or completes a course he or she is entitled to know the outcome of that examination. It therefore beats my imagination why the appellant refused to release the respondent’s result on the flimsy excuse that she failed a core course and so the appellant had no obligation to release a non-existent result. It was an unnecessary show of power for the University to turn deaf ear to the respondent’s entreaties to release the results.”

Blogger’s Note:

In the above case, there was a demonstration by students of the University of Ilorin. Upon an investigation carried out by a committee set up by the School, the  Respondent and other students were indicted and referred to the disciplinary committee, and subsequently rusticated. Prior to her rustication, the Respondent had sued the Appellant and obtained an interim order of injunction restraining the School from commencing disciplinary proceedings against her. The Appellant appealed against the order. It was during the pendency of the appeal that the Visitor (the Nigerian President at the time) intervened, following which a panel was set up to resolve issues pertaining to politically victimised and rusticated students. The Panel’s resolution led to a recall of the Respondent by the School after she had written a letter of apology and paid a fine. Unfortunately, in spite of her recall, the Respondent’s results were never released. As a result, the Respondent returned to the court, seeking the release of her results. The Appellant challenged the jurisdiction of the Court on the ground that the issue of release of result (which it argued was same as award of degree) was a domestic affair which the Court cannot dabble into. The trial Court overruled the objection and delivered Judgment in favour of the Respondent. The Appellant’s appeal to the Court of Appeal and the Supreme Court was unanimously dismissed.

The Supreme Court noted that there is a vast difference between release of results and award of degree. Rhodes-Vivour, JSC reasoned: “A student who takes part in an examination is entitled to see his results. Refusal to release results is not strictly a domestic issue. Refusal to release result with no reason for the refusal raises issue of breach of civil rights and obligation, denial of fair hearing which are all justiciable. Such a refusal is no longer within the confines of domestic affairs of the University. The courts have jurisdiction to examine such matters. On the other hand, the refusal to award degree cannot be questioned by the courts. This is within the exclusive province of the university.” See page 177, paras. D-G of the report.

We must quickly point out that the last statement by Rhodes-Vivour, JSC above, that is,  “On the other hand, the refusal to award degree cannot be questioned by the courts. This is within the exclusive province of the university”, is at best, a general rule. There are exceptions one of which is that “where a student has exhausted all avenues and entreaties, and the university is adamant…, the student is entitled to approach the court for redress.” See Okoro, JSC at page 178, paras B-C of the report.

See also the Judgment of the Supreme Court in Unilorin v. Akinola [2014] 12 NWLR (Pt. 1422) 435, a case with similar facts as in above, wherein the appellant sought a release of his result and academic Degree. The Supreme Court held that in deserving circumstances such as where all avenues and entreaties have been exhausted, the court can interfere with the powers of the University to award degrees.

Unfortunately, in both cases, the University still moved to punish the students even after the Presidential Committee set up had resolved issues and the students wrote written apologies which were accepted by the School. In heavily criticising the University, Peter-Odili, JSC in Unilorin v. Akinola (supra) said: “The situation is akin to sending the respondent on a mission to buy salt and on getting the salt, finds himself drenched by rain which the appellant sent. That is give with the right hand and take back with the left, a visitation on a student which ought not to be associated with the University or Ivory Tower as colloquially called or citadel of learning and character formation.” See page 460, paras. E-G of the report.

Our universities must endeavour to accept and recognise the fact that students have the right to protest against any perceived injustices. The idea of intimidating the students and victimising them by all kinds of threats and punishments must stop. In a decent society, there should be in place, a proper mechanism for the resolution of grievances and agitations by students. On the other hand, students must be able to properly coordinate their protests to avoid unnecessary breakdown of law and order.

By the way, why do Nigerian universities always pursue cases involving students up to the Supreme Court in needless appeals??

A suit dismissed for want of diligence may never be relisted. Beware!

Banna v. Telepower (Nig.) Ltd. [2006] 15 NWLR (Pt. 1001) 198 at 220, paras. F-G, per Tobi, JSC (of blessed memory):

“A plaintiff has not only a right to file an action in court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence and nonchalance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.”

Mukhtar, JSC (retired) at p. 225, para. G:

“…Indeed, justice is supposed to be for both sides, and not only the convenience of one side. I am in full agreement with the above reasoning of the learned trial Judge. The learned trial Judge dismissed the action under the correct and proper rule, and was right in refusing to relist it…”

Blogger’s Note:

In the above cited case, the Respondent (as Plaintiff) before the trial Judge filed an action in 1993 against the Appellant. The matter was severally adjourned for hearing but on each occasion, the Respondent and its Counsel were absent in Court. On the fifth occasion in 1995, the trial Judge dismissed the suit for want of diligent prosecution. The Respondent thereafter filed an application seeking to relist the suit. The learned trial Judge dismissed the application on the ground that the excuse offered for the absence of the Respondent and its Counsel was unsatisfactory. The Respondent appealed to the Court of Appeal which allowed the appeal, holding that although the conduct of the Respondent was condemnable, the trial Judge ought to have merely struck out the suit instead of dismissing it; and also, the trial Court ought to have relisted the suit. The Appellant’s appeal to the Supreme Court was unanimously allowed. The apex Court disagreed with the Court of Appeal who, according to the Court, preferred to tow the line of sympathy. The Supreme Court held that, having failed to find the reasoning and exercise of discretion by the learned trial Judge as unjustified, the Court of Appeal ought not to overrule the trial Judge.  The Court re-emphasised the need to treat with respect the exercise of discretion by the trial court. According to Tobi, JSC (of blessed memory), “as long as the discretionary power is exercised judicially and judiciously, an appellate court cannot interfere by show of appellate power.” See page 221, paras. F-G of the report.

The Supreme Court further took time to criticize the use of tricks in litigation. According to Mukhtar, JSC (retired), “just as much as there is a saying that there must be an end to litigation, I will add here that there must also be an end to playing pranks, wasting the courts’ time.” See pp 224-225, paras. H-A. “Tricks have no place in the judicial process and so why play them?” asked Tobi, JSC at page 218, para. D.

Interestingly, the Federal High Court, Lagos Division, per Buba J., in a recent Ruling delivered on 15th of March, 2017 in Suit No. FHC/L/CS/314/13 – Arkville Chemical Co. Ltd. v. Deputy Sheriff, Federal High Court & Ors (Unreported) dismissed an application to relist a suit which suit he had earlier dismissed on ground of want of diligence, relying heavily on the case of Banna v. Telepower (supra). Learned Senior Counsel for the Plaintiff tried to persuade the learned trial Judge but the Judge was resolute and unmoved. He held that the Plaintiff was playing games but that the game was up.

Statutory corporations and organisations have a duty to treat their pensioners humanely.

 

C.B.N. v. Amao [2010] 16 NWLR (Pt. 1219) 271 at 307, paras. C-H, per Onnoghen, JSC (now CJN):

“It is rather unfortunate that the efforts of the Federal Government to put smile on the faces of the pensioners of the appellant so as to alleviate their sufferings having regards to the harsh economic realities of this country have been almost frustrated by arguments on legal technicalities whilst the people continue to suffer year in year out. It is disturbing because the people involved are senior citizens of this country who have contributed their quota to the development of the nation during their prime, but look at the way an organisation like the appellant is treating them… It is important for every organisation in this country, including the appellant, to wear a human face in its treatment of the people, particularly the senior citizens, because it will be anybody’s turn tomorrow to be a senior citizen. We must re-examine our attitude towards the senior citizens of this country so as not to make them regret their sacrifice for the nation in whatever capacity. The respondents need not be put to the expenses of litigating this matter in the first place let alone all the way to the Supreme Court.”

Blogger’s Note:

Before we comment on the video above, what happened in the above cited case was that the Appellant refused to pay pension to the Respondents in accordance with the then Federal Government harmonised pension scheme which was drawn following a report by a panel on civil service reform  set up by the Federal Government. Aggrieved, the Respondents sued the Appellant at the Federal High Court. The Appellant’s appeal up to the Supreme Court was unanimously dismissed. Read full Judgment here.

Now, the above video (exclusively recorded by SLB today, 15 March, 2017), shows some aggrieved retirees of the Nigerian Ports Authority staging an organised protest over their unpaid pension arears. Read a fuller report here.

Indeed, every citizen including pensioners has a right to protest publicly. It is our expectation that the NPA would hearken to their voices and take note of the notable pronouncement by Onnoghen, CJN above.

Extras: You may read “Understanding the Impact of Pension Reforms in Nigeria“. Download the Pension Reform Act 2014.

 

 

Complaint by the Nigerian Bar Association against a lawyer before the LPDC cannot be withdrawn.

 

NBA v. Henkyaa [2016] 11 (Pt. 1522) 164 at 173-174, paras. G-C, per Daudu, SAN:

“Dealing with the purported withdrawal of the complaint, we reaffirm our position that applying to withdraw a petition at this stage is akin to bolting the stable gates after the horse has escaped. This is because the petition has undergone a process recognised and prescribed by the Legal Practitioners Disciplinary Committee Rules, 2006 in that it has been investigated and a complaint by a professional body drafted therefrom. Thus, the petition is no longer before us but the complaint by the NBA. The NBA knows too well that once a complaint is filed on behalf of the profession it cannot be withdrawn except in very clear exceptional circumstances such as the death of the respondent or the disclosure of new facts that render the complaint academic, irrelevant or unlawful. None of those circumstances are available here and we cannot consider the said purported withdrawal of the petition as extenuating circumstances in this matter.”

Blogger’s Note:

In the above case, the Respondent (a legal practitioner) sealed off a certain premises occupied by Midag Hotels Nig. Ltd without a proper order of court. He did this on behalf of his client, Benue State Government, who had instructed him to take over and manage all her properties in Lagos including the subject property.

In reaction, Midag Hotels caused a petition to be written by its solicitors to the Nigerian Bar Association (NBA) challenging the act of the Respondent. The NBA considered the petition and the accompanying documents including photos of the Respondent sealing off the premises and concluded that a prima facie case was disclosed in the petition. Consequently, the NBA filed a Complaint at the Legal Practitioners Disciplinary Committee of the Body of Benchers (LPDC). During the pendency of the Complaint before the LPDC, the petitioner sought to withdraw the petition. However, the LPDC would have none of that. In delivering the Direction of the Committee, Daudu, SAN found that the Respondent was in flagrant breach of the Rules of Professional Conduct, 2007 and that unfortunately, the Complaint cannot be withdrawn. The Respondent was suspended from legal practice for 12 months in consideration of his admission of his wrongful act and plea for leniency.

NB: It appears that if any withdrawal of a petition is intended, perhaps it must be attempted before the NBA files a formal complaint before the LPDC.

The rationale for the above position of the LPDC is not far-fetched. The legal profession is a noble one and the ethical standards are extremely high. In the case of Ativie v. Kabelmetal (Nig.) Ltd. [2008] 10 NWLR (Pt. 1095) 399 at 425, para. G, Onnoghen, JSC (now CJN) held: “The standard of legal practice in this country is very high and counsel are advised to either retain it at that high level or raise it higher, they are definitely not to lower it under any guise.”

A lawyer has a duty not to use offensive and insulting language on the court – Notable pronouncement by Sankey, JCA.

Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1550) 347 at 409-410, paras. B-G, per Sankey, JCA:

“One last word before I am done. It is quite disheartening to note the brazen, insalubrious and un-warranted attack on this court by learned counsel for the appellants when referring to this court’s previous finding in the unreported case of Mamman v. Bwacha (supra). With due respect to counsel, it was distasteful and odious, and an action totally inappropriate and unbecoming of a member of this noble and decent profession. It is my view that even where counsel finds himself unable to agree with the findings of a court, it is only decent, polite and cultured, (to say the least), that he should use the power of persuasive/convincing arguments to make his point in the discharge of his duty to his client, while also balancing this with his role as a Minister in the hallowed temple of justice. It is however not expected that counsel should descend into abysmal depths to the extent of directing disrespectful and obnoxious language against the court… Hence, I decline the attempt by counsel to drag the court down from its lofty height to join in the dust of the battle, which, (counsel are at all times enjoined to keep in mind), is really between the opposing litigants, and not between counsel and the Bench, or even between opposing counsel. I therefore strongly deplore and deprecate the inclination by a few in this noble and dignified profession to blissfully and wittingly slide into the slime of the gutter (as it were) by use of offensive and base language. This court chooses to retain its serene position high above the arena of combat as an impartial and detached umpire/adjudicator, and remain in the corridor of professionalism, hard facts and cold law. It is not and should never be personal. Instead, it is a matter of cold clinical facts and the application of the law to same. Civility in spoken and written language is a lubricant that prevents law suits from degenerating into combat, and by which the participants emerge from our adversarial process without blisters and swollen faces. It is well for counsel to bear in mind that in a brief of argument, the author x-rays himself by his use of language and leaves same for present and future generations unborn. Distasteful use of language merely and needlessly distracts from the issues in contention. Offensive language does not improve advocacy, rather it destroys it. Insulting language also tells so much about the character of counsel. Judges are not happy with such language…”

Blogger’s Note:

The learned Justice of the Court of Appeal ended the above by saying that a word is enough for the wise. I agree.

Now, what happened in the above case was that an Election Petition filed at the National and State Houses of Assembly Election Tribunal of Taraba State was signed by an unindicated solicitor among named solicitors on behalf of the Appellants. The Election Tribunal struck out the Petition. The Appellants appealed.  In persuading the Court of Appeal to uphold the decision of  the Election Tribunal, the Respondents relied on the unreported case of Mamman v. Bwacha CA/YL/EPT/SEN/45/2015  where it was held (by the same Sankey, JCA) that the petition in that case was incompetent because it was signed by a person simply referred to as “Petitioner” without more; also, there were two petitioners and the signature didn’t indicate which of the unnamed “petitioners” signed.  The Appellants herein in response to the Respondents’ arguments called upon the Court of Appeal to overrule its decision in Mamman v. Bwacha. In making the call, the Appellants’ Counsel used what the Court found as offensive language. Sankey, JCA refused to answer the call and brilliantly distinguished the cases. The Court held that in the instant case, the solicitors were properly named and that there is a presumption that one of the named solicitors signed. It is left for the Respondents to rebut the presumption which they failed to do. (Read the Court’s holding in our earlier post). Interestingly, the learned Justice of the Court of Appeal allowed the Appeal of the Appellants notwithstanding the said use of offensive and insulting language.

May we use this opportunity to add here that while counsel must desist from use of offensive language, the Court must heed the advice too. We have seen some cases where courts address counsel with so much disrespect. Respect and honour must be preserved in the legal profession.

Again, the pronouncement of Sankey, JCA and his ultimate decision in the case is highly commendable.

Failure to indicate the particular counsel who signed a court process where more than one name appeared is not fatal.

Maitumbi v. Baraya [2017] 2 NWLR (Pt. 1550) 347 at 394, paras. C-E, per Sankey, JCA:

“On the authority of INEC v. Oshiomole [2009] 4 NWLR (Pt. 1132) 607, it was incumbent upon the 1st respondent who contested the ownership of the signature (and not the petitioners) to prove his assertion that the signature on the petition did not belong to anyone of the solicitors named at the foot of the petition. Clearly from the above affidavit evidence, the applicant (1st respondent) did not come even close to discharging the onus of proof in this regard. Therefore, it is safe to assume that the signature atop the names of the three solicitors named at the foot of the petition was affixed by one of the petitioners’ named solicitors…”

Blogger’s Note:

The position of the Court in the above case is commended. Indeed, the courts should not sustain such technical objections like that of the 1st Respondent in the case. In fact, in this era of NBA stamp and seal, the affixing of a counsel’s stamp and seal goes to show the actual counsel who signed the court process provided that his name is among the names appearing below the signature on the process. However, counsel are encouraged to always make the necessary indication. Sankey, JCA at page 394, paras. F-H admonished as follows: “Nonetheless, it must be stated that it is not good practice which is encouraged by the court for counsel signing any court process, (and even more so, election petitions), to fail to indicate who, (from a list of solicitors named in the process), appended his signature thereto. It is evident that, while this court has in such cases attributed the failure to indicate the actual name of the solicitor who appended his signature on a petition as not being fatal but a technicality which should not defeat the ends of justice, that is not to say that it should be the norm…”

A Court has a duty not to impose light sentence for the offence of rape.

Posu v. State [2011] 2 NWLR (Pt. 1234) 393 at 418, paras. A-B, per Adekeye, JSC:

“The purpose of the criminal law is to prevent harm to the society. The offence of rape is by every standard a grave offence which often leaves the victim traumatised and dehumanised. A light sentence as in the case of the appellants must never be imposed. This may have the unsavoury effect of turning rape into a past-time by our flippant youths.”

Rhodes-vivour, JSC at p. 420, paras. A-B:

“The prosecutrix suffered an ordeal that was the stuff of nightmares. A ferocious and indiscriminate attack by two callous, wicked men. To my mind where, as in this case there is overwhelming compelling evidence that two men took turns to rape a defenseless young girl in degrading and horrific circumstances, I think the appellants should forfeit their place in a decent society for a much longer period. Three years in prison cannot be adequate for such an act.”

Blogger’s Note:

In the case, the Appellants were charged at the High Court of Ogun State on a two-count charge of conspiracy to commit a felony (rape), and rape. They were found guilty of the offences and were accordingly convicted and sentenced – 1 year imprisonment for conspiracy to commit rape; and 3 years imprisonment for rape itself. The Appellants’ appeal up to the Supreme Court was dismissed. The Supreme Court was however not satisfied with the 3 years sentence for the offence of rape bearing in mind that section 358 of the Criminal Code Law of Ogun State provides for possible sentence of life imprisonment. Although the trial Court was not bound to sentence the Appellants to life imprisonment, the trial Court had the discretion to sentence them for more number of years instead of the 3 years pronounced. Rhodes-Vivour, JSC was of the view that since there was no cross-appeal, there was nothing that could be done on what he described as “strange sentence”.

I agree that the Appellants deserved more! Indeed persons found guilty of rape should be severely punished. You may read some views expressed here.

A court cannot insist that a particular counsel in a chambers must conduct a case.

Ceekay Traders Ltd. v. General Motors Co. Ltd. [1992] 2 NWLR (Pt. 222) 132 at 163, paras. E-F, Olatawura, JSC:

“With the development in legal practice, legal practitioners frequently enter into partnerships. In each Chambers there are many practitioners. A litigant may brief one of the partners, but the Chambers is responsible for the conduct of the cases once the brief is accepted. It is the practice, depending on the nature of the case, in busy Chambers for three or four counsel to represent a party at the beginning of the trial. One may begin with the examination of witnesses, another take on the cross-examination of witnesses. Sometimes, the leading counsel may simply announce his appearance and then inform the court who will conduct the case. All these are designed to show the internal arrangements of the Chambers. The Judge is not entitled to insist on a particular counsel in the team to conduct the case. Whoever appeared a day before may not necessarily appear the following day. As long as the party is not left without a counsel, the court is not to interfere with the internal arrangement of the Chambers. “

Blogger’s Note:

In the case, the Appellant had severally asked for an adjournment at the trial Court through different counsel (but all from the same Chambers). On a certain date, the Appellant again asked for an adjournment but the application was opposed by the 1st Respondent who urged the Court to dismiss the suit. The trial Court refused the application for adjournment and thereafter dismissed the suit. The Court of Appeal in dismissing the appeal lodged, appeared to have had a problem  with the fact that the applications for adjournment had been tabled by different counsel from the same Chambers, when it observed that one of the counsel from the Chambers “conveniently stayed away” to allow another counsel appear to seek for another adjournment. The Supreme Court found it compelling to make ineffectual that observation and holding especially as same was made a ground of appeal at the Supreme Court. Olatawura, JSC aptly clarified the point when it made the pronouncement quoted above.

More so, the Supreme Court in the above case clearly endorsed the routine practice of many legal practitioners from the same Chambers as it relates to cooperation (which the Court described as change of baton like in a relay race) and thereafter rightly stressed the point that courts have no business interfering with the internal arrangements of law Chambers. Continue reading A court cannot insist that a particular counsel in a chambers must conduct a case.