Dele Adesina SAN, Femi Falana SAN & 6 others Inaugurated as NBA Ikeja Branch Patrons
The Challenges of Executive Immunity Clause in the Constitution of the Federal Republic Of Nigeria, 1999 | Dele Adesina, SAN, FCIArb
TO THE PARTICIPANTS OF THE EXECUTIVE INTELLIGENCE MANAGEMENT COURSE, INSTITUTE
FOR SECURITY STUDIES, ABUJA ON 9TH DAY OF JUNE, 2011
consider it a great honour once again to be invited to this year’s Executive
Intelligence Management Course of this great Institute to deliver a paper on
the topic “The Challenges of the Immunity
Clause in the Constitution of the Federal Republic of Nigeria 1999”2 I recall that I was here last year
to address you during a similar Course. Once
again, I thank you for this invitation.
Immunity will continue to attract public discourse as long as the style of profligacy
and licentiousness of leadership, audacious demonstration of affluence by the
few but highly powerful and demonstrable impunity in the conduct and handling
of public fund continue in our society.
accountability, responsibility and transparency in governance and they
constitute serious concern to the governed.
The desire therefore to bring erring leaders to judgment in the exercise
of the sovereign authority of the people and the limit of such authority if any
will continue to make discussion on the subject of immunity relevant in
Nigeria.
position of authority is to serve the people and honestly too. It is not to
serve one’s self or ones family.
Regrettably, experience has shown that some of our leaders seek
leadership to wield authority. Authority to amass wealth and accumulate
material possession. Indeed, it has been
said that in Nigeria, some stash money in the names of their cronies and family
members with scandalous and reckless abandon.
All these lead to wastage of public resources and high degree of
corruption.
leadership to control and judicial sanction without offending the Constitution,
requires a good understanding of the provisions of the immunity clause in the
constitution. But let me ask, how many
people are covered by this provision?
And what is the percentage of this people compared to several other
leaders occupying one position of authority or the other, who also constantly
abuse and misuse their powers and authority?
Constitution of the Federal Republic of Nigeria 1999 hereinafter referred to as
“the Constitution” which guarantees
the listed public officers immunity from criminal prosecutions subject to the
provisions of section 308(2) provides as follows:
this Constitution but subject to sub-section two (2) of this section –
No civil or criminal
proceedings shall be instituted or continued against a person to whom this
section applies during his period of office;
A person to whom this
section applies shall not be arrested or imprisoned during that period either
in pursuance of the process of any court or otherwise; and
No process of any
court requiring or compelling the appearance of a person whom this section applies
shall be applied or issued, provided that in ascertaining whether any period of
limitation has expired for the purposes of any proceedings against a person to
whom this section applies, no account shall be taken of his period of office”.
provision grants general cover for the listed members of the Executive to get
away with virtually everything to the extent that they are free from criminal
prosecution during the pendency of their tenure no matter what offence is committed
by them. However, it must be noted that
immunity
a person to whom this section applies in his official capacity or to civil or
criminal proceedings in which such a person is only a nominal party”.3
the persons to whom the section is applicable.
In the very words of the section.
office of President or Vice President, Governor or Deputy
Governor and the reference in this section to period of office is a
reference period during which the person holding such office is required to
perform the functions of the office”.4
Dictionary of English Language defines immunity in the context it was used in
the Constitution to mean:
protection against particular laws that is given to politicians” 5
Black’s Law Dictionary 7th Edition, also define the word to mean:
service of process especially such as exception granted to a public official” 6
Constitutional immunity to mean:
the Constitution” 7
immunity means protection from liability.
In other words, if the public official concerned commits even murder
which is absolutely prohibited by our criminal law,8 or offences of obtaining money under false pretences
contrary to Section 419 of the Criminal Code9 the Constitution says you cannot arrest or
detain not to talk of prosecuting or sentencing simply because the person
involved happens to be the President, Vice President, Governor or the Deputy
Governor.
notwithstanding the wave of seeming Executive lawlessness in the polity and the
parasitic ruling class who more often, are not able to separate or distinguish between
public fund and their personal money.
For me, providing constitutional protection against this situation
amounts to subversion of the rule of law, democracy and political stability
which must not be allowed to persist. But how did it all begin?
sovereign immunity has its origin in the anachronistic vestige; expressed in
the latin maxim Rex non protest
peccare (The king can do no wrong). As the King enjoyed absolute
immunity, he could neither be impleaded in his own courts nor subject to any
foreign jurisdiction. According to King
Maneleus of Sparta
when a king kills, he commits no murder, he only fulfils justice” 10
Native Law and Custom has something similar to this. This can be deduced from
the very title of ‘KABIYESI’ answered
by our Royal Fathers. Jurisprudentially,
Kabiyesi literarily means “who can ask him questions? Nobody.” But inspite of this referred position of the
Royal Fathers, the Yoruba Native Law and Custom still have very strong,
irresistible and generally accepted system of bringing an erring Oba to
justice.
Proceedings Act 1947, which came into force on 1st
January, 1948, the position has changed.
Effective from that date, the Crown can be sued in England for the tort
of its servants. This was a radical
change from the pre 1947 position of total immunity enjoyed by the Crown11 The 1947 Act does not apply in Nigeria
by virtue of the Act being a post 1900 legislation and therefore not qualified
as a statute of general application.
Proceedings Act of 1947 made the government generally liable with
limited exceptions in tort and contract. Even before this enactment, it was
possible to claim against the Crown with the Attorney General’s Fiat. Please note however that law suits against
the Sovereign in UK in his or her personal and private capacity remain
inadmissible under the British law.12
of America, the Federal Government has sovereign immunity and may not be sued
unless it has waived its immunity or consented to the suit. The Eleventh
Amendment to the United States Constitution states that
shall not be construed to extend to any suit in law or equity commenced or
prosecuted against one of the United States by citizens of another State or by
Citizens or subjects of any foreign State”
United States has held that this Amendment re-affirms that States possess
sovereign immunity and are therefore generally immune from being sued in
Federal Courts without their consent.
immunity, although the crown may be explicitly or implicitly immune from any
particular statute.
principles of state sovereignty and Crown Immunity are distinguishable from the
Executive Immunity granted by the Constitution, because, even though these
officers represent the Executive authority of the State, they do not constitute
the Sovereignty of the State.
Onabanjo V. Concord Press of Nigeria,13 the Plaintiff who
was the Governor of Ogun State had filed a libel suit against the Concord Press
of Nigeria and promptly, the Defendant challenged the competence of the suit on
the ground that the Plaintiff was immune from being sued under section 308 of
the Constitution and therefore cannot sue. This objection was dismissed when
the Court held that although the Governor could not be sued, he was not
precluded from instituting and maintaining an action in Court.
reached, in the case of His Excellency,
Apa
Aku V. Plateau Publishing Ltd. & Ors,14 another libel
suit instituted by another serving Governor. The Jurisdiction of the Court was
also challenged on the basis inter alia of section 267 of the Constitution of
Nigeria 1979 (similar to section 308 of 1999 Constitution). The defendant had
argued that since processes cannot be issued requiring or compelling the
Plaintiff to appear before the Court that the Court cannot exercise
jurisdiction over the Plaintiff in the suit. That, even, in proceedings
commenced by the Governor, no process of any Court requiring or compelling his
appearance can be issued. The Governor, he further argued, cannot waive the
immunity conferred on him on the ground of public policy. That he cannot be subject to the process of
Court in his private capacity. Sound argument you will say.
respected Hon. Judge said and I quote:
the Constitution quoted in full above are very clear and unambiguous. It means
as long as the Plaintiff, that is, His Excellency, Apa Aku remains in the
office of the Governor no civil or criminal proceedings shall be instituted or
continued against him. He shall not be
arrested or imprisoned during that period, either in pursuance of the process of any court or otherwise. Likewise and in the same circumstance, no
process of any court requiring or compelling his appearance shall be applied
for or issued. In effect the section
gave the Plaintiff immunity while in office as Governor and not disability in
legal proceedings while in office as Governor” 15
Lordship dismissed the objection because according to him, the Constitution
does not deprive the Plaintiff the right to sue. One wonders what then is the status of the
legal right of equality of all persons before the law? If you as a President, Vice President,
Governor or a Deputy Governor can sue me but I cannot sue you for remedy over an
injury done by you to me just because you are in office, that to me does not
appear to be fair or just.
Aku V. Plateau Publishing (Supra) was confirmed by the Court of
Appeal in the case of Chief DSP Alamieyeseigha V. Teiwa & ors16. The Respondents in this case had secured an
order to compel the Chief of Air Staff to investigate some alleged criminal
acts purportedly committed by the Appellant while he was a serving officer in
the Nigerian Air Force.
Alamieyeseigha was not made a party to the suit because he was at the time of
the suit, the Governor of Bayelsa State.
Thereupon, the Appellant sought and obtained the leave of the Court of
Appeal to appeal against the Order as an interested party. The Respondents
objected relying on the provisions of section 308 of the Constitution. In dismissing the objection, the Court of
Appeal held as follows:
the Appellant who would be directly affected by the order to be made under the
application for mandamus is not only void for breach of section 36 of the
Constitution, Order 46 Rule 4 of the Federal High Court (Civil Procedure)
Rules, 1999, it is also void for breach of the immunity granted to the
Appellant from process or proceedings civil or criminal by section 308 of the
Constitution.
subject a person to whom section 308 applies to a civil disability in respect
of any of his fundamental rights guaranteed by the Constitution. At least, it is not intended that it shall
deprive a person concerned the right to fair hearing in the determination of
his civil rights or obligations – as would be the case if the attempt by the
Respondents were to be successful.
read in isolation it should be read alongside other provisions of the
Constitution in such a way as to give effect and validity to the other rights conferred
by the Constitution”.17
contended that since the affected Executives cannot be sued or charged to court
during their term of office, cases that arose before their assumption of office
cannot be continued against them while in office and therefore has to be stayed
to await the expiration of their tenure.
See the cases of Cornel Oluwole Rotimi Vs. Mcgregor18; Bola Tinubu Vs. IMB Securities Ltd.19 and
Media Technic Nigeria Ltd. Vs. Lam Adesina20
scope of the cover provided by Section 308 of the Constitution, Hon. Justice
Oduyemi JCA had this to say in Alamieyeseigha’s case (Supra)
persons enumerated in subsection(3) thereof so long as each of them holds the
office stipulated is an immunity from civil or criminal proceedings instituted
or continued against him; immunity from
arrest or imprisonment during that period either in pursuance of the process of
any court or otherwise or the application for or issue of the process of any
court requiring or compelling the appearance of a person to whom the section
applies. It is settled law that any
breach the provisions of section 308 of the Constitution renders such process
or proceedings civil or criminal, null, void and of no effect.”21
that the officers listed in the said section cannot be served with any court
process. No court can lawfully exercise any jurisdiction on him. If any court does, the exercise of that
jurisdiction shall be a nullity.
are civil in nature. Not much have been
seen or recorded on the interpretation and scope of the concept in criminal
cases. Not until 2002, the Executive
Immunity clause was perceived as almighty, unquestionable and absolute. That the President, Vice President, Governors
and Deputy Governors cannot even be investigated talk less of being prosecuted
while in office was the popular perception. That position was decisively changed in 2002
when our court put their feet down and insisted that the listed officers may
not be prosecuted in view of the clause, but, they can most certainly be
investigated for any criminal offence they allegedly commit while in
office. This was the case of FAWEHINMI VS. INSPECTOR GENERAL OF POLIC
& 2 ORS.22
saddled with specialized responsibilities and functions of security, intelligence
and investigations, this ground breaking case will be of particular interest
regarding the scope and interpretation of the subject under discussion. The facts of the case are briefly as follows:
Gani Fawehinmi SAN had petitioned the Inspector General of Police alleging the
commission of a crime against the person of the Governor of Lagos State. The petitioner invited the Inspector General
of Police to investigate the allegation contained in his petition pursuant to
its powers under section 4 of the Police Act.
The IGP in his wisdom or otherwise replied to the petition citing
section 308(1) of the Constitution as preventing him or the police from
carrying out an investigation against the sitting Governor.
this reply, the petitioner went to court claiming declarations and order of
mandamus compelling the Respondents by themselves, their agents, servants and
privies to investigate the complaints submitted by the Applicant. The Federal High Court, in a considered
opinion, held that the allegation of crime against the Governor could not be
investigated by the Police by virtue of section 308(1) of the Constitution
which granted immunity from criminal investigation against the President, the
Vice President, the Governor and the Deputy Governor.
quare!, from the wordings of section 308 of the Constitution, does the
Constitution really prevent the investigation of allegation of crime? No, it
does not. We shall see this very shortly.
Gani Fawehinmi SAN, the indefatigable anti-corruption crusader will not have no
for an answer. This he demonstrated by promptly appealing against the judgment
to the Court of Appeal contending that;
trial judge erred in law in holding that the Respondents are
Constitutionally barred by section 308 of the Constitution from investigating
allegations of crime made by the Appellant against the Governor.
when he held that investigation by the Nigerian Police Force into criminal
allegations against a governor amounts to legal proceedings. iii That the
learned trial judge erred in law when he held that section 308 of the
Constitution confers immunity on the Governor of a state against investigation
into criminal allegations against him.”
Court of Appeal set aside the decision of the lower court and held pointedly
that under section (4) of the Police Act, the Police has the duty to detect crime.
Implicit in that duty is the duty to investigate complaints on the commission
of crimes. Furthermore, the court
held that section 308 of the Constitution does not help or protect the persons
covered under the section from Police investigation. That the use of the word “proceedings” after civil or criminal” in section 308 (1) of the
1999 Constitution makes it clear that what the draftsmen had in mind was
proceedings in court.
Court of Appeal rejected the interpretation of the lower court that legal
investigation of any matter more often than not usually leads to legal
proceedings. Their Lordships stated that
the meaning ascribed to the said provision (by the lower court) is too extensive
and wide. In his contribution Aderemi
JCA (as he then was) at page 528 of the report stated and I quote.
the Police Act, the Police has inter alia, the duty to detect crime. In the performance of that all important
duty, the police in trying to discover whether or by whom, an offence has been
committed, he is entitled to question any person (emphasis mine) whether
suspected or not from whom he thinks that useful information may be
obtained. That very act of the police is
called investigation” 23
interpretation of the lower court that such an investigation will offend the
provisions of section 308(1) because the investigation will lead to the arrest
of the Governor and his eventual prosecution.
be noted, borrowing the opinion of the Court of Appeal on this point, that when
section 4 enjoins the Police to investigate, it only demands from the police
the verification of the allegation preferred.
In other words, to inquire into the authenticity of the allegation where
the allegation is found by the police to be well made and a prima facie case
has been made from the process of the investigation, there will be a resort to
the court of law for criminal prosecution or proceedings. The preferment of a former charge in the
court of law is the beginning of criminal proceedings and is an offshoot of a
criminal investigation carried out by the police.
the decision of the Court of Appeal was confirmed by the Supreme Court (the
highest court of the land) in unmistakable terms. The Supreme Court has held
that any of the office holders mentioned in section 308 of the 1999
Constitution can be investigated by the police for any allegation of crime or
offence alleged against him. The immunity conferred by section 308 does not
confer on any of them immunity from Police investigation. See generally Fawehinmi Vs. IGP.24
the state of the law in Nigeria today. I
submit with authoritative firmness that nothing stops the law enforcement
agents acting under section 4 of the Police Act Cap P19 LFN 2004 which
donates the duty to prevent and detect crime, preserve law and order and
protect life and property from going after anybody including those covered by
the Executive Immunity. In the same
vein, the Police, on the strength of this same law can investigate any
allegation of crime of corruption or any other crime whatsoever leveled against
the President, Vice President, Governor and Deputy Governor.
criminal prosecution or criminal proceedings in the language of the Constitution
is only one of the consequences of criminal investigation. If section 308
forbids criminal prosecution as it is presently constituted, prosecution is not
the only consequence of a successful Criminal investigation. The outcome of
such criminal investigation, I suggest, can be kept in safe till the public
officer is out of office. Better still, the outcome of such criminal
investigation can be laid by the investigating agency before the parliament,
that is, the National Assembly with respect to the President and the Vice
President or the House of Assembly with respect to the Governors and Deputy Governors,
to provoke the activation of impeachment process under sections 143 and 188 of the Constitution respectively. The
failure of politicians in any of the Houses to take this step can be checkmated
by the peoples power through protest or other forms of civil disobedience to
force the parliament to do the needful.
fortified in this position by the pronouncement of my law lord Hon.
Justice Uwaifo JSC in his contribution to the judgment in Gani
Fawehinmi Vs. IGP (supra) when he said;
protected under section 308 of the 1999 Constitution, going by its provisions,
can be investigated by the police for an alleged crime or offence is, in my
view, beyond dispute. To hold otherwise
is to create a monstrous situation whose manifestation may not be fully
appreciated until illustrated… the evidence may be useful for impeachment
purposes if the House of Assembly may have need of it. It may no doubt be used for prosecution of
the said incumbent Governor after he has left office. But to do nothing under the pretext that a
Governor cannot be investigated is a disservice to the society”.25
the Supreme Court was only confirming the public opinion on this issue
vis-à-vis the pervading act of corruption in high places – a cankerworm that all
have agreed needs to be comprehensively addressed if Nigeria must see
development and its people take advantage of its enormous God given
resources. Everybody, particularly to
those of us who belong to the Sociological school of jurisprudence, it would
have been unimaginable if the Supreme Court had reinstated the decision of the
High Court to the effect that because of the Constitutional immunity a Governor
cannot be investigated and the speculative assertion that “investigation
will lead to arrest and prosecution.”
law and practice that, not all investigations lead to arrest and prosecution. As men and women in the security network you also
know this too.
fully with the Lordships of the Supreme Court when they said that:
do not include police investigation as an act.
The findings or the result or conclusions reached eventually in the
investigation could. It is true that the
evidence required in the course of police investigation may be used in criminal
proceedings and become decisive of their outcome.”
that this decision has clearly whittled down the potency of the immunity clause
contained in the Constitution. We only
need to take full advantage of the development in order to forcefully instill
discipline, transparency and accountability in Governance. I am therefore going
to dwell more on the subject of investigation in order to take full advantage
of the judgment.
before I do that, let me conclude on the scope of the clause by saying that authorities
agree that section 308 does not apply to proceedings in election petition cases
involving the election of the Governor.
In Alliance for Democracy Vs. Ayodele Fayose No. 1,26 Muri Okunola JCA (Now of blessed memory) said
and I quote:
section 308 of the 1999 Constitution of the Federal Republic of Nigeria are not
applicable to confer immunity on a state Governor in an election petition
involving his election to preclude the issuance of subpoena on him? Or
put in another way, the immunity provided by the provisions of section 308 of
the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is
put in abeyance when his election is being disputed before an Election Tribunal
as to make him amenable to being compelled by the subpoena to tender
document(s) or give evidence before the Election Tribunal”.27
juncture, may I say that the issue is not about the challenges of Immunity in
our constitutional jurisprudence but about the relevance of Immunity itself,
having regards to the nations contemporary experience in governance. After all, the immunity covers the President,
the vice President and 36 State Governors and their Deputies only out of the
multitude of political office holders that are in one position of authority or
the other. Even, for the category of
people covered by the Immunity, their children, wives and cronies are not in
any way covered. Secondly, the cover is
not for life. It operates only while in
office so its effect is to postpone the day of reckoning only. It does not
remove it and what more there is no statute of limitation against crime.
challenges that we face for me are how to have an effective and functional
crime investigation system and effective policing and monitoring of high
profile suspects. How to evolve the
necessary political will, courage and determination to punish offenders, irrespective
of their social status. How to equip the Police and other specialized
investigative agencies such as the ICPC, EFCC and the Special Fraud Unit of the
Police in order to have an efficient criminal justice administration system.
business of crime investigation has gone far beyond, “face me I face you” interview. With modern technology an individual can be
investigated without him knowing about it.
Gone are the days of “manual” investigations where a suspect is arrested
even without sufficient evidence upon which to charge or caution him. The Agencies
must in the course of their investigation reach a stage where it becomes
apparent to them from evidence gathered by them that there is sufficient cause
to believe that an accused has been discovered.
this is the need for the Law Enforcement Agents to take advantage of the
enormous powers donated to them by the Law for credible discharge of their
duties and responsibilities. For instance, there is, for the EFCC a general and
asset investigation unit established under Section 12 of the EFCC (Establishment)
Act 2004 which is charged with the responsibility for the prevention and
detection of offences in violation of the provisions of the Act. There is also
the provision for identification and tracing of proceeds and properties
involved in any offence under the Act.
By virtue of Section 42 of the EFCC Act, the EFCC, I submit can
investigate the asset of any person in or out of power suspected to have run
foul of not only the EFCC Act itself but also the Money Laundering Act, since
most of the ill gotten wealth will constitute an offence under the Money Laundering
Law anyway.
powers are vested in the ICPC and the Special Fraud Unit of the Nigerian Police. Section 6 of the Act empowers the operatives
to where reasonable grounds exist for suspecting that any person has conspired
to commit or has committed an offence under the ICPC Act or any other law
prohibiting corruption to receive any report, investigate them and in
appropriate cases to prosecute the offenders.
powers are there. The challenge is to put them to effective and productive use
in order to maintain law and order and instill sanity in our political office
holders. Still talking above effective and efficient crime investigation, two
factors I believe are predominantly responsible for the shoddy and abysmal
performance in crime investigation in Nigeria. These are lack of proper funding
and Corruption. I won’t bother you
to talk about corruption; it is a vice we all know.
regards to lack of proper funding, this is what the Tell Magazine of June 6th 2005 – a popular news magazine
in Nigeria quoting his interview with a Police officer said.
D.P.O. as recent as 1997/1998 corruption in the force was something that was
done with utmost discretion and with facts unlike today that policemen on stop
and search brazenly demand money from members of the public and sometimes even
kill for failure to drop the mandatory N20. But it is no one’s fault. Previously D.P.O’s received quarterly
allocations for the running of their stations while operational materials like
statement forms for both complainant and suspect, duplicating papers, biros,
files and bail bonds were supplied from the headquarters to the stations. But suddenly the quarterly allocations
stopped. Initially, we thought it was a
temporary thing and D.P.O’s started to bring these things from their pockets
but when it persisted, they had to resort to what is now called in the force
“Self Generating Fund”
in his interview with the Tell Magazine by saying that
fueling of patrol vehicles for outside investigations, payment of informants
and other
expenses. It is this money they (The
Police Men) take from you that they use to fuel their cars and do all the
police work.
through yet. This was his conclusion
N20.00 you people complained about, police activities will grind to a
halt”.
said
stations, nobody buys them fuel repair their patrol vans and other operational
vehicles when they break down. Even when you lose any of your men, you as the
DPO have to make the burial arrangement and raise money for taxing your men.
The situation is bad”.
I am not aware of any Police Force of any Nation given this state and
circumstances, including a deplorable level of incentive and encouragement that
can operate optimally. These are the real challenges and these are the issues
that should attract our primary attention. I wonder if the above does not still
represent the position even today except perhaps the Policemen serving in Lagos
State. I was made to understand that Lagos State through its autonomous
Security Fund provides enormously for the Police in terms of provision of
equipments, incentives and operational vehicles.
therefore, even, if the immunity clause in the constitution is removed today and
I am totally in support of its removal from the constitution, if nothing is
done in the direction I have highlighted in this paper to make the system work,
abuse and misuse of power will continue unabated.
listening.
SAN
Nigeria, Past General Secretary of Nigerian Bar Association. A member of the distinguished Body of
Benchers and Principal Counsel in the
Chambers of Dele Adesina & Co. 109, Opebi Road, Ikeja, Lagos and 23, Kolda
Street, off Adetokunbo Ademola Crescent, Abuja.
the Federal Republic of Nigeria.
Edition Page 752
Edition Page 753
offence of murder which is liable to death penalty.
imprisonment.
of Justice C. Oputa by George Oputa page 66
Executive Immunity by Femi Falana Esq.
6 NCLR pg 338 at page 342
6 NCLR pg 338
144
(Supra) at page 161
542;
particularly at page 528
606.
Dele is unbeatable in terms of his leadership capacity at the Bar- Chief J.K Gadzama SAN
Former Chairman of the Nigerian Bar Association (NBA) Section on Public interest and Development Law ( SPIDEL) Chief Joe Kyari Gadzama SAN, last today in Abuja described Mr. Dele Adesina SAN as unbeatable in terms of his leadership capacity at the Bar.
Chief Gadzama stated this while receiving Mr. Adesina and his team who paid him a courtesy call at the J-K Gadzama Court in Abuja. He said “In terms of capacity in the present context you are unbeatable. But what is the assurance that the process will be transparent and the results of the exercise will reflect the votes and will of the people.
“You were the General Secretary of the NBA when I was chairman of Abuja branch and your record of achievements are there for all to see”.
Chief Gadzama also said: “I believe in the regional groups, I am a trustee of the Arewa Lawyers Forum and therefore cannot go against the decision of Egbe Amofin and their candidate. When you stepped down for Mr. Oluwarotimi Akeredolu SAN in 2008, some of us were not happy with you.
You have a huge support base in my branch, most of the people in your entourage are my people and I cannot say no to you.You don’t need NBA Presidency to get to the top, it is all about service to God and humanity. If you believe you can serve the association now, please go on. Iwill consult with my people to agree on who to support in the race”
In his response, a Partner in J-K Gadzama LLP, Mr. Mohammed Mongono said: “Be rest assured that you have no problem with me and those who will listen to me. Others may come but one is matured to take his own position, so feel free to visit us any time. Mongono also stated that nobody has the institutional memory more than Mr. Adesina and therefore he has all their support. He complained that nobody was appointed into the Electoral Committee of the NBA from Maiduguri, Biu and Damaturu branches of the NBA
and that as a former chairman of Maiduguri Branch, he was disappointed at this and does not know what they have done to deserve this.
Dele Adesina SAN Quote on prosperity of young lawyers
We need a prepared leadership and not an accidental leadership. Only a prepared leadership can guarantee success for his organization or his society. The prosperity of the young generation of lawyers in this country today may appear uncertain but believe me that it is possible for you individually and collectively to succeed and prosper in the Profession. You know what? I wish to say that if it is possible, it is practicable and if it is practicable, then, it is realizable once we apply ourselves spiritually, physically and professionally to the ideals and ethics of the Profession. The truth is that you must be determined and cut the right picture for you to succeed. As I always say, your picture determines your future.
Culled from Dele Adesina SAN’s Goodwill Message To The Young Lawyers Forum (Y.L.F) Ilorin Branch, on the occasion of their Annual Bar Dinner which held on 7th December, 2019
LAWYER ASKS COURT TO SET ASIDE 2019/2020 NDDC BUDGET SUBMITTED BY BUHARI TO NATIONAL ASSEMBLY OVER NON-INAUGURATION OF GOVERNING BOARD
Challenges Inauguration of NDDC Advisory Committee without Board.
Lagos-based lawyer and human rights activist, Mr. Inibehe Effiong, has dragged President Buhari, the Attorney General of the Federation, Abubakar Malami SAN and the National Assembly before the Federal High Court in Abuja over the President’s ‘illegal’ submission of the 2019 and 2020 budget estimates of the Niger Delta Development Commission (NNDC) to the National Assembly without and in the absence of the Governing Board of the NDDC.
The case which was filed on Wednesday, 11th March, 2020 with Suit No: FHC/ABJ/CS/349/2020 also has the Minister of Niger Delta Affairs, Godswill Akpabio, the NDDC and the Ag. Managing Director and head of the Interim Management Committee of the NDDC, Prof. Kemebradikumo Daniel Pondei, as 4th, 5th and 6th Defendants, respectively.
Effiong in his Originating Summons asked the court to determine the following four questions:
“Whether by the provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.) Act, 2000, the President of the Federal Republic of Nigeria can validly submit estimates of expenditure and income (budget estimates) of the Niger Delta Development Commission to the National Assembly without and/or in the absence of the governing Board of the Commission.”
“Whether the 2019 and 2020 estimates of expenditure (budget estimates) of the Niger Delta Development Commission is not ultra vires, illegal, invalid, null and void having been submitted to the National Assembly by the President without and/or in the absence of the governing Board of the Niger Delta Development Commission in view of the express provisions of Section 18 (1) of the Niger Delta Development Commission (Establishment etc.), 2000.”
“Whether the Interim Management Committee appointed by the President of the Federal Republic of Nigeria to manage and supervise the affairs of the Nigeria Delta Development Commission, can legally exercise the power exclusively vested in the governing Board of the Commission, including entering into contracts and expenditure of the funds of the Commission, in view of the express provisions of Sections 8 and 14 (3) of the Niger Delta Development Commission (Establishment etc.), 2000.”
“Whether the existence and inauguration of the governing Board of the Niger Delta Development Commission is a condition precedent to the inauguration of the Niger Delta Development Advisory Committee; a body statutorily charged with the responsibility of advising the governing Board and monitoring the activities of the Commission in view of the provisions of Section 11 (2) of the Niger Delta Development Commission (Establishment, etc.) Act 2000.”
In his 40 paragraphs affidavit with 8 exhibits attached, Effiong stated that he is from the Niger Delta Region. He sated that President Buhari dissolved the extant Board of the NDDC headed by Senator Victor Ndoma-Egba in January 2019 and appointed an Interim Management Body to manage the affairs of the NDDC. He stated that Buhari in October 2019 wrote to the Senate seeking the confirmation of a new 16 member governing Board which has Dr. Pius Odubu from Edo State as chairman which was approved by the Senate.
Effiong deposed that despite the approval of the governing Board by the Senate, Buhari unilaterally suspended the inauguration of the Board and continued to retain the Interim Management Committee now head by Professor Pondei.
According to the activist, Buhari on the 26th November, 2019 submitted the 2019 and 2020 budget estimates of the NDDC to both Houses of the National Assembly without and/or in the absence of the Governing Board of the NDDC which attracted condemnation from the National Assembly, and that the Senate during its Plenary on Tuesday, 26th November, 2019 passed a resolution directing its Committee on Niger Delta Affairs not to recognize the Interim Management Committee but to relate only with the approved governing Board of the Commission when considering the budgets.
“Following the condemnation of the President’s submission of the said budget estimates without and/or in the absence of the governing Board of the NDDC by the National Assembly and the resolution of the Senate, the President by a letter dated 23rd December, 2019 formally notified the Senate of his decision to “put on hold” the governing Board appointment confirmed by the Senate “to allow the Interim Management Committee to manage the Commission pending the outcome of the Forensic Audit.” Effiong said.
According to the lawyer, in contravention of the earlier Senate resolution, the Senate Committee on Niger Delta Affairs recognized the Interim Management Committee while considering the 2019 budget of the NDDC on the 12th February, 2020 and allowed the said Interim Management Committee to defend the 2019 budget and that on Wednesday, 4th March, 2020 and Thursday, 5th March, 2020 the House of Representatives and the Senate respectively considered and passed the 2019 budget estimates of the NDDC without and/or in the absence of the governing Board of the Commission.
He also deposed that the National Assembly is currently considering the 2020 budget estimates of the NDDC without and/or in the absence of the governing Board.
Effiong also complained that on 10th March, 2020, President Buhari constituted and inaugurated the Niger Delta Development Advisory Committee at the Council Chamber, State House, Abuja, consisting of the nine Governors of the Niger Delta States and other persons appointed by the President without and/or in the absent of a governing Board for the Niger Delta Development Commission.
In his written address, the Lagos lawyer argued that the power to submit estimates of the expenditure and income of the Commission is statutorily vested in the Governing Board of the NDDC and not the president. He contended that the role of the President is that of agency; in the sense that the President merely acts as the courier of the Governing Board. The President, he argued, cannot perform his role under Section 18 (1) of the Act without and in the absence of the Governing Board. He said that a contrary interpretation will do direct violence to the spirit and letters of the NDDC Act.
Effiong further argued that “only the Governing Board of the Commission can exercise the power exclusively vested in it by the NDDC Act. There is no part of the said Act that empowers the President to put the existence of the Governing Board “on hold” and arrogate the statutory power of the Governing Board to an Interim Management Committee. The Interim Management Committee led by the 6th Defendant is an aberration and has no statutory backing”
On the inauguration of the Niger Delta Development Advisory Committee, Effiong submitted that “the existence of the Governing Board of the Commission is a condition precedent to the constitution of the Niger-Delta Development Advisory Committee. This is only logical since the advisory committee is required to advise the Governing Board. It is therefore my respectful contention that the inauguration of the Advisory Committee by the President is premature and against the due process of law and the intendment of the NDDC Act without and/or in the absence of the governing Board.” He argued.
Effiong prayed the court to declare that the President cannot validly submit the budget estimates of the NDDC to the National Assembly without and/or in the absence of the governing Board of the Commission. He therefore asked the court to set aside the 2019 and 2020 budget estimates of the NDDC submitted to the National Assembly by Buhari.
He also prayed for an order of injunction restraining the Interim Management Committee from exercising the power of the Board. Finally, he asked that the court should declare that the inauguration of the NDDC Advisory Committee was premature and against the due process of law.
Effiong told the court that “the Defendants should not be given a free hand to run the country amok without recourse to the dictates of the law. That will only lead to one result – anarchy. This Court has a sacred duty to halt descent into anarchy and uphold the rule of law. It is only by so doing that the future of Nigeria as a democratic country can be guaranteed.”
No date has been assigned for the hearing of the case.
Lawyer Profile: MFON EKONG USORO
Mfon Ekong Usoro holds an LL.M in Maritime Laws from University College London, an LLB (Hons) from the University of Buckingham, B.L (Hons) from the Nigerian Law School and a BSc (Hons) Sociology from the University of Calabar.
Relevant Regional, Continental and International Experience
Usoro is the Secretary General of the Memorandum of Understanding on Port State Control for West and Central African Region (Abuja MoU) – an Inter-Governmental Organization operating under a Cooperative Agreement with the International Maritime Organization with full diplomatic status.
Mfon Usoro has at various times consulted for the African Union Commission. Working with a group of experts, she was pivotal to the drafting and negotiation of the African Union Maritime Transport Charter 2009. She is periodically invited by the African Union Commission Department of Infrastructure to participate in workshops/chair meetings held in Addis Ababa, Cairo etc.
Mrs Usoro also consulted for UNEP [Nairobi] and UICN [Senegal] to work with two other consultants from South Africa and Togo for the revitalization of the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central Africa Region [Abidjan Convention].
Usoro was for several years, the sole Maritime legal consultant to the Maritime Organization for West and Central Africa (MOWCA), an inter-governmental body of countries in West and Central Africa headquartered in Cote d’ Ivoire. In that capacity produced the:
– Memorandum of Understanding on the Establishment of a Regional Integrated Coastguard Network in the West and Central Africa Region 2008. As the Chairperson of the Ad-Hoc Committee on the Establishment of the Sub-Regional Integrated Coastguard Network negotiated and developed a consensus MOU among member States for presentation to and adoption by the Ministers of Transport of the sub-regional organization.
Usoro was appointed in 2009 to chair the ministerial committee of the Maritime Organisation of West and Central Africa (MOWCA) regional Maritime Development Bank in 2009.
For a period spanning over a decade, Usoro regularly attends meetings of the Implementation of IMO Instrument Sub-committee of the MSC Committee of the International Maritime Organization in London and has been privileged to chair twice the IMO Workshop for Secretary General and Database Managers of Regional Port State Control regimes.
She for more than a decade has been actively involved in discussions on liberalization of legal services including attending meetings at the WTO as a member of the International Bar Association Bar Issues Commission, International Trade in Legal Services.
Relevant National Experience
Mfon Usoro is a trade law expert and represents the Nigerian Bar Association at the Nigerian Coalition of Services Industry (NCSI). Mfon was recently appointed the Chairperson of the National Consultative Forum on Trade and Trade Related Negotiations, NOTN.
She was privileged to lead the brainstorming sessions at the services industry consultation on the Nigerian Draft Schedule of Specific Commitments organized by the Nigerian Office for Trade Negotiations in February 2020. She participated as a panelist in 2 panels at the recent National AfCFTA Forum on “Effective Implementation for Industrialization and Inclusive Economic Development in Nigeria” on 5-6 December 2019 co-organized by the United Nations Economic Commission for Africa (UNECA).
At the level of the NBA and apart from representing the NBA at NCSI, Usoro was the Alternate Chairperson, NBA Liberalization of Legal Services Working Group (2012-2014) and past Chairperson, NBA Section on Business Law.
Mfon Usoro is the pioneer Director-General and Chief Executive Officer of Nigerian Maritime Administration and Safety Agency, (NIMASA) and she left the Agency in 2007. She is the chairperson of the Inter-Ministerial Committee for the Finalization of the National Transport Policy for Nigeria.
Corporate Boards
Usoro currently serves as Chairperson, Board of Directors of TIB Asset Management Limited; a Non-Executive Director (Independent), on the board of The Infrastructure Bank Plc; a Non-Executive Director (Independent), on the board of First City Monument Bank Ltd; a Non-Executive Director, on the board of Board of Geometric Power Limited.
National Honours.
Mfon Usoro was conferred with the Officier de L’Ord de Mono, a national honour of the Republic of Togo in 2002; and Chevalier de l’Ordre du Merite Maritime, a National honour of the Republic of Cote D’ Ivoire in 2015.
EMPLOYERS’ OBLIGATION TO GIVE WORK/EMPLOYMENT REFERENCES UNDER THE NIGERIA DATA PROTECTION REGULATION (NDPR) 2019 / Olumide Babalola
From time immemorial, whenever an employee moves to a new employment, it had been a standard practice for employers of labour to give employment/work reference to the prospective employers of such former employees.
The contents of such references varied on case-by-case basis and in most cases, the employees subject matter of the references had little or no knowledge of same and consequently had no control over the transferor or the recipient of such information which may make or mar them in their career pursuit.
With the global prominence of data protection laws and regulations came the need to now interrogate what used to be the routine practice of further processing employees’ personal data without their informed and express consent and thereby violating their rights to privacy in the process except certain other validating factors exist.
A lot has been said and written about employers’ (as data controllers and/or administrators) obligations to their staff under the Nigeria Data Protection Regulation but it must be emphasized that such duties do not end upon cessation of master/servant relationship but endures for as long as the servant’s record are retained by the master, hence accentuating the importance of making and updating employees’ data-retention policies by employers of labour. That is not however the focus of this intervention.
Can employers lawfully send their ex-employee’s references without their informed consent?
By virtue of Article 2.2 of the NDPR, personal data can only be lawfully processed where:
a) Data subject has given consent for specific purposes;
b) Necessary for performance of contract;
c) Necessary for compliance with legal obligation;
d) Necessary to protect vital interest of data subject;
e) Necessary to perform task in public interest
Now, we will consider all the indices of lawful processing of data to ascertain whether or not sending of references falls under any of them while bearing in mind the meaning of employee references (according to https://www.inc.com/encyclopedia/employee-references.html) thus:
“Employee references are the positive or negative comments about an employee’s job performance provided to a prospective employer. In most cases, a prospective employer will contact a person’s current or former employer to seek references as part of the process of considering that person for a new position. Prospective employers check references during the interview process in order to ensure that a candidate’s assertions about his or her job skills and work experience are accurate. In fact, obtaining references is one of the most important parts of the hiring process because it can provide valuable information that sets one candidate apart from others and facilitates a sound hiring decision.”
On Employee’s consent and necessity of processing for performance of contract
Experience has shown that the data subject is seldom or never aware of the request for his employment reference proceeding from his current employer to the former employer, hence an employee’s consent is hardly sought and/or obtained before the exchange of such pleasantries between his past and prospective employers.
Assuming the employee’s consent is even sought and obtained, it is our modest opinion that such cannot constitute valid consent since it couldn’t have been freely given, knowing fully well that his chances of securing the new job may be dependent on favourable reference from his ex-employer, hence such consent is induced especially since the employee may not know the contents.
The provision of article 2.3(ii)(d) of the NDPR is instructive in this respect thus:
“Data Controller is under obligation to ensure that consent of a Data Subject has been obtained without fraud, coercion or undue influence; accordingly:
……
d) when assessing whether consent is freely given, utmost account shall be taken of whether, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary (or excessive) for the performance of that contract.” (Emphasis mine)
From the foregoing provision, it is our considered opinion that: (a.) The status and bargaining power of an employer (past or present) constitutes undue influence on an employee to give consent for the processing of his personal data in order to secure another employment and (b.) Most employment offers/contracts are made subject to references from past employers which, in our humble opinion, is not necessary for the performance of the subsequent contract except in cases of crime or other vices.
Necessary for legal obligation
A legal obligation has been defined as any obligation from time to time created by any enactment or authority. The Labour Act, Cap 198, Laws of the Federation 1990 (LA) is the principal law regulating labour relations in Nigeria but out of its 92 sections none is expressly dedicated to employer’s obligation to provide work reference or work certificate.
Sections 7, 8 and 9 of the LA expressly list matters that must be contained in an employment contract but the obligation to provide employment/work reference is conspicuously absent and thereby activating the canon of interpretation of ejusdem generis rule to dislodge any suggestion that employment reference is contemplated by the relevant sections. See Federal Republic of Nigeria v Ibori (2014) LPELR- 23214 (CA).
From the foregoing, we again, modestly conclude that, under the extant LA, an employer does not have any legal obligation to give employees reference/work certificate with or without request.
Public Interest
Employment contracts are, by their nature, private agreements with the exception of employments with statutory flavour, which are arguably public matters, since the government is the employer and wages are paid from public funds.
The Nigerian Supreme Court in Centre for Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518 @ 583, defined the term “public interest” as:
“…the general welfare of the public that warrants recognition and protection of something in which the public as a whole has a stake especially, an interest that justifies government regulation.”
Admittedly, although the public is interested in how public funds are spent, this writer modestly thinks, positing that employment reference is a matter of public interest is, drawing the principle too far, except always, such employee’s subsequent employment constitutes grave danger to the state as a whole.
From the apex court’s definition above, can one now say that a civil servant’s employment reference concerns the general welfare of the public that warrants recognition and protection simplicita? I humbly, think not!
Vital interest of the employee
Although vital interest is not specifically defined under the definition article of the NDPR, an inference can be drawn as to its meaning from article 2.12(f) thus:
“The transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; provided, in all circumstances, that the data subject has been manifestly made to understand through clear warnings of the specific principle(s) of data protection that are likely to be violated in the event of transfer to a third country…”
(Emphasis mine)
Indubitably, good references are in the interest of an employee, but the NDPR is clear that, processing such without consent can only be lawful where done in the data subject’s vital interest and it is our belief, that except of course, where the employee is bedridden and is unable to give consent but that is rarely the case where employers give references without recourse to the employees.
Flowing from the above, this writer opines that, an employer’s provision of employee’s reference to a third party without the employee’s express consent does not fall under processing in the latter’s vital interests contemplated under paragraph d of article 2.2(ii) of NDPR.
Performance of contract
Article 2.2(ii) provides that:
“Without prejudice to the principles set out in this regulation, processing shall be lawful if at least one of the following applies:
……
Processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subject prior to entering into a contract.” (Emphasis mine)
From the clear provision above, it appears settled that, an employer is at liberty to provide employee’s work reference without the requirement of seeking further consent once such a clause is embodied in their employment contract or any other written agreement between the parties.
The problem that arises here is, where there is no such clause in the employment contract, would such processing still be lawful? This poser seems to have been answered by the National Industrial Court of Nigeria (NICN) in the case of Kelvin Nwaigwe v. Fidelity Bank Plc (unreported Suit No. NICN/LA/85/2014) where Kanyip, J. (as he then was) held that:
“I am persuaded by the force of these UK case law authorities that in appropriate cases there is an implied term in contracts of employment imposing duty on the employer to provide work reference in respect of its employee, whether former or existing. The defendant in the instant case is a Bank and hence a financial institution. This means that the defendant has an obligation to give a work reference to, or in respect of, the claimant, which work reference must be true, accurate, fair and not misleading to a future employer; and I so find and hold. In this respect, relief (c) claimed by the claimant succeeds in terms of the defendant giving a true, accurate, fair and not misleading reference of career record on demand to the claimant.” (Emphasis mine)
Although the decision above was handed down pre-NDPR days, this writer is of the considered view that, the reasoning of the court importing the implied obligation to provide work reference, remains the law in Nigeria until set aside by the appellate court.
Conclusively, as held by the NICN above, in appropriate cases, employers are at liberty to give work reference to their employees’ (past or present) prospective employers without seeking further consent on the strength of the contract of employment pursuant to article 2.2(ii)(b) of the NDPR provided always that the reference must true, accurate, fair data of the employee.
Olumide writes from Lagos, Nigeria and can be reached via olumide@olumidebabalolalp.com
Dele Adesina SAN felicitates with NBA Badagry Branch on the occasion of its Annual Law Week
On behalf of myself and colleagues at Dele Adesina LP, I extend my warm regards to the Chairman, Executives and Members of the NBA Badagry Branch (Heritage Bar) as the Branch holds its Annual Law Week from the 9th to the 13th of March, 2020.
With the theme “The State of the Nation and the Nigerian Lawyer” i am sure the deliberations will be rich and focused on the role of lawyers as the custodian of justice, the conscience of the Nation and a bridge between the government and the people.
Please accept our highest regards.
Dele Adesina, SAN
PUSAN MILESTONES: Promoting Gender Balance in the Legal Profession
Paul Usoro SAN led administration has recorded many wins and achievements so
far, one that stands out is the inauguration of a new leadership for the NBA
Women’s Forum and in the spirit of the International Women’s Day 2020, this
initiative leads the way in ensuring gender equality in the legal profession.
It will be recalled that the Executive Council of the
Women Forum was recently inaugurated by the President of the Nigerian Bar
Association, Paul Usoro SAN on the 17th day of September 2019.
Forum is to give prominence to the promotion of women-Lawyers’ rights and
privileges while also bringing to the front burner gender-related issues and
ensuring that all prejudices and over-shadowy discriminatory practices against
women lawyers become a thing of the past.
Usoro SAN in his speech during the inauguration noted that
the constitution of the Nigerian Bar Association (NBA) mandates that there
should be a women’s forum to address issues that affect women. On the issue of
sexual harassment, he had this to say, “We have just finished our Annual
General Conference (AGC) and one of the very hot sessions was the session on
bullying and sexual harassment. A lot of female lawyers spoke passionately
about their experiences and the general consensus was that the NBA must do
something about it.”
running and they exhibit a line-up of successful female lawyers who have always
shown a passion for excellence and the promotion of the welfare of female lawyers.
The NBAWF held its inaugural General Council meeting on Wednesday the 30th
October 2019, at the NBA National Secretariat Abuja. It immediately set up a
Mentorship Committee which developed a mentorship programme for members.
from 0-5 years at the bar. NBAWF mentoring is intended to encourage and assist
members to develop to their full potentials in all areas of career and life and
will be held at different locations in the country. For instance, it’s take off
session will be held on Tuesday, 17th March, 2020 at the NBA Port Harcourt Bar
Center, Bank road, Port Harcourt, Rivers State.
Chairperson, Chinyere Okorocha, Vice Chairperson, Nsidibe Aideyan, Secretary
and Hajia Safiya Balarabe as Treasurer.
blue-ribbon Council was also constituted by the NBA President comprising very
eminent legal practitioners. These include, Her Excellency, Anna Isiyaku, First
Lady of Taraba State, Maryam Uwais, MFR, Special Adviser to the President,
Professor Joy Ngozi Ezeilo, OON, Dean, Faculty of Law, University of Nigeria,
Nsukka, frontline arbitrator, Dorothy Ufot, SAN, frontline arbitrator, Hajia
Hadiza Magaji, Chief Registrar, Borno State Judiciary.
Secretary, Rivers, State Ministry of Justice, Dr. Foluke Dada, academician,
gender activist and NBA 2nd Vice President; and Ayotola Jagun, Chief Compliance
Officer at Oando Plc.