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I am sorry, my respected Teacher, Prof, Learned Silk and personal OGA, with due respect, Sir, I  have not seen good reasons/support for the call for Paul Usoro to step aside or resign. My position is clear. Charge against Usoro is not charge against the NBA. And it is not NBA that would decide whether or not EFCC has powers to file charges against Mr Usoro. So, NBA should act wisely. 

However, while EFCC believes Mr Usoro has a case to answer, Mr Usoro alleges political with-hunt, saying there are unseen hands. The mere fact that the EFCC issued a statement to say there is a case for Mr Usoro to answer  somehow speaks volumes and lends some support to the call for Mr Usoro to NOT resign. EFCC shouldn’t try to establish its case on social media except there’s more to it. IIn the light of these conflicting  claims, the most reasonable thing is for Mr Usoro to NOT resign. Because, if he resigns and it later turns out to be a witch-hint (a sort of malicious prosecution), Paul Usoro would have been punished most unjustly. 

Let Paul Usoro stay in office, pendente lite. That does no one any harm. Neither the prosecution nor his “complainants” have anything to lose in having him in Office while his trial goes on unless there’re other objectives other than criminal prosecution. On the DUTIES OF THE STATE PROSECUTOR  IN CRIMINAL CASES,” with particulars reference to the duty to be “fair and just” and to not be a persecutor nor to secure conviction by all means, I suggest that EFCC should know from the onset that it is not a party to any Criminal matter it is prosecution. Its role is to ensure that justice is done Nothing more. The status of the state prosecutor in criminal proceedings is well captured by Mr Justice SUTHERLAND of the US Supreme Court  in the case of *Berger v. United States*, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314):

*”The … State Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer.

He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one”*

Good news night, Sir. 

I remain loyal. 

Respectfully,

UDEMS.

Sylvester Udomezue

The case of @officialEFCC vs. @PaulUsoroSAN is currently ongoing at the Federal High Court in Lagos. 

Chief Wole Olanipekun SAN, Lead Counsel representing @PaulUsoroSAN in the matter and other lawyers are in court and ready as proceedings are currently on the way. 

Though the NBA President was not served the charges against him, the EFCC proceeded to share the charges on social media and other forms of the press. An act which has been largely criticised by lawyers on the ground that the EFCC is playing to the gallery by conducting a media trial. 

It has been further reported that the EFCC invited the NBA President to its office this morning but Paul Usoro SAN asked the commission to serve him in court as he would there waiting for them.

The court is full and an overflow of lawyers can be seen outside. Updates would follow shortly

Updates will ff shortly.

. #paulusoroconnect #EFCCvsPaulUsoro https://t.co/nWSUteU0oh

The e-Commerce market in Nigeria is worth around $13 billion; according to a report by London based Economist Intelligence Unit (EIU), the National Bureau of Statistics (NBS) predicted that the e-commerce sector is expected to contribute about 10 per cent, of a projected N10trillion, to the nation’s Gross Domestic Product (GDP) by 2018

However, as e-commerce opportunities expand in Nigeria, so does the risk to unsuspecting users and customers.

Upon Presidential Assent, the Electronics Transactions Bill will be an Act to facilitate the use of information in electronic form for conducting transactions in Nigeria. Furthermore, the Bill seeks to provide a legal and regulatory framework for: 

(a) conducting transactions using electronic or related media; 

(b) the protection of the rights of consumers and other parties in electronic transactions and services; 

(c) the protection of personal data; and 

@Legalnaija 

I have followed the events leading and subsequent to the “reported” Charge filed against Mr Paul Usoro SAN, the NBA President, I must confess that these are interesting times to be alive as a lawyer. For one, as I write, no Court process has been served on Mr Usoro SAN to the best of my knowledge. The Charge is still surrounded in mystery. 

In the past, one would have at least expected a filed copy of such Charge to have flooded the internet in keeping with the Economic and Financial Crimes Commission (EFCC)’s media trial strategy. But, no one has sighted a copy of this controversial document except a draft of what purports to be the Charge circulating on most WhatsApp groups. Strangely, the draft only contains the Statement of Offence without more. Given that some credible media outlet has published not only the Charge Number but the Judge and the Prosecutor handling the matter, it is safe to assume that there is indeed a Charge. 

Now to the real issue, I have come to notice that there are three groups of people who are fueling the debate in respect of the Charge on social media. First, those who are sympathetic to Mr Usoro SAN. This group has one central message – EFCC should leave Mr Usoro alone and stop harassing a man for earning what is due to him from his professional services. 

The second group is made of people who see this incident as an opportunity to cut their pound of flesh from Mr Usoro for obvious reasons. There are splinter sub-groups within this second group but there are all working towards the same objective – to pull Mr Usoro down at all cost. Here, you will find those who lost in the last Nigerian Bar Association (NBA) General Elections and their sympathizers and supporters. You will also find in this group those who are not comfortable with the new order in NBA administration. Of course there are also political vultures who are after the soul of Akwa Ibom State and who must crush any threat both real and imaginary that stand on their way even if it means taking down an armless passer-by. This second group is the most complex of all as it is difficult to decipher the composition of the syndicate. Its members are the ones putting the fraud and money laundering spin on the debate. Prof Ernest Ojukwu is one of the founding members of this second group and his recent veiled call for Mr Usoro to step down as the NBA President did not come as a surprise. Prof Ojukwu’s attention should be drawn to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as he is feigning ignorance of same.  For a man who claims he believes in the rule of law, it is a paradox that he has suddenly forgotten that the presumption of innocence of an accused person forms part of the pillars of the Rule of Law. You do not condemn a man who has not been found guilty. Asking Mr Usoro to step down is tantamount to punishing him for a crime he is presumed innocent of. There are precedents that should guide Prof Ojukwu and members of this group. The Nigerian Senate President did not resign his position when he was standing trial at the Code of Conduct Tribunal for what was popularly reported as a politically motivated charge. Of course there were those who wanted Saraki to resign his position on the mere ground that he was standing trial.  Outside Nigeria, the Israeli Prime Minister, Benjamin Netanyahu is currently facing series of corruption cases but he is still in the office.  

The third group constitutes of professionals who are concerned about the implications of the EFCC actions, not only on the legal profession but on other professions as well. This group is not influenced by any partisanship or inclinations. There are fears amongst the members of this group that there are dangers lurking in the shadows with the way EFCC is veering off from its statutory duties. This last group recognizes the statutory roles of EFCC as provided under the EFCC Act and insists that the Commission should focus on its mandate of fighting economic crimes and allow professionals to conduct their businesses and contribute their quota to the growth of the dwindling GDP of this country. At the risk of sounding immodest, I believe I find myself within this last group. I appreciate the efforts being made by the EFCC to curb corruption in Nigeria but one cannot close his eyes to the derailment in the operations of the EFCC which has been recognized by the Highest Court in the land. I want EFCC to be an institution that is insulated from political manipulations either from politicians or those who have axes to grind against another as it will serve the interest of all if we have strong institutions.  

The real Issue in dispute

A hallmark of a good lawyer is not to make an assumption on issue of facts. I am pretty certain that majority of those who have been calling for the head of the NBA President online are not abreast of the facts leading to the Charge. I am not talking of those who chose to distort the facts to suit their mischievous narratives. I will implore those who are interested in the real facts to accompany me as we patiently navigate through the facts in issue leading to the Charge of Money Laundering against Mr Usoro. I must commend Mr Usoro himself for he has done enough to educate the public on these facts. It is no news that the EFCC has been investigating the affairs of Akwa Ibom State as well other States especially those governed by the opposition party. Recall that the EFCC had at sometime attempted to freeze the account of Akwa Ibom State Government leading to a Suit at the Federal High Court in Uyo filed by the Attorney-General of Akwa Ibom State challenging the powers of the Commission in that regard. EFCC had in its Statement of Defence which has now become a public document, in the Uyo civil Suit made the following allegations:

1. In the course of its statutory functions, it found massive suspicious transactions from the account of the Akwa Ibom State Government in what the Commission termed grand conspiracy between the Executive Governor of the Akwa Ibom State, the Accountant General of Akwa Ibom State, the Attorney-General of Akwa Ibom State, the Commissioner of Finance Akwa Ibom State, one Margaret Thompson Ukpe and Paul Usoro & Co;.

2. In one of such suspicious transactions, on 10 March 2016, the sum of N700 Million Naira was withdrawn in cash from the Akwa Ibom State Accountant General Impress account.

3. Out of the said N700 Million Naira, the sum of N300 Million was deposited in cash in the Zenith Bank account of Paul Usoro & Co without any contractual relationship between the Akwa Ibom State and the said Paul Usoro & Co.

4. EFCC invited Paul Usoro SAN who volunteered extra judicial statement confessing that the said N300 Million was his professional fees for handling Mr Udom Emmanuel’s personal matter before the election tribunal.

5. In a similar vein, the total sum of N1.1 Billion Naira was also removed from the Akwa Ibom State Ministry of Justice Zenith Bank Plc account and lodged in Paul Usoro & Co Access Bank Plc account.

6. That out of the said N1.1 Billion Naira, the sum of N65 Million suspected to be a kick-back was paid to the Attorney-General of Akwa Ibom State by Paul Usoro & Co.

The foregoing is the crux of the Defence of the EFCC in the ongoing civil Suit before the Federal High Court, Uyo. As clearly obvious from the draft Charge circulating on social media, the Charge against Mr Usoro is the regurgitation of EFCC’s Defence in the said Suit and from what has been reported so far, the same Counsel who represents EFCC in the Civil Suit is also prosecuting criminal Charge.

Mr Usoro SAN on his part has informed the public that he volunteered Statements and submitted documents at the EFCC. In his speech at the just concluded National Executive Committee (NEC) of NBA meeting that took place in Abuja on 06 December 2018, he alluded to these facts. The summary of Mr Usoro’s position is that:

1. The N300 Million paid into the Zenith Bank Plc account of Paul Usoro & Co at the instance of Governor Udom Emmanuel, was the professional fee for the conduct of the Governor’s Election Petition appeal before the Supreme Court. As applicable in any organization, Mr Usoro received advice from his Client (Governor Udom Emmanuel) that Paul Usoro & Co’s account has been credited. At that point, Mr Usoro had no idea whether the payment was a cash lodgment and it was only until EFCC interrogated him on the fees that he got to know. People who operate large firms account with distinct accounts department will relate to and identify this.

2. Mr Usoro was the Coordinating Counsel for Governor Udom Emmanuel’s Election right from the Governorship Election Tribunal to the Supreme Court and the payment was for the various Counsel who were members of the Governor’s Legal Team. The records of the Election Petition Proceedings from the Tribunal to the Supreme Court will bear this out.

3. Mr Usoro denied and never stated that the N300 Million that was paid to Paul Usoro & Co was part of the N700 Million Naira that was purportedly withdrawn from Akwa Ibom State bank account. The sum of N300 Million it will be recalled was deposited in cash on behalf of Governor Udom. And of course, there is no legal duty on Mr Usoro or his law Firm to question the source of N300 Million paid by Governor Udom.

4. Mr Usoro not being a staff of Akwa Ibom State was never questioned in respect of the withdrawal of N700 Million mentioned in EFCC’s Statement of Defence in the Civil Suit.

5. As it relates to the sum of N1.1 Billion Naira paid into the account of Paul Usoro & Co between 24 August 2015 and 18 September 2016, the sum was for several arbitral and litigation matters which Paul Usoro & Co was and still handling for Akwa Ibom State and its agencies. This sum was paid by the State Government being the Client of Paul Usoro & Co in those matters.

6. Documents evidencing the said arbitral and litigation matters were contained in the Schedule submitted to the EFCC and the records of the Court proceedings are clear on the representation of Paul Usoro & Co on those matters. Just being curious, what can possibly be the concern of EFCC about the source of funds for N1.1 Billion for 19 cases when it is clearly stated that it was from the accounts of the state government? Has the EFCC traced the funds to determine round tripping to Politically exposed persons?

With the above facts, is it not clear that Mr Usoro has no case to answer and that the case of the EFCC is clearly off base. Section 15(2)(a)(b) of the Money Laundering Act, 2011 under which the Charge was premised, provides that:

“(2) Any person or body corporate, in or outside Nigeria, who directly or indirectly- (a) conceals or disguises the origin of; (b) converts or transfers; any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.

Section 15(3) of the same Act provides for the punishment of 7 years but not more than 14 years imprisonment for whoever is found guilty under Section 15(2) thereof. 

Whilst I do not pretend to know what material EFCC has in its Proof of Evidence to prove beyond reasonable doubt that Mr Usoro concealed or disguises the origin or converts or transfers the sum of N1.4 Billion Naira paid to his Firm as professional fees and that he knowingly or reasonably ought to know that the professional fees are proceeds of unlawful act, it will indeed be a herculean task and the eighth wonders of the World to see how the EFCC will scale through this hurdle of burden and standard of proof given Mr Usoro’s consistent position in this matter.

Of course, it is now clear that that the essence of the Charge against Mr Usoro is not to find him guilty after all, but to embarrass him out of the Office. There were even reports that the timing of Charge was deliberately set to coincide with the NBA NEC meeting. The plan was for Sahara Reporters and other media Trial Courts of EFCC to release the news about the Charge a day before the NEC Meeting so that it will form the basis of a well-orchestrated Motion at the NEC meeting for the impeachment of the NBA President. If it were not so, how else do you explain a situation where a Charge is filed against a Defendant and without serving or even informing the accused person, information about the Charge found its way to online media such as Sahara Reporters? The speculation that EFCC is working with Sahara Reporters and other online media to institutionalize media trial need no further proof. It is therefore laughable to read EFCC’s rejoinder to Mr Usoro’s NBA NEC Meeting Speech where the Commission amongst other things noted that it would not want to engage Mr Usoro on the pages of newspapers and that what is at stake is the legitimacy of the source of the money used for the various payments.  Those who are behind the charade are now speaking, leaving no one in doubt of their clandestine plan. Sequel to the EFCC’s rejoinder, Prof Ernest Ojukwu followed suit with a call Mr Usoro to prepare his resignation letter and even went ahead to add that the 1st Vice President take over as the acting President pending when Mr Usoro clears himself. Prof Ojukwu even suggested that he will ensure that the Trial does not exceed six months so that Mr Usoro would come back and conclude his tenure if he acquitted. What a height of desperation on the part of a man who should know better not to presume someone guilty without Trial. What exactly do Prof Ojukwu and his co-travelers want? I ask this because, Prof Ojukwu came distant third and up till now has not filed any Suit challenging the Election. Can’t he move on and prepare for the next NBA election? How long is he going to nurse this bitterness? If he truly loves the NBA as he professes, there are other ways he can contribute without sowing a seed of discord amongst the members.  

EFCC on its part should focus on its statutory mandate and leave professionals alone. If Mr Magi feels law practice is too lucrative, he should resign from position and proceed to acquire LL.B and B.L so that he can the same fat professional fees. It is on record that he had in the past questioned the professional fees being collected by Senior Advocates. Reading through the EFCC’s reported rejoinder, it is not in doubt that the Charge against Mr Usoro is an attempt to question the source of funds used in settling Mr Usoro’s legal services. To me, what EFCC has set out to do is turn lawyers into investigators who must first of all determine the source of funds used in settling their legal fees becoming accepting. That is utterly ridiculous and finds no basis in any known law. It will be too much to ask considering that the sum of N300 Million paid to Mr Usoro by Governor Udom was paid in cash and there is no duty in law or equity on Mr Usoro to confirm from Governor Udom the source of the N300 Million Naira before accepting same. As it relates to the sum of N1.1 Billion Naira, the case of EFCC is even more hopeless given that Mr Usoro has shown that the said sum was paid by Akwa Ibom State Government in respect of arbitral and litigation matters being handled by Paul Usoro & Co for the State government. Where then is the crime committed in this case? Beyond the issue of lawyer-client privilege, it will be incongruous to expect a professional to turn himself into an investigator after rendering services to his client, in order to ascertain the source of funds used in settling his professional fees. That will be too dangerous a precedent to set. 

It is a matter of public knowledge that EFCC outsources some of its legal services to external lawyers. Virtually all the Ministries of Justice in Nigeria brief external lawyers possibly due to complexities of those matters or as a result of shortage of man power at the Ministries. Clearly, EFCC is chasing shadows and the earlier the Commission realizes that there are important cases pending before various Courts in Nigeria demanding its attention, the better. The need for EFCC to focus on its key mandate cannot be over-emphasized. I am presently defending some Defendants in some criminal matters involving EFCC and some of those cases have been scuttled on several occasions due to the fact that EFCC’s officials who are the witnesses in the matters are not available. In some cases, it is their prosecutors that are not available. Thus, if EFCC continues to be used as an instrument in the hands of politicians and those who have axes to grind against another, the Commission will gradually lose public confidence and deviate from its core statutory mandate. From being a debt collector, to delving into purely contractual/civil matters and now to investigating the source of lawyers’ fees. Who knows the next victim of the EFCC shadow chasing onslaught? My only worry is that tax payers’ funds are being utilized in this wild goose chase. Sadly, EFCC is not a good student as it has refused to learn from its sister Federal Government agency or from the Commission’s own previous futile ventures outside its core mandate. Sometimes in 2014, the Federal High Court sitting in Abuja had in Suit No. FHC/ABJ/CS/173/2013: Registered Trustees of Nigerian Bar Association v. Attorney-General of the Federation & Central Bank of Nigeria refused an attempt by the Federal Government through the Special Control Unit against Money Laundering (SCUML) to regulate the practice of legal practitioners by requesting them to register in order to declare the source of their professional fees. In that Suit, an injunctive order was sought not only against SCUML, National Financial Intelligence Unit (NFIU) but also against the EFCC to restrain them from enforcing the provisions of Section 5 of the Money Laundering Act in relation to legal practitioners. The Money Laundering Act has not been amended since the Federal High Court decision which I understand has been affirmed by the Court of Appeal. The back-door attempt by the EFCC to revisit the issue must be resisted. In the very recent case of EFCC V. DIAMOND BANK PLC & ORS (2018) LPELR-44217(SC), the Supreme Court descended heavily on EFCC and other law enforcement agencies and condemned the practice of security and investigating agencies going outside their statutory mandates. The Supreme Court came down hard on not just the EFCC but other sister agencies such as the Police in a notable pronouncement reproduced below:

“It is important for me to pause and say here that the powers conferred on the Appellant, i.e. the EFCC to receive complaints and prevent and/or fight the commission of financial crimes in Nigeria pursuant to Section 6(b) of the EFCC Act (Supra) does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions as in this case. 

The EFCC has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted by the complaining party, and be bold enough to counsel such complainants to seek appropriate/lawful means to resolve their disputes. Alas! the EFCC is not a debt recovery agency and should refrain from being used as such. 

The subsequent actions of reporting the matter to the police and to the Appellant were nothing but abuse of process of law. What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies. The agencies themselves need to first come to this realization, shun all entreaties in this regard and they will see confidence gradually restored in them.”

EFCC must take a hint from the above notable pronouncement of the Highest Court in the land and puts its house in Order. The Commission should resist the temptation of being used either by desperate politicians or those whose desperation to lead the NBA and quest for power have driven into megalomaniac frenzy. Prof Ojukwu falls in this category of desperate sore losers whose antics must be clear to all including the EFCC. The real issue surrounding the Charge against Mr Usoro is not Money Laundering or Fraud Charge. Rather, what is in contention is the soul of NBA and the refusal of losers of the last NBA Elections to sheath their swords. In issue is also the vested interest within NBA who feeds off NBA and are now feeling threatened by the new Order of transparent and accountable regime of Paul Usoro SAN. There are also desperate politicians have seized the opportunity created by the sore losers These desperate politicians who have their own agenda are ready to rope Mr Usoro into the labyrinth of their political machinations in a bid to actualize their desire. Discerning minds and lovers of our noble profession must rise and speak up to save the soul of the legal profession. 

The unfolding Paul Usoro drama scripted by the APC and acted by EFCC  is an excruciating example of a very primitive and execrable brand of Politics being played by the government of Nigeria.

Every discerning mind understands that this drama is all about the unconstitutional takeover of Akwa Ibom state by hook or crook by the ruling party with the active collusion of some indigenes of the state.

Added to this and as if to add salt to injury, Paul Usoro (SAN) had the “unfortunate” task of being the counsel to the Senate president Mr Bukola Saraki in his trail at the Code of Conduct Bureau (CCB) at the instance of the Federal government.This he carried out dutifully  and successfully with great attention to details; one of the hallmarks for which he’s known over the years. 

For this, carrying out his lawful duty as a legal practitioner he’s been marked for destruction and this plan is being accentuated by a few people in the bar with access to the levers of power who are still bitter over his guts to contest for the last NBA president election which he won.

Usoro was counsel to both Udom Emmanuel and Bukola Saraki people the government/APC attempted to heckle and discomfit for political reasons. Usoro’s only sin is that he’s seen as a pro PDP lawyer meanwhile he’s never rejected an APC brief.

The idea therefore is since they missed Udom and Saraki because of Usoro’s brilliant advocacy based on evidence, they would get him (Usoro) It’s like in a game of football it’s said usually when the game gets tough, “if you miss the ball, don’t miss the leg” The NBA president Paul Usoro SAN, is unfortunately the “leg” in this crossfire, primitive, rough-hewn political  game which the APC is known for.

How do you explain the fact that information regarding the charge of Mr Usoro SAN is already on social media meanwhile, he hasn’t been served. 

Why prosecute the case on Social media and not the court? The only plausible reason would be that they know their case is as wishy-washy and namby-pamby as a lamb that can’t stand the weight of it’s own wool. 

They idea therefore is to cause Mr Paul Usoro embarrassment in the eyes of the public particularly among lawyers but this has failed woefully and boomeranged as it has attracted the angst of majority of lawyers who understand that no law puts a cap on the amount a counsel ought to charge his client for services rendered which Mr Paul Usoro SAN carried out judiciously.

Why not equally look into the accounts of the states governed by the ruling party or the accounts of the lawyers who stood for them at their trying moments at the Election Tribunals to know how much they were paid by their clients  (State governors)

It’s in the light of the prevenient therefore that i must first salute and appreciate our eminently distinguished learned Seniors, Elders and other members of the Nigerian Bar Association for your continuous understanding of the issues and your undaunted and unblinking support and solidarity for our president at this trying period not just for him but for the Bar for it’s the Bar that’s under attack today. If we allow government institutions to begin to interfere and cap how much fees we charge especially when the remonstrance over the fees charged is not coming from our clients,  then we are in serious trouble and our profession is in jeopardy.

This is therefore, the time for lawyers all over the country close ranks and come out enmase to protest and support our president and stand against the forces of facism, totalitarianism, anachronism and all their agents.. 

Let’s fight not just to preserve the Bar but our hard earned democracy. 

God bless our president

God bless the NBA

God bless our Nigeria.

Etimbuk Johnson Esq

*It Would Amount to a Gross Desecration of Nigeria’s Constitution, Rule of Law and Due Process for Paul Usoro to Resign His Position as the NBA President When He Has Not been Found Guilty of any Offence*

Paul Usoro has a duty to protect, promote and preserve the rule or law, the Nigerian constitution and due processs, being the leader of the Nigerian Bar. If he is arraigned in court on corruption charges, let him face the charge. But he has no reason to resign on account of the unproven charges. If he resigns, then he’s a coward and in a gross breach of our constitution and rule of law. He is the number one lawyer in Nigeria; the leader of Africa’s largest bar association. To drive my point home, kindly permit me to refer you to my words, as published on 18 November 2028: *”

1. The adversarial or accusatorial nature of Nigeria’s criminal justice system is entrenched in the provisions of the Constitution of the Federal Republic of Nigeria, 1999, dealling with the presumption of innocence of an accused persons in criminal proceedings in Nigeria. Ssection 35 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, upholds an accused person’s right to be presumed innocent until his guilt is established beyond reasonable doubt?

2, Our system of criminal justice is adversarial and accusatorial not inquisitorial or inquisitional? The major object of the adversarial processes is to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. Hence the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured.

3. The 1999 Constitution insists that an accused person must not be made to suffer any infraction to/of his personal liberty unless and until his guilt is established through due process before a court of law? Note for example section 35. (1) (a)&(b) of CFRN, 1999, as amended): “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;”

See the ratio and legal principles established in clear terms by the Supreme Court in the case of CHIBUIKE AMAECHI v. INEC (2008) 5 NWLR (Pt 1080) where the Apex Court (per George Adesola Oguntade, J.S.C) had declared as follows? “I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power…. An indictment is no more than an accusation… once a person is accused of a criminal offence, he must be tried in a court of law or other tribunal where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. …The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever…. It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law….It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. Even during the trial the burden to prove his guilt beyond reasonable doubt is on the accuser Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences to hold otherwise.” 5⃣ Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 to the effect that “no one may be arbitrarily deprived of this right?”

6. Note the effect of Article 7(1)(b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 that “every individual shall have the right to have his cause heard without prejudice? Does this not comprise, as Article 7 states, the right to be presumed innocent until proven guilty by a competent court or tribunal?

7. Accordingly, we need to be wary of the way we twist our laws in Nigeria to suit our vested interests. We must realize that the rule of law is *for all and for no one particular.* The process of administration of criminal justice under a civilized constitutional democracy operating the adversarial criminal justice system requires as a matter of necessity that everything is and must be done to ensure the safety of citizens and that no one is punished or made to suffer unjustly or prematurely.

8. Further, a major part of the cardinal duties of the state or prosecutor in criminal proceedings as reinforced in the case of *Enahoro v. The State (1965)* 1 All NLR 125 is to be just, impartial and fair and to not persecute or victimize accused persons to achieve illegal ends. The prosecutor has an added duty to refrain from trying to obtain conviction at all cost. Hence in R.  Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court (UK) had warned that “the business of the state counsel is fairly and impartially to exhibit all the facts to the jury. The crown has no interest in procuring a conviction but that the right person be convicted..” Put differently, the function of the state or the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; it is rather to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial (Hon JUSTICE WILLIAMS ORVILLE DOUGLAS). Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (HON JUSTICE BENJAMIN CARDOZO in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

9. The import of all these is that punishment for breach of any law must be done in line with procedures and processes set down by law. Therein lies the indispensability of the supremacy and applicability of rule of law. Anything short of this takes us back to the age of “might is right,” which would usher in an end to constitutionalism and decency, civility and order. It might as well be an end to the existence of an organized state.

10. The accused person does not have any statutory burden/duty of proving his innocence; else we all, one and all, would be at the mercy of the state and the individual whims of the state leaders.

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

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

13. What more can I say on this? It is a truism already that evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged does not and cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence (see Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408; (1975) LPELR-8042(SC). This position is reinforced in the case of Samuel Bozin v. The State (1985) 7 SC 450 where the supreme court had declared that “suspicion, however grave does not amount to legal proof.”

14. Finally, in another Supreme Court case, Osarodion Okoro v. The Sate (1988) SC (Part II) 83, it was held that “the protection of the accused person who is presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.”

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

(See https://thenigerialawyer.com/has-the-recent-supreme-court-decision-in-dauda-v-frn-changed-the-system-of-criminal-justice-administration-in-nigeria-an-opinion-by-sylvester-udemezue/) 

Respectfully,

SYLVESTER UDEMEZUE 

(UDEMS)

It has been more than 24 hours since an online publication quoted Prof Ernest Ojukwu as saying that he would write Mr Paul Usoro SAN to step down upon his arraignment in Court over the Charge of Fraud and Money Laundering.

Having not rebutted the said statement credited to him, one would be right to take it that Prof Ojukwu indeed made the Statement. For the records, Prof Ojukwu came distant third in the last NBA Election and he is not contesting the outcome of the said Election in any Court in Nigeria. He is therefore deemed to have accepted the outcome of the said election. Prof Ojukwu’s comment that he was ‘rigged out of the NBA Election’ underscores his ill-motive and desperation which manifest in the pull-him-down campaign he has mounted against Mr. Usoro since the latter assumed office as the NBA President. How can you assert that you were rigged out in an election which outcome you accepted and did not contest in a Court of Law. How much more unprofessorial can a professor of law be with such a careless statement?

Whichever way one views Prof Ojukwu’s statement, it is neither supported by law nor logic and his recourse to the doctrine of necessity only demonstrates his helplessness and frustration. Prof Ojukwu reminds me of Dr Odinkalu and it is not a surprise that both of them have been working together giving credence to the saying that birds of the same feather flock together. For the discerning minds, Ojukwu’s call for Mr. Usoro’s step aside or resignation reveals the deep hypocrisy that pervades our society today where lawyers thwart the settled principle of law to suit their selfish needs.

First, Ojukwu from his statement refused to even acknowledge the Constitutional presumption of innocence provided under *_Section 36(5) of the 1999 Constitution_* which enures in Mr Usoro’s favour. Ojukwu knows of this Constitutional provision and must have tutored his teaming students on the sanctity of the presumption of innocence. He must have argued before various Judges on the need to uphold this hallowed principle in defence of his Clients. He didn’t not even make any feeble attempt to distinguish its applicability in Mr. Usoro’s case before finding shelter in his contrived doctrine of necessity.

Prof Ojukwu acknowledged that at the moment, Mr. Usoro has neither been served with any charge nor arraigned before any Court. It follows that, he, Ojukwu has not even seen a copy of the Charge in question let alone the proof of evidence, other than on social media. On what basis did he premise his call that once Mr. Usoro is arraigned, he will call or write him to step down. Is it not possible that the Charge is bereft of any merit which explains why Prof Ojukwu should have been circumspect and avoid making baseless statement as this, at least until he sees the proof of evidence?

Clearly, there is no doubt that Ojukwu is one of those orchestrating the malicious charge against Mr Usoro in a bid to pull him down.

People don’t just resign from office becuase they are accused of a crime. If it were not so, all that it would take to have a Governor or President resign from office is to cook up some charges against him and then ask him to resign. Mr Usoro’s only crime is that he worked for Akwa Ibom State and Governor Udom Emmanuel and received his professional fees. It is on this basis that Prof Ojukwu is calling on him to take a leave avoiding to use the exact word “resign” which according to Ojukwu is not necessary under the circumstances.

Just recently, Senate President Bukola Saraki had charges filed against him for offences allegedly committed before he became Senate President. A lot of people including Senior lawyers rallied around Saraki on the ground that the Charge was politically motivated. Some of these same lawyers who insisted that Saraki must not resign as the Senate President are among the ones now asking Mr. Usoro to resign or go on a sabbatical leave. This is just one out of many similar instances. If this is not a hypocrisy of the highest order, what then is? In the same Saraki’s case, even his Party wanted him to resign by all means. The same sore losers in the last NBA Elections are the ones calling on Mr. Usoro to resign his position just because he collected his professional fees.

The call for Mr. Usoro to resign is even laughable when one considers the peculiar circumstances of the Charge. As acknowledged by Ojukwu, the Offences with which Mr. Usoro is charged are not directly connected with the office of President of NBA. This again further justifies the frivolity of the call for Mr. Usoro to resign.

Second, and as the learned Prof acknowledged, the NBA constitution does not provide that an officer of the NBA would have to step aside when a charge is brought against him.

How then would anyone, and of all people, the learned prof Ojukwu, call for Mr. Usoro’s stepping aside or resignation. What is the constitutional basis? What is this hastily contrived doctrine of necessity our dear Prof speaks of? Can’t we for once look before we leap?

I would have expected Prof Ojukwu to use himself as an example to tell us what he would have done if he were in Mr. Usoro’s shoes so we can hold him by his words and not to wake up to call out for Mr. Usoro to step aside. He ingeniously dodged this line of reasoning that he should have towed. It is quite unfortunate that the professor would singlehandedly, without even sampling the opinions of principal members of the Association, invoke the ‘doctrine of necessity’. It is nothing but a jaundiced view of an embittered and disgruntled loser.

There were a lot of stories making the rounds back then about the character issues that bedevilled the learned Prof while he was a lecturer at the Nigerian Law School. There were allusions to the reasons for the learned Prof’s exit from the Nigerian Law School connected to his inability to cling to the position of the Director General of the NLS, after he had attained the position of a DDG. These issues, if true are those that should preoccupy the mind of the Prof, and not to come out to call for the resignation of the NBA President. Would Prof be happy to be assessed and judged on the basis of all the negative stories about him?

Prof must put an end to this unhealthy and infantile campaign of calumny that has characterized most of his utterances from when Mr. Usoro first declared his intention to run, to this present day. It is childish, unprofessional and demeaning of someone of his status.

The truth is that any lawyer can be prosecuted and charged to court in the manner that Mr. Usoro has been charged, even when as in Mr. Usoro’s instance, it is clear that the lawyer is innocent and that the charges are frivolous and bound to fail.

If we continue to subscribe to this shout of resign and clear your name campaign, we would be creating a monster that would consume sooner than later, its proponents. It is better to err on the side of caution.

 Ogaga Emoghwanre