Month: March 2019

INVITATION TO ONE DAY STAKEHOLDERS’ ROUNDTABLE DIALOGUE ON TORTURE PREVENTION STRATEGIES

The Legal Defence and Assistance Project invites you to a one day round table of selected key actors on developing strategies for effective prevention of torture and sexual and gender based violence (SGBV) in Nigeria.

LEDAP, in partnership with the National Committee Against Torture (NCAT),and with support from the United Nation Democracy Fund-UNDEF, is implementing a project titled Community mobilization against torture in Nigeria, which aims at reducing torture incidences by improving the understanding and positive attitude of police personnel to human treatment of suspects and capacity of the civil society organizations and victims to demand for accountability in the pilot states of Lagos, Adamawa and Yobe. 

The round table will hold as follows:

Date:               Monday, 8th April 2019

Venue:            Conference room, Federal Ministry of Justice      

Time:              9.00am -1.00pm

The roundtable will also discuss the project’s activities and strategies for building a strong accountability system within the police force and transparent handling of public complaints. 

Please confirm your participation on or before 21st   March 2019 by SMS or email to Roseline Okoro: roseline892@gmail.com, 07060567001, or Pamela Okoroigwe: Pamela@ledapnigeria.org,

Police to probe death of six-month-old baby in Abuja school

The Nigeria Police Force, on Thursday, expressed its readiness to probe the alleged plot by one of its men, identified simply as Arome, to cover up the death of a six-month-old baby girl, Michelle Onoja.

The mother of the baby, Rebecca Onoja, had reported the Britmax International School, Lokogoma, Abuja, at the Divisional Police Station, Apo, for alleged negligence leading to the death of Michelle.

She alleged that the Investigating Police Officer, Arome, was attempting to sweep the case under the carpet.

Rebecca claimed that the policeman urged her to forget about the matter and forgive the school.

The matter became public knowledge when a lawyer, Ocholi Okutepa, made a Facebook post that Rebecca had dropped her daughter at the day care facility of the school on January 11, 2019, hale and hearty, but she was called by the secretary later in the day to come over to the school.

He said, “The mother received a call at 2.19pm from the school secretary to come to the school. She immediately went to the school, which is less than a minute’s drive from her house. When she got there, she saw about five women praying over Michelle and asked what the matter was, but nobody answered her.

“When Michelle’s mother carried her, she noticed blood stains on her nose and food particles on her hair and nostrils.

“At the point of entering the car to take Michelle to hospital, one of the persons around, who she later got to know was the school accountant, made a remark that was it not the hospital they had just returned from. She was shocked and asked him what he meant and he refused to speak further.

“On hearing this, it dawned on the mother that the school had earlier taken her daughter to hospital without her knowledge, yet none of the other people around could tell her anything. On getting to the Federal Medical Centre, Jabi, Abuja, Michelle was immediately received at the emergency unit and a doctor attended to her but to no avail. He remarked that the baby would have been saved if brought in earlier.”

Okutepa explained that the case was reported at the Divisional Police Station, Apo, adding that attempts get justice for the baby had proved abortive.

“Following the circumstances surrounding her daughter’s death, Rebecca lodged a complaint at the Divisional Police Station, Apo, and the IPO, Mr Arome, was detailed to investigate the matter. Based on the blood stains, the mother advised the police to demand the Closed Circuit Television footage to unravel the circumstances surrounding the mysterious death of her daughter and when Arome demanded the footage on January 12, 2019, he was told that it had been wiped off.

“Since the IPO could not access the CCTV footage, the parents decided that an autopsy should be conducted on Michelle to determine the true cause of her death. The IPO and the parents proceeded to the FMC, Jabi, and the parents paid N250,000 for the autopsy. Before the test result came out on January 23, 2019, the parents were informed that some officials of the school had made attempts to compromise the result but they were resisted by the hospital.

“When the result was ready, it was confirmed that blood and food came out of Michelle’s mouth and nose. The result also indicated that baby Michelle died as a result of asphyxiation.

“Alarmed by this result, the parents demanded a full-scale investigation from the police with a view to bringing any culprit connected to the gruesome killing of Michelle to justice. Rather than commence a full and proper investigation into the matter, Arome suddenly lost interest and has since been pleading that we should forget about the matter.

“When the parents insisted on pursuing the matter to a logical conclusion, Arome started pretending to be busy and was not paying attention to the matter. The parents are seriously traumatised by the sudden turn of events in relation to the death of their daughter.”

The FCT Police Public Relations Officer, Anjuguri Manzah, confirmed the incident, adding that investigation was ongoing.

“Investigation is ongoing in the case, which means that nobody can cover it up; the case has been transferred to the State Criminal Investigation and Intelligence Department,” he stated.

The Head, Complaints Response Unit, Nigeria Police Force, Abayomi Sogunle, said in order to establish a case of misconduct against the policeman, the parents would have to make a formal complaint against him.

“The parents can direct their complaints to our unit through any of our platforms and a tracking number will be sent to them, which will be used to follow up on the case,” he added.

Attempts to get the school’s side of the story were unsuccessful as one of the telephone numbers listed on its website rang out several times.

Torture is a lucrative business for the Nigerian police – Amnesty International

“A police unit created to protect the people has instead become a danger to society, torturing its victims with complete impunity while fomenting a toxic climate of fear and corruption.” – Damian Ugwu, Researcher for Amnesty International

A recent report by Amnesty International (AI) details a pattern of “ruthless human rights violations” by the Special Anti-Robbery Squad (SARS) of the Nigerian Police Force. SARS was set up as a special unit of the police force to tackle robbery and violent crimes, but instead, they have become the perpetrators of violent crimes and other corrupt practices.

In the report by AI, Nigerians gave narratives of vile experiences in the hands of men who were empowered to serve and protect them. From starvation, hangings, and shootings, to beatings and mock executions, SARS employ various means of torture to get their victims who are often innocent citizens to make a confession or pay a bribe to be released.

Damian Ugwu, Nigeria’s researcher for AI said, “Our research has uncovered a pattern of ruthless human rights violations where victims are arrested and tortured until they either make a ‘confession’ or pay officers a bribe to be released … SARS officers are getting rich through their brutality. In Nigeria, it seems that torture is a lucrative business.”

According to the report, SARS detainees are held in different locations across the country including an infamous detention centre in the capital city of Abuja known as the ‘Abattoir’, where AI found 130 detainees in overcrowded cells.

The human rights organisation has also received reports from lawyers, journalists, and human rights defenders on the nefarious activities of SARS. And also collected testimonies from victims and their family members revealing that SARS officers do not only demand bribes, they also steal and extort money.

A 25-year-old fuel attendant in the city of Onitsha, Anambra state recounted his ordeal with SARS after his employer accused him of being responsible for a burglary at their business premises.  “The policemen asked me to sign a plain sheet. When I signed it, they told me I have signed my death warrant. They left me hanging on a suspended iron rod. My body ceased to function. I lost consciousness. When I was about to die they took me down and poured water on me to revive me.”

Chidi Oluchi, another victim of SARS’ brutality said, “They told me to slap myself and, when I refused, they started beating me with the side of their machetes and heavy sticks. My mouth was bleeding and my vision became blurred.” The officers extorted the sum of N25, 500 from Chidi as payment for his freedom.

Amnesty International is not the first to report on the unit’s brutality. In 2014, Nigerian newspaper, Vanguard, gave a similar report on SARS. In an article titled REVEALED! What goes on inside SARS walls, investigations by the Network On Police Reforms In Nigeria (NOPRIN) exposed shocking atrocities perpetrated by the special unit force, and how politicians and people of influence use them as a tool for victimisation, oppression and injustice.

In the article, one Justin Nwankwo gave an account of his experience in the “torture chamber” of SARS, “Some policemen started by asking me questions ranging from personal to family and academic background.  One of them shouted, “Mr. tell us what happened or I will shoot your two legs … Ropes were tied on both hands and legs, then bent (backwards) and tied together with a rod passing in between them and then elevated to a perimeter wall.” Nwankwo said the picture of a goat being barbequed is the closest description to what he was put through. “At the turn of each question and non-compliance, a bag of sand is added on my back for increased pain,” he said.

Most of SARS’ detainees are denied access to a lawyer, doctor, or family member during detention. And the few who are bold enough to seek justice against SARS after their release never get attended to. When confronted on the rampant activities of human rights violation within the police, the authorities deny vehemently. The report also stated that repeated calls on the Nigerian justice system to prevent or punish torture have been ignored. “This lack of accountability breeds and perpetuates impunity, creating an environment where SARS officers believe they have carte blanche to carry out acts of torture,” said Ugwu.

These atrocities committed by the Nigerian police force is responsible for the attitude of disrespect and contempt collectively shared by Nigerians towards members of the country’s civil, and security forces. Nigerians rarely speak well of police officers or soldiers as they are generally regarded as corrupt, trigger-happy, power-drunk, and oppressors of civil society. “Police torture is a stain on Nigerian society that must be addressed with clear orders to law enforcement officers not to inflict torture or other ill-treatment on detainees under any circumstances,” Ugwu said.

Global Civil society condemns US administrations’ rejection of accountability​

Visa ban on ICC personnel poses limit to independent investigation in Afghanistan

Recently, the United States’ Secretary of State, Mike Pompeo, announced that visa restrictions would be applied to personnel of the International Criminal Court (ICC) directly involved in ICC investigations of US citizens for war crimes and other abuses allegedly committed in Afghanistan. The restrictions also extend to persons who “take or have taken action to request or further such an investigation.”

The Coalition for the International Criminal Court – a global network of civil society organizations in 150 countries fighting for justice for victims of genocide, war crimes, crimes against humanity, and the crime of aggression through national courts and the International Criminal Court – greatly regrets this move by the Trump Administration, and the inaccuracies presented by the Secretary of State in his statement.

Since 2009, according to the UN, fighting in Afghanistan has killed 24,841 civilians and injured 5,347, with 2016 proving the deadliest yet for children. International crimes including murder; persecution; gender crimes; intentionally directing attacks against humanitarian personnel and against protected objects; conscription of children; and sexual violence have allegedly taken place throughout this period.

The ICC has been considering the situation in Afghanistan since 2007.

In November 2017, the ICC prosecutor, Fatou Bensouda, had requested authorization from ICC judges to open an investigation into war crimes and crimes against humanity allegedly committed on the territory of Afghanistan since 1 May 2003, as well as war crimes closely linked to the situation in Afghanistan allegedly committed on the territory of other states since 1 July 2002. This announcement was broadly welcomed by civil society and other observers as a crucial if tentative step towards justice for victims.

Although the ICC judges are yet to rule on the Prosecutor’s request, the move by the Trump administration makes real on a threat of sanctions made in September 2018 by the US National Security Adviser, John Bolton, who warned that if the investigation advanced, the ICC would face “consequences,” including travel limitations and possible economic sanctions.

The position of the Trump administration raises serious concerns among civil society, states, and other stakeholders seeking accountability for international crimes wherever they occur.

“The ICC, as a court of law, must continue to do its independent work, undeterred, in accordance with its mandate and the overarching principle of the rule of law,” said William R. Pace, Convenor of the Coalition for the ICC.

In his remarks, Pompeo alleged that the “investigation into the situation in Afghanistan could illegitimately target the American personnel for prosecutions and sentencing.” The ICC is the only permanent international court with the mandate to investigate and prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. It can intervene only when the State in question is unable or unwilling to carry out genuine investigations or prosecutions.

The United States is not a member of the ICC. In 2000, under the Clinton administration, the US signed the Rome Statute, however, the treaty was never submitted to Congress for ratification. In 2002, John Bolton “unsigned” the Rome Statute. However, Afghanistan has been a member of the ICC since 2003. The ICC can thus exercise its jurisdiction over the crimes committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards. Thus, the Court is legally able to prosecute the US nationals suspected of committing crimes within the context, following the jurisdictional provision established under Article 12(a) of the Statute.

“The foundational principle of the Rome Statute is that states or other actors cannot commit genocide, war crimes, or crimes against humanity and claim immunity,” said Kirsten Meersschaert, the Coalition for the ICC’s Director of Programs. “The ICC’s role is to ensure justice for the victims of these crimes and the Coalition supports all actions that will end impunity for the gravest international crimes,” Meersschaert added.

In its response to Pompeo’s remarks, the International Criminal Court noted that it “stand[s] united against impunity. The International Criminal Court is an independent and impartial judicial institution crucial for ensuring accountability for the most serious crimes of concern to the international community… The Court is non-political and acts strictly within the legal framework of the Rome Statute, its founding treaty. One of the cornerstones of the Rome Statute system is that it recognizes the primary jurisdiction of States to investigate and prosecute atrocity crimes. The jurisdiction of the Court is complementary to domestic jurisdictions.”

Pompeo also noted that US visa restrictions may be extended to ICC personnel involved in ICC investigations of allied personnel, including Israeli citizens. The situation in Palestine, which allegedly involves crimes committed by Israeli forces, has been under preliminary examination by the ICC Prosecutor since 16 January 2015.

“We do not advocate on specific situations – but once the ICC has undertaken an investigation and prosecution, we strive to support the most effective implementation – including the strong provision of fair trial principles and resources,” affirmed Pace.

Reactions from civil society

Mr. Daniel Balson, Advocacy Director at Amnesty International USA, weighed in on the development, stating, “This announcement is the latest attack on international justice and international institutions by an administration hell-bent on rolling back human rights protections.” “While victims’ rights should be the very top priority of the United States government, throwing roadblocks in front of the ICC’s investigation undermines justice not only for abuses committed in Afghanistan, but also for the millions of victims and survivors throughout the world who have experienced the most serious crimes under international law,” Balson continued.

“The US decision to put visa bans on ICC staff is an outrageous effort to bully the court and deter scrutiny of US conduct,” said Richard Dicker, International Justice Director at Human Rights Watch. “Trump administration threats against the ICC mask the real problem, the failure of US authorities to address past torture and other abuses by the CIA and US armed forces…This is precisely the ICC’s role, to deliver justice for victims when all other doors are closed,” Dicker continued.

In a press release by No Peace Without Justice, an organization which campaigns to protect human rights, democracy, the rule of law and international justice, the organization declared, “Secretary Pompeo should be held to account for today’s blatant attempt to pervert the course of justice by threatening, intimidating and retaliating against those who are simply carrying out their duties to ensure justice for the crimes committed in Afghanistan, irrespective of who the perpetrators may be.”

Jamil Dakwar, Director of the Human Rights Program at The American Civil Liberties Union, opined, “This is an unprecedented attempt to skirt international accountability for well-documented war crimes that haunt our clients to this day. It reeks of the very totalitarian practices that are characteristic of the worst human rights abusers, and is a blatant effort to intimidate and retaliate against judges, prosecutors, and advocates seeking justice for victims of serious human rights abuses. We won’t rest until we get to the bottom of this, and are considering options on behalf of those potentially impacted by this misguided and dangerous policy.”

James Goldston, Executive Director of the Open Society Justice Initiative

Without Court Order, EFCC Lacks Power To Instruct Bank To Freeze Customer’s Account: Guaranty Trust Bank v. Mr. Akinsiku Adedamola & 2Ors.

Background

This appeal is against the judgment of the Federal High Court in Lagos delivered by Abang J, on the 13th day of November 2015 in Suit No. FHC/L/CS/862/2015, wherein the learned trial judge gave judgment in favour of the 1st respondent against the appellant, the 2nd and 3rd respondents.

The 1st respondent in this appeal commenced an action against the appellant, 2nd and 3rd respondents by way of an application for the enforcement of his fundamental rights. The reliefs sought by the applicant at the court below read as follows:

  1. An order of court restraining the 1st respondent and 2nd respondent from intimidating, threatening and arresting the applicant under the guise of investigating an offence committed by one Akinshiku Roy.
  2. A declaration that the constant barrage of telephone calls from the 3rd respondent threatening to arrest the applicant is unlawful and breach the applicant’s fundamental rights as guaranteed and protected by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
  3. An order of court directing the respondent to release the restriction placed on the applicant’s bank account numbers 0014455802 and 0014455819, account name: Akinshiku Ademola, with Guaranty Trust Bank Plc.
  4. N100,000,000 (one hundred million naira) as compensation for the illegal and unlawful freezing of account of the applicant.
  5. An order of perpetual injunction restraining the respondents, whether by themselves, their agents, privies/or servants from harassing, arresting and threatening the applicant in any manner whatsoever in connection with a crime allegedly committed by one Akinshiku Roy.

Parties filed all relevant processes at the court below and upon hearing the application by the 1st respondent in this appeal, the lower court found in favour of the applicant and awarded damages for the breach of the applicant’s fundamental rights in the sum of N4,000,000 (four million naira) for freezing the applicant’s bank accounts and N20,000 (twenty thousand naira) cost.

The judgment did not go down well with the appellant, who now filed several notices of appeal but eventually withdrew some and settled for an amended notice of appeal filed on the 22nd day of March 2016, containing nine grounds of appeal.

Resolution

The issue that is central to the determination of this appeal is narrow; it is just whether the appellant, as a banker, committed a breach of the fundamental right of the 1st respondent by freezing his bank account.

Before I proceed to deal with the narrow issue central to the determination of this appeal, I need to clear a point on the challenge to the jurisdiction of the lower court to hear and determine the 1st respondent’s application for the enforcement of fundamental right. The issue of jurisdiction of our courts to hear and determine applications for the enforcement of fundamental rights came under focus in FRANCIS IGWE vs. GODOY EZEANOCHIE & ORS (2009) LPELR-11885 (CA) Pg. 26-29, Paras. G-A, where this court pronounced on the application of the Fundamental Rights (Enforcement Procedure) Rules and the jurisdiction of the courts. This court held that:

“Whenever the court is confronted with an application brought under the Fundamental Rights (Enforcement Procedure) Rules, it is imperative that the court should critically examine the reliefs sought by the applicant, the grounds for seeking the reliefs and the facts contained in the statement accompanying the application and relied on for the reliefs sought.

“Where the facts relied on disclose infringement of the fundamental right of the applicant as the main basis of the claim, then it is a clear case for the enforcement of such rights through the Fundamental Rights (Enforcement) Rules…

“However, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly invoked or exercised as the court will be incompetent to do so…”

See: also ADEKUNLE vs. A.G., OGUN STATE (2014) LPELR-22569 (CA) Pg.42-43, Paras. E-G; JIMOH vs. JIMOH (2018) LPELR-43793 (CA) Pg. 21-24. Paras. C-F and PRINCESS vs. GOVERNOR OF OGUN STATE & ORS (2018) LPELR-44986 (CA) Pg. 49-57, Paras. D-D, where this court reiterated the settled position of the law that: “…for an application for the enforcement of any of the fundamental rights entrenched in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to be grounded, it must be shown by the applicant that the breach of the fundamental right is the main claim…”

The reliefs sought by the applicant/1st respondent in this appeal are set out at pages 3-4 of the records of appeal. They are again reproduced as follows:

  1. An order of court restraining the 1st respondent and 2nd respondent from intimidating, threatening and arresting the applicant under the guise of investigating an offence committed by one Akinshiku Roy.
  2. A declaration that the constant barrage of telephone calls from the 3rd respondent threatening to arrest the applicant is unlawful and breach the applicant’s fundamental rights as guaranteed and protected by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
  3. An order of court directing the respondent to release the restriction placed on the applicant’s bank account numbers 0014455802 and 0014455819, account name: Akinshiku Ademola, with Guaranty Trust Bank Plc.
  4. N100,000,000 (one hundred million naira) as compensation for the illegal and unlawful freezing of account of the applicant.
  5. An order of perpetual injunction restraining the respondents, whether by themselves, their agents, privies/or servents from harassing, arresting and threatening the applicant in any manner whatsoever in connection with a crime allegedly committed by one Akinshiku Roy.

The affidavit in support and the statement are found at pages 5-12 of the records. In summary, the applicant said the sum of N300,000 was paid into his account by Akinshiku Roy; the Economic and Financial Crimes Commission trailed some lodgement to the account and therefore placed restrictions on the account. The account of the 1st respondent, having been restricted for the purpose of investigation, the 1st respondent then applied for the enforcement of his fundamental rights to secure the release of his account and restrain the Economic and Financial Crimes Commission from arresting and threatening him. The applicant asked for damages for the restraint.

I am very sure this is not a matter bordering on banker/customer relationship; the submission by the appellant that the lower court lacks jurisdiction to hear and determine that application is a gross misconception of the law; it is therefore discountenanced. I hold that the lower court acted rightly in the exercise of its jurisdiction to hear and determine the application.

Let me go back to the narrow issue to resolve in this appeal. The compressed facts constituting the basis for placing restriction on the account of the 1st respondent by the applicant show that following an instruction from the Economic and Financial Crimes Commission, the account of the 1st respondent was placed under restrictions. In fact, the 1st respondent said so expressly in his affidavit and the statement in support of his application for enforcement of fundamental rights. At paragraph 20 of the affidavit, the applicant/1st respondent said as follows: “That the order freezing my bank account was done as a result of a crime allegedly committed by another person, which I am not privy to.”

Again at page 46 of the record of appeal, the applicant said he was informed by his bank that his account was placed under restriction by the Economic and Financial Crimes Commission –  paragraphs 7-14 of the affidavit in support. The 1st respondent stated that the appellant bank acted on instructions by the Economic and Financial Crimes Commission to freeze his account because there were allegations of laundering proceeds of crimes surrounding the operations of his account.

Where there is an allegation of commission of a crime against a customer of a bank in relation to the funds in his account, the commission is empowered by law to set in motion the process of investigating any such funds perceived to be derived from proceeds of crime. In conducting the investigation, the commission is required to observe due process and satisfy the requirements of the law. The commission or its officers must, first, go to court and obtain an ex parte order before freezing the account. Any failure to follow due process will render the action taken by the commission a violation of the rights of the customer.

The lower court found that the action of the appellant, 2nd and 3rd respondents violated the fundamental rights of the 1st respondent. In so finding, the learned trial judge, at page 51 of the records of appeal, said as follows:

“…in this case, there is no evidence that the applicant committed any criminal offence, or was even reasonably suspected to have committed any offence. The EFCC has not come up with anything suggestive that Akinshiku Roy mentioned the applicant as having conspired to commit the alleged offence he was accused of.

“Even if the applicant was alleged to have committed a criminal offence, the EFCC cannot, on its own, direct the bank to place a restriction on his accounts in the bank without an order of court. The law allows the EFCC to come to court even with an ex parte application to obtain an order freezing the account of any suspect that has lodgements suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC to deal with the applicant this way.

“Again, Guaranty Trust Bank has no obligation to act on EFCC’s instructions or directives without an order of court…”

The above is the reasoning of the learned trial judge. I decided to check the provisions of the law relating to the powers of the Economic and Financial Crimes Commission to issue instructions to banks to freeze bank accounts of customers; I read the provisions of Section 34(1) of the Economic and Financial Crimes Commission (Establishment) Act 2004. The section provides as follows:

Notwithstanding anything contained in any other enactment or law, the chairman of the commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act or any enactments specified under Section 6(2)(a)-(f) of this Act, apply to the court ex parte for power to issue or instruct a bank examiner or such other appropriate regulatory authority to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is believed by him to be or the head office of the bank or other financial institution to freeze the account. (Underlining mine).

The above provisions are in accord with the decision of the lower court. Before freezing customers accounts or placing any form of restrain on any bank account, the bank must be satisfied that there is an order of court. By the provisions of Section 34(1) of the Economic and Financial Crimes Commission Act 2004, the Economic and Financial Crimes Commission has no power to give direct instructions to banks to freeze the account of a customer without an order of court. So doing constitutes a flagrant disregard and violation of the rights of a customer.

I must add that the judiciary has the onerous duty of preserving and protecting the rule of law. The principles of the rule of law are that both the governor and the governed are subject to the rule of law; no one is above the law. Whenever there is a brazen violation of the rights of a citizen, the courts, in the discharge of their responsibility to the society, must rise to the occasion, speak, frown upon and condemn arrogant display of powers by an arm of government. It is in the interest of both government and citizens that laws are respected, as respect for the rule of law promotes order, peace and decency in all societies, and we are not an exception.

Our financial institutions must not be complacent, reticent or toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.

I resolve this issue in favour of the 1st respondent. Having said this much, I think I must go back to the appeal. The appellant’s appeal is obviously bereft of a scintilla of merit and therefore deserves to be dismissed. I affirm the judgment of the lower court delivered by Abang J, on the 13th day of November 2015 in Suit No. FHC/L/CS/862/2015.

Cost of N500,000 is awarded to the 1st respondent against the appellant. Court: Court of Appeal, Lagos Division

Appeal Number: CA/L/1285/15

Judgement date: March 1, 2019

Judgment delivered by: Justice Tijani Abubabakar

Supporter by: Justice Abimbola O. Obaseki-Adejumo and Justice Jamilu Yammama Tukur

Appellant – Guaranty Trust Bank

1st respondent – Mr Akinsiku Adedamola

2nd respondent – Economic and Financial Crimes Commission

3rd respondent – Baba Muhammed Azari

CALL FOR INTEREST_SENIOR SPECIAL ADVISER (SSS)

With financial support from the Bill & Melinda Gates Foundation (BMGF), the West African Health Organisation (WAHO) is seeking to recruit a Senior Special Adviser (SSA), for a fixed-term contract of 3 years. The position of the SSA is to mitigate the impact of the abolition of the statutory position of Deputy Director General on WAHO’s operations.

The overarching objective of the SSA is to provide advisory and managerial support to the Director General (DG). The SSA should be a dynamic and experienced leader in order to ensure effective operationalization of WAHO’s institutional strategies. In addition, he/she shall assume the role of key contact point for the Director General’s internal and external relations. The duty of the SSA requires high level of public relations due to the political sensitivity of the Office of the DG.

Duration

The position is a 3-year fixed-term post funded by Bill & Melinda Gates Foundation (BMGF).

Profile

Specifically, under the direction of the Director General, the SSA will be tasked with the following delegated duties:

  • Assist the Director General in preparing long-term strategies for attainment of WAHO’s goals;
  • Ensure effective administrative strategies are implemented in a timely manner within ECOWAS regulations;
  • Develop and maintain knowledge of all partners, both current and potential, and oversee strategic communications of various organizational projects;
  • Support the DG to enforce compliance with institutional directives;
  • Collaborate with national and international partners to achieve the objectives of the community, ECOWAS Commission, WAHO, and the DG regarding the health of the population;
  • Collaborate with WAHO directors to adequately represent WAHO’s interests within the organization, as well as at the national and international levels;
  • Deputize for the DG and delegate within a delineated scope in the absence of the DG;
  • Oversee all communication for WAHO in coordination with the directives of the DG;
  • Monitor all staff activities according to existing policies, evaluate staff programs and support performance management in order to maintain competency in all organizational policies;
  • Develop and maintain knowledge of the EcoLink system within WAHO, and ensure timely response by staff to sensitive requests;
  • Provide guidance and coaching to other members of staff within the directorate when required;
  • Perform any other relevant tasks as may be assigned by the Director General.

Content of the EOI

The West African Health Organisation (WAHO) invites qualified candidates to express their interest in providing the aforementioned services.

Interested candidates must provide information indicating that they are qualified to perform the services described above. Their expression of interest will include:

  • a letter of expression of interest stating the post advertised;
  • a detailed, dated and signed Curriculum Vitae, highlighting qualifications and experience related to the advertised post, including references.

Selection Method

The SSA will be selected based on pertinent ECOWAS rules and in accordance with the agreement between WAHO and BMGF, who is providing financial support for the procurement.

Information, Date and Venue for Submission of Applications

Interested candidates may access the TORs on WAHO website at: w3.wahooas.org   

They may also get additional information on reference materials from the address stated below and on the following working days and office hours: Monday to Friday between 8 00 and 16 00 Burkina Faso time.

The expression of interest with the reference “Recruitment of a Senior Special Adviser (SSA)” in subject shall be submitted to WAHO via post or email at the address below no later than 11 00 hours (GMT) on Friday 29 March 2019.

Address:

The Director General

West African Health Organisation
01 BP 153 Bobo-Dioulasso 01

Avenue Ouezzin COULIBALY
Telephone: (226) 20 97 57 75/ 20 97 00 97

Email address: offres@wahooas.org – cc : wahooas@wahooas.org

150 children stranded as FCTA demolishes Kubwa Church, orphanage, school

The Federal Capital Territory Administration has demolished the Divine Words of Jesus Christ Church, including a school and orphanage in Kubwa, a satellite town in Abuja, despite a pending suit before a Federal Capital Territory High Court.

The demolition of the orphanage by the Department of Development Control officials has, however, rendered 150 orphans homeless.

Five buildings comprising a church, orphanage, school and staff quarters were pulled down by the FCT officials on Tuesday.

Our correspondent gathered that the land on which the buildings were constructed had been a subject of litigation between the orphanage proprietress who is also the General Overseer of the Words of Jesus Christ Church, Bishop Victoria Ezemoka and her brother-in-law, Goddiful Ezegwo.

Ezemoka, a widow, noted on Wednesday that the case over the ownership of the land was yet to be determined by the court, adding that the case was instituted in 2013.

The proprietress and her workers looked shocked when our correspondent visited the scene.

She said, “When I met the Development Control department over the issue, they simply asked me to reconcile with my brother-in-law, but Ezegwo gave me three conditions which I couldn’t meet.”

Following the demolition of the orphanage, Ezegwo said she had relocated the children to her two-bedroom apartment, adding that she was making moves to rent a bigger place for them.

The lawyer to Ezegwo, Titus Agundu, flayed the demolition of the buildings which he described as illegal, stressing that he would seek damages against the FCTA over the incident.

“I was in court when I received a call that the buildings were being demolished. This case is still before the court and had not been determined. We will take action against the FCDA and seek damages for the demolition of the five buildings; This is illegal and unacceptable,” he stated.

The lawyer to the FCT Administration, Murtala Dahiru, expressed surprise over the demolition, noting that there was no court order to that effect.

“I’m surprised to hear about the demolition, I am not aware of it because the case is still in court and had not been decided,’ he said.

When contacted, the Director, Development Control dept., Muktar Galadima, said he had documents to justify the demolition.

Source: Punchng.com

Discretionary Power Under The Constitution And The Validity Or Otherwise Of The Proviso To Section 3(D) Of The Code Of Conduct Bureau And Tribunal Act: The legal point of view

The Constitution is the ground norm from which every other statute or law derives its validity and where such law is inconsistent with the Provisions of the Constitution, it shall be void to the extent of its inconsistency. However, it is worthy of note that the Constitution does not provide all laws which will help it achieve its purpose hence, it gives room and permits constituted authorities to fill in the gaps where necessary. This is because the Constitution only provides the frame work within which institutions and other subsidiary law must operate. Any attempt to go outside the frame work will therefore be void as same would be inconsistent with the Constitution.

The Code of Conduct Bureau is a creation of the Constitution under section 153 thereof and the body is conferred with the powers under section 3 paragraphs (a) to (g). These powers include discretionary powers as contained in paragraphs 3 (d) and (e) where the Constitution stipulates that the Bureau shall have power to “(d) ensure compliance with and, where appropriate, enforce the provisions of the Code of Conduct of any law relating thereto;” and “(e) receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal;”.

From the provisions above, it is clear that the Constitution specifically empowered the bureau to perform its functions under paragraphs 3 (d) and (e) of section 153 thereof where “where appropriate” because the Constitution does not go further to provide the circumstances under which it would be appropriate to carry out the functions in the said paragraphs rather, it leaves the bureau with the discretion to determine when it considers it appropriate to do so.

It is rather unfortunate that public officers have become partisan to allow their personal interest conflict with their constitutional and administrative responsibilities. The prevalence of this trend within the polity calls for judicial review of discretionary powers exercised by public officers.

Furthermore, under the principles of administrative law, statutes usually confer discretionary powers to established institutions or constituted authorities where it makes use of words or phrase such as- “where it is necessary”; “beneficial”; “where applicable”; “equitable”; “where appropriate”; “sufficient”; “if it is satisfied”; etc with a view to examining the conditions or circumstances which make such words or phrases operative within the context of the section of law under reference and give meaning to the entire provision which accommodates such discretionary power.

Moreover, where conditions are not provided to examine the circumstances under which the likes of the aforesaid words or phrases can fit into the provisions of the law then, at what point can we say or conclude that the happening of an event is “appropriate” or “satisfactory” or “applicable” or “necessary” as the case may be. To this extent, it is only safe to suggest that the Constitution cannot be said to have covered the field where it leaves such discretion to be determined by the CCB, being the appropriate authority in the circumstance.

However, the Court of Appeal reasoned differently from the principles argued above when it upheld the decision of the Tribunal in the case of FRN v Olubukola Saraki in Charge No. CCT/ABJ/01/2015 and held that paragraph (3) (e) of Part 1 of the Third Schedule to the 1999 Constitution is the guiding law on the subject matter which overrules the proviso of section 3 d of the said Act.

Be it as it may, this happens to be the current position of the law in respect to the proviso to paragraph 3 (d) of the CCBT Act. Although, the Supreme Court did not have the opportunity to consider, interpret and rule on the validity or otherwise of the said proviso to section 3 (d) of the CCBT Act as the Defendant/Appellant did not appeal the decision, some legal practitioners and activists are not convinced that the Court of Appeal’s position on the subject matter is apposite. With greatest respect to their lordships, in my considered view, the reasoning of the court to arrive at this position is neither legally nor jurisprudentially founded.

Nevertheless, it is apposite to mention that laws are created out of necessity to cure certain vices within the society or to improve on existing structure(s) within the polity. This explains the underlining purpose of all legislations. Therefore, it will be meaningless if the provision of a law fails substantially to address the purpose for which it is created. Thus, to strengthen the potency of our laws, the best interpretation to be given to the provision of any legislation must be such that takes cognizance of the societal decadence and in this context, the administrative decay it seeks to cure or tame. In the circumstance, the question to ask is- what does the provision for asset declaration by public officers seeks to cure?

It should be pointed out that the major essence of establishing the CCBT Act and particularly, the provision of declaration of assets generally, is to assess transparency and management of public funds by public officers prior their appointments into public offices and after their successive tenure of office. The provision for asset declaration by public officers is enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Code of Conduct Bureau and Tribunal Act for a specific purpose. It suffices to state that where the targeted purpose will be whittled down or defeated by any other act or law or any proviso thereto then, such law or proviso shall be construed against the intendment of the purpose for which the provision is made. Similarly, where a proviso renders the purpose of the law inoperative so much as to defeat the essence of a particular legislation, and in this case, the transparency and proper management of public funds by public officers then, it renders the entire law for that purpose redundant and meaningless.

In order to strengthen the interpretation of our laws, it is important to appreciate the jurisprudence behind the Constitution and the enactment of the CCBT Act particularly, the provision for asset declaration vis-à-vis the prevailing trend of mismanagement of public fund perpetrated with impunity by public officers.

It is not unusual for people to hide under a particular section of a subsidiary legislation or its proviso to pitch a tent of defence with a view to escaping prosecution under the principal legislation. The contentious proviso is made pursuant to the discretionary power of the CCB conferred under paragraph 3 (d) and (e) of section 153 of the constitution.

Discretion has been defined as an independent judgment; freedom and authority to decide how to act; the power given to public officials to act independently in fulfilling their duties. Generally speaking, discretionary power conferred on courts, quasi-judicial officers, tribunals or other constituted authorities is not created to follow any precedent.

In the case of Folorunsho v. Folorunsho (1996) 5 NWLR (PT. 450) 612 at 622 paragraph C-H, the Court said:

“As I said earlier, exercise of discretion by a court of law cannot be bound by a previous decision for that would in effect put an end to the discretion. No discretion can be a precedent. In Jenkins v. Bushby (1891) 1 CH 484, KAY L. J. summed up the principle of law as follows:

Of course in a question of discretion authorities are not of much value. No two cases are exactly alike and even if they were, the court cannot be bound by a previous decision to exercise its way because that would be putting an end to the discretion”.

It is important to state here that discretionary powers are generally not expressed or mandated to be in printed materials to be referred to as an Act or Code or Regulation and what have you. Although there are instances where the authority exercising the power provides certain yardstick or condition(s) guiding its discretion as part of an act (the contentious proviso in the CCBT Act for instance), such authority or body is not thereby restricted to go beyond the scope provided in such an Act to exercise its discretionary powers.

Note that the exercise of discretionary power is wider in scope and same cannot be exhaustively captured and/or written in any form as an embodiment of law; the fact that discretionary power is imputed in any legislation suffices. Hence, the CCB may exercise its discretionary power without following previous yardstick, condition or standard, written or unwritten in any form because each case has its peculiar consideration to measure the discretion to be exercised. Therefore, it suffices for the CCB to give reasons why it considered it appropriate to enforce the provisions of the Code of Conduct. However, where the reason(s) so adduced is not satisfactory, an aggrieved party can challenge same through a competent court to determine whether the CCB used its discretionary power judiciously.

In view of foregoing, I consider the proviso to section 3 (d) of the CCBT Act as one of the CCB’s several other yardsticks or criteria to exercise its discretion amongst other considerations because an attempt to limit the power of the body to the proviso of the CCBT Act will permanently take away such power from the purview of being discretionary.

Consequently, if the proviso to section 3 (d) of the CCBT Act is thus given a judicial backing to limit of the CCB’s discretion then, the discretion would thereby be eroded and proviso would become the only circumstance under which the CCB cannot refer matters to the Code of Conduct Tribunal. By so doing, public office holders will always fail to genuinely declare their asset under the pretence that they forgot to do so. I must state that to hold such as a precedent is disastrous to the future of this country. I reasonably believe that this is not the contemplation of the Constitution when it confers the discretion.

A.E. Atolagbe Esq., Barrister and Solicitor