A GARNISHEE BANK HAS NO BUSINESS DEFENDING A JUDGMENT DEBTOR

 FIDELTY BANK v. ONWUKA (2017) LPELR-42839(CA)
PRACTICE AREA:  PRACTICE AND PROCEDURE

INTRODUCTION

The garnishee proceeding is a judicial process available to a judgment creditor to enforce a monetary judgment. Succinctly put, it enables the judgment debtor to recover the judgment sum by attaching monies belonging to the judgment debtor in the coffer(s) of a third party (the garnishee).

More often than not, the garnishee is a bank and it is sometimes the case that the bank (garnishee) will want to hide under the fiduciary relationship between a customer and a bank, to say that they cannot disclose the sum standing to the credit of the judgment creditor. Some banks see it as their duty to ‘protect’ their customers and as such, they go to lengths to defend their customers to ensure that the money is not attached. These issues, alongside other matters relating to the garnishee proceedings were discussed extensively in the appeal at hand.

In delivering the leading government, Ogunwumiju, J.C.A said: “There is no doubt that a garnishee proceeding is a means of collecting a monetary judgment against a judgment debtor by ordering a third party (the garnishee) to pay money, otherwise owed to the judgment debtor, directly to the judgment creditor.

In other words, a Garnishee  proceeding is a process of enforcing money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order a third party in whose hands the property of the judgment debtor is, to pay directly to the judgment creditor the debt due or accruing from him to the judgment debtor or as much as it as may be sufficient to satisfy the judgment and the costs of the proceedings.”

She proceeded to explain the stages in the garnishee proceeding. In her words, “ A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the Court.

The second stage is where on the return date the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may, subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the Garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other as shown by any of the parties, particularly the garnishee. This is because the garnishee may dispute his liability to pay the debt. He will appear in Court on the return date and dispute his liability by denying indebtedness to the judgment debtor.”

On the fiduciary duty owed by a bank to its customer, she clarified that “the duty of confidentiality owed a customer is certainly subject to an order of Court. It is firmly settled that an order of Court must be obeyed until such a time that the order is set aside.

In other words, one of the exceptions to the duty of confidentiality owed a customer by the bank is where there is a Court order compelling the disclosure of the account details or any other information of a customer. Such Court order obviates the liability that a bank would ordinarily incur in the event of a breach of the duty of confidentiality.”

She then emphasized that “It has been reiterated by the Courts that it is not the duty or business of a garnishee to play the role of a defender or advocate for a judgment debtor by attempting to protect the money of the judgment debtor in its custody.”

FACTS IN BRIEF

The facts leading to this instant appeal are that the Respondent herein, having obtained a judgment of N23,936,100.25 at the Contracts Evaluation Debts and Property Recovery Tribunal of Anambra State of Nigeria against the Anambra State Government, filed a motion ex parte (as judgment creditor) and subsequently obtained a Garnishee Order Nisi at the High Court directing the Appellant (as 3rd garnishee, there being three garnishees in all) to show cause why the Order Nisi should not be made absolute upon it for payment to the Respondent the amount of judgment debt due to the Respondent or so much as would satisfy the judgment debt and the costs entered on the summons. The Appellant filed an affidavit showing cause but did not furnish the Court with the amount belonging to the judgment debtor in its custody. The Appellant cited lack of specific account details as the reason for the non-disclosure.

The learned trial judge consequently made an order on 15/7/13 directing the Appellant to furnish the Court with the amount in all the accounts maintained by the Anambra State Government with the Appellant within seven (7) days.

Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal leading to the appeal at hand.

ISSUE(S) FOR DETERMINATION

The sole issue distilled by the Court for the just determination of this Appeal is:

Whether the order of the trial Court directing the Appellant to furnish the Court with the amount in all the accounts operated by the Anambra State Government with the Appellant was perverse with regard to garnishee proceedings.

RATIO DECIDENDI

  • BANKING LAW – DUTY OF A BANK: General rule as to the duty of confidentiality a bank owes its customers and its exceptions

“It is beyond controversy that one of the principal duties of a banker to its customer is to maintain a complete secrecy/confidentiality of the information about a customer’s account from the day the account is closed and is no longer operated. It is one of the implied terms of contract between the customer and the banker which is not restricted to the account alone but also to any other information which comes to the knowledge of the banker about the customer in the course of their contractual relationship. However, the duty of the banker to maintain secrecy/confidentiality of the status of the account and any other information relating thereto is not absolute. It is a qualified duty. In other words, it is subject to a number of exceptions which were established by the English case of TOURNIER V. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 AT 472 as follows: (a) “Where disclosure is under compulsion of law. (b) Where there is a duty to the public to disclose. (c) Where the interests of the bank requires disclosure. (d) Where the disclosure is made by express or implied consent of the customer” These exceptions which are referred to as Tournier’s principles still holds good today as they have been confirmed in several other cases. See TURNER V. ROYAL BANK OF SCOTLAND PLC (1999) LLOYD’S LAW REP. BANKING 231 AT 234, CHRISTOFI V. BARCLAYS BANK PLC (2000) 1 WLR 937 AT 946, OCEANIC BANK PLC VS. OLADAPO (2012) LPELR- 19670. We are concerned here with the first exception. The banker would be justified and is in fact under a duty to disclose information relating to a customer’s account where the law or Statute requires the banker to so do. Disclosure under compulsion of the law is not limited to a situation where a Statute requires the bank to disclose information about a customer’s account, it extends to an order of Court to disclose the state of a customer’s account, the banker is bound to disclose the state of the customer’s accounts. In BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER. 563, it was contended that a banker’s duty of secrecy/confidentiality included the duty to resist any order made by a lawful authority to look into the affairs of the customer and the bank was under a duty to inform the customer about the order. The English Court rejected that contention on the ground that such duty cannot be implied into the banker and customer relationship. See also ROBERTSON V. CANADIAN IMPERIAL BANK OF COMMERCE (1995) 1 ALL ER 824.

The argument of the appellant’s counsel that a disclosure of all the account details of the judgment debtor would be a breach of its duty of secrecy/confidentiality must be rejected. A banker has no option than to disclose particulars of its customer’s accounts when it is compelled to do so by the Court. Reliance of the appellant on lack of specific account details must also be rejected because the nature, number and the amount of money standing to the credit of the judgment debtor in its account with the appellant are matters within the knowledge of the appellant which must be disclosed on the order of Court to enable the Court to determine whether or not the judgment debtor has money in the custody of the garnishee and whether such money is sufficient to satisfy the judgment debt. That was the position of this Court in OCEANIC BANK PLC VS. OLADAPO (SUPRA) and it remains unchanged.”Per BOLAJI-YUSUFF, J.C.A. (Pp. 48-51, Paras. E-E)

  • BANKING LAW – BANKER-CUSTOMER RELATIONSHIP: Nature of a banker/customer relationship

“A bank is a debtor to its customer. In The Bankers’ Liability, Revised Edition, 2014 by Nkiru-Nzegwu Danjuma appears the following passage at pages 108 to 109: “As regards money deposited by the customer in an account with the banker, the nature of the banker and customer relationship is that of contract of debtor and creditor. The position becomes clearer when the customer asks for his money. As a result of an implied undertaking by the banker to repay the customer all or part of such deposit, the banker is a debtor for an amount deposited. If a valid repayment demand of the customer is not met by the banker, the customer may bring an action against it for breach of contract. The action will be against the bank and not against the bank manager. In Osawaye vs. National Bank of Nigeria Ltd. (1974) NCCR 474 the debtor and creditor relationship was restated thus: “The relationship between a banker and customer is one of debtor and creditor with the additional feature that the banker is only liable to repay the customer on payment being demanded. There is no obligation on the part of the banker or debtor to seek out his creditor, the customer and pay him: obligation is only to pay the customer or some person nominated by the customer, when the customer makes a demand or gives a direction for payment.” It is the receipt of money either from or on account of its customer that constitutes a banker into debtor of the customer. Thus, when a banker credits the account of a customer with a certain sum of money, the banker becomes a debtor to the customer to the extent of the credit. It is to be noted that the ordinary customer rank as an unsecured creditor in the liquidation of the bank. The concept of debtor and creditor in the banker and customer relationship are not static. The banker may in certain cases become the creditor, while the customer assumes the position of a debtor. For instance, where a banker grants overdrafts to its customer and debits the customer’s account with sum or value of the overdraft, the customer becomes a debtor to the banker to an amount equal to the credit. Accordingly, after the reconciliation of the banker and customer’s account, which party is the creditor, can sue if demand for payment is not complied with. The Supreme Court in Yesufu vs. African Continental Bank (supra) affirmed this legal position.” Per TUR, J.C.A. (Pp. 39-41, Paras. E-F)

  • JUDGMENT AND ORDER – ORDER OF GARNISHEE: Implication of a garnishee order nisi

“With the greatest respect, it is clear that there is an abysmal lack of understanding of the garnishee proceedings by learned Appellant’s counsel. The order of Court was not an order absolute as counsel for the Appellant contends. While the other two garnishees (Access Bank Plc. and Diamond Bank Plc.) in obedience to the Court order, filed affidavits disclosing the accounts of the judgment debtor with them to show cause why they should not satisfy the judgment debt, the Appellant blatantly refused and resorted to legal games after the Order Nisi was served on it. In fact, the Appellant submitted at paragraph 5.11 of the Appellant’s Brief that Anambra State Government through its various Ministries and Departments keep several accounts with the banks and without specific account particulars, certain accounts ‘may be wrongly attached with the concomitant dangerous effect’. In one breath, the Appellant claims it could not conduct a search because there was not enough particulars, on another, the Appellant admits that the judgment debtor operates several accounts with the Appellant but the ‘dangerous effect’ of complying with the order of Court prevents the Appellant from so doing. That is absolutely unacceptable. It has been reiterated by the Courts that it is not the duty or business of a garnishee to play the role of a defender or advocate for a judgment debtor by attempting to protect the money of the judgment debtor in its custody. By refusing to disclose the accounts of the judgment debtor, it is clear to me that the Appellant is doing its best to disobey an order of Court. In sum, the order of Court appealed against is not an order absolute, it is an order mandating the Appellant to furnish the Court with the accounts operated by the judgment debtor with the Appellant. It does not automatically transmit to an order of Court attaching the funds for execution as it is under an order absolute. What it is, is an attempt by the Court to ascertain whether such funds at the disposal of the Appellant belonging to the judgment debtor can satisfy the judgment debt which is the essence of the order nisi for the Appellant to show cause.”Per OGUNWUMIJU, J.C.A. (Pp. 22-24, Paras. A-A)

  • PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Nature of garnishee proceedings

“It is beyond doubt that one of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings. Garnishee proceedings is defined in Black’s Law Dictionary as follows: A judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party. Part V- Attachment of debts by Garnishee Order is the appropriate part of the Sheriffs and Civil Process Act which regulates this process. I will set out the relevant provisions necessary to determine the issue under consideration. S. 83 provides as follows: 83(1).

The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order the debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much there of as may be sufficient to satisfy the judgment or order together with costs aforesaid. 83(2). At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor. S. 87 also provides as follows: If the garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee. A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date to show cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed the judgment debtor. This is usually done ex parte and limited to the judgment creditor and the Court. The second stage is where on the return date the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may, subject to certain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor, judgment creditor and the Garnishee.

This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi be discharged for one cause or the other as shown by any of the parties, particularly the garnishee. This is because the garnishee may dispute his liability to pay the debt. He will appear in Court on the return date and dispute his liability by denying indebtedness to the judgment debtor. There is no doubt that a garnishee proceeding is a means of collecting a monetary judgment against a judgment debtor by ordering a third party (the garnishee) to pay money, otherwise owed to the judgment debtor, directly to the judgment creditor. In UBN Plc. V. Boney Marcus Industries Ltd. & Ors. (2005) All FWLR (Pt.278) 1037 at 1046, garnishee proceeding was defined as a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is in the hands of a third party whereby, the Court order is required to direct the third party to pay directly to the judgment creditor. By the Judgment Enforcement Rules, where any bank, in custody of the monies belonging to a customer who is a judgment debtor, is within the jurisdiction of the Court that has decided a debt as due to the judgment creditor against a judgment debtor (whom the bank is in custody of his monies), such monies or funds can be utilized in settlement of the judgment debt and enforced by such Court as immediately payable to the judgment debtor/customer. In other words, a Garnishee proceeding is a process of enforcing money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order a third party in whose hands the property of the judgment debtor is, to pay directly to the judgment creditor the debt due or accruing from him to the judgment debtor or as much as it as may be sufficient to satisfy the judgment and the costs of the proceedings. See Citizens Int’l Bank v. SCOA (Nig) Ltd (2006) 18 NWLR Pt.1011 Pg. 334. Thus, a garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is sui generis and is unlike other proceedings for enforcement of judgment.”Per OGUNWUMIJU, J.C.A. (Pp. 9-14, Paras. F-D)

– PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings

“Section 3(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows: “3(1) There shall be 36 States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara. (2) Each State of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule. (3) The headquarters of the Government of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the State named in the first column thereof.” Anambra State has a “Government”. A “Government” is defined in Section 318(1) of the Constitution to include “…the Government of the Federation or of any State, or of a local government council or any person who exercise power or authority on its behalf.” Authority is defined to include “Government.” A “function” includes “power and duty”. A “person” includes “anybody of persons corporate or unincorporate.” See Section 18(1) of the Interpretation Act Cap. 123, Laws of the Federation of Nigeria, 2004. Every State Government exercises powers and functions through persons, authorities or offices, etc. Moneys are held by such persons, authorities or bodies, for instance in banks, or by public officers for and on behalf of the Government. See Sections 316-317 of the Constitution. Section 83(1) of the Sheriffs and Civil Process Act Cap. S.6 does not lay any burden on a judgment creditor to establish how many accounts a judgment debtor has with a third party or as in this case, the appellant. All that the judgment creditor is to establish is that the appellant is a debtor to the Anambra State Government (the judgment debtor). Section 124(1)-(3) of the Evidence Act, 2011 provides as follows: “124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:- (a) Common knowledge in the locality in which the proceeding is being held, or generally; or (b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account. (3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.” It is common knowledge that modernized banks conduct business through the use of computers. Section 258(1) of the Evidence Act, 2011 defines what is a “bank,” a “banker”; “banker’s books,” “banking business” and “computer” as follows:

“258(1) In this Act:- “Bank” or “banker” means a bank licensed under the Banks and Other Financial Institutions Act Cap. B3, Laws of Federation of Nigeria, 2004 and includes anybody authorized under an enactment to carry on banking business. “Banker’s books” (and related expressions) includes ledger, day books, cash books, account books and all other books used in banking business. “Banking business” has the meaning assigned to it in the Banks and Other Financial Institutions Act, 1991. “Computer” means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.” Sections 51 and 52 of the Evidence Act, 2011 is couched as follows: “51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. 52. An entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.”Per TUR, J.C.A. (Pp. 42-46, Paras. A-B)

Government spends N8.4b yearly to feed 51,614 pre-trial inmates

The Federal Government spends an average of N8.4 billion yearly to feed awaiting trial inmates and persons in juvenile institutions. The figure excludes 23,217 inmates already convicted and serving various prison terms and 2,251 condemned inmates among whom are 47 females.Daily feeding allowance for each inmate in Nigeria is N450. Multiplied by 30 days, the figure amounts to N13,500 per person. If the population of convicted inmates was added to the figure, it would amount to N3,761,154,000 yearly, totaling N12, 161,154,000 billion for the detainees yearly.

The population of inmates in prisons across the country is put at 75,685. Of this number, 50,760 are awaiting trial, while 854 others, juveniles, are in borstal institutions. This brings the number to 51,614 pre-trial inmates, excluding those in detention facilities of the police, the Department of State Security (DSS), the military and other security agencies, whose feeding costs are not on record.

Ghana and South Africa spend ¢4000 (N320, 000) and R 52.42 (N1,328) to feed an inmate daily, an indication that the population on inmates in Nigeria creates a deep hole in government’s pocket.A retired Controller of Prisons, Dr. Ifediorah Orakwe, disclosed that the actual amount per inmate is N300. He said a breakdown of the N450 allowance would show that N150 was for cooking logistics while N300 was the real cost of feeding an inmate.

Some experts however noted that the amount that meets the United Nations Standard Minimum Rules for the Treatment of Prisoners 2015 (the Nelson Mandela Rules) is N1,500 per inmate daily. If this is adopted, government will spend N27.9 billion to feed pre-trial inmates yearly.

The spokesman of the Nigerian Prison Service, Mr. Francis Enobore, noted that the population of inmates fluctuated as suspects came and went. He expressed worry over the continued detention of persons awaiting trial and the resultant strain on facilities. Some analysts who spoke with The Guardian said urgent moves had to be taken to reduce the number of pre-trial inmates.

Director/founder, Prisoners Rehabilitation and Welfare Action (PRAWA), Dr. Uju Agomoh, blamed the growing number of awaiting trial inmates on arbitrary arrests and detention by security agencies, calling for an effective coordination among institutions involved in the criminal justice system.

“There must be clear processes, to monitor and track every case. There is need for accountability. There should also be a process of inter-agency coordination. The institutions have to talk to one another,” she said, regretting that a lot of people in detention didn’t have access to legal representation.

 Agomoh urged the Nigeria Bar Association (NBA) and the Legal Aid Council (LAC) to look into cases of inmates who lack proper legal representation, with a view to freeing those who do not deserve to be detained. Director, Access to Justice (A2J), Mr. Joseph Otteh, said: “Decongesting prisons will require effective reform of the criminal justice process, beginning with the point at which many people come in contact with the justice system.

“Arbitrary arrests and whimsical prosecutions will need to be reduced to a minimum. Many poor and vulnerable people are whimsically put through the criminal justice process because some influential people want them to be. And we have seen quite a few cases where these influential people are police or military officers who squabble about girlfriends with their victims.”

Otteh said the courts contribute significantly to the problem. According to him, delays in trials and failure to reform the bail system means many persons awaiting trial are locked up in penitentiary institutions while trials stretch endlessly.

“Some trials for simple offences can run for six, seven or 10 years. If we are able to reform our trial system and ensure that only people who have a legitimate reason to endure a criminal prosecution are processed through that system, we could significantly cut down the population of our prisons,” said Otteh.

The national coordinator of Legal Defence Assistance Project (LEDAP), Mr. Chino Obiagwu, said the problem has persisted because those saddled with managing the criminal justice system are not following the law guiding detention.

“The prosecutors in the Ministry of Justice, prosecutors in the courts, the judges and even the lawyers that defend them, nobody does his job, otherwise, there is no reason a law is made and it is not complied with.

“We are not ready to enforce the laws because people who are involved in pre-trial detention are the poor. That is why they are neglected. If rich people were affected, they would do something about it,” he said.

He noted that if states rather than the Federal Government were involved in funding prisons, they would have a rethink. “The law permits prison authorities to reject awaiting trial suspects because they are not prisoners. Those that are awaiting trial are supposed to have their own remand system. So, it is an aberration. If you free them, there would be enough space for those who are convicted,” Obiagwu added.

Source: https://guardian.ng/news/government-spends-n8-4b-yearly-to-feed-51614-pre-trial-inmates/

EFCC Act: To be repealed or not?

Last Tuesday, Attorney-General of the Federation (AGF) and Minister of Justice Abubakar Malami proposed the repeal and re-enactment of the Economic and Financial Crimes Commission (EFCC) Act. He said this would make way for a comprehensive overhaul of the issues in the Act which have been hampering its fight against corruption. But lawyers conversant with EFCC operations are divided on the proposal, ADEBISI ONANUGA writes.

The Attorney-General of the Federation (AGF) and Minister of Justice, Mr. Abubakar Malami, last week wrote to the House of Representatives seeking a review of the Economic and Financial Crimes Commission (EFCC) Act 2004, to remove all lacuna hindering the performance of its duties.

The AGF asked members of the Lower Chamber of the Legislative House for a comprehensive review of the Act. Alternatively, he suggested they repeal and re-enact the Act, to come up with a new and harmonised bill that would address the issues he raised.

The House Committee on Financial Crimes, chaired by a member of the All Progressives Congress (APC) from Ogun State, Mr. Kayode Oladele, last Tuesday presented two bills to the House for public hearing: “A Bill to Amend the Economic and Financial Crimes (Establishment) Act” and “A Bill to Amend the Money Laundering (Prohibition and Prevention) Act”.

The AGF, it was reported, gave a long list of proposed amendments which included a bill granting autonomy to the Nigerian Financial Intelligence Unit (NFIU), currentlty domiciled under the EFCC.

The AGF proposed the setting up of a sub-committee of the lawmakers, the EFCC, his office and other stakeholders to do a thorough review of the Act. The EFCC is said to be in full support of a harmonised bill as it would strengthen the agency.

However, while the EFCC agrees with the AGF’s proposal on the need for a harmonised and a comprehensive bill, the Nigerian Law Reform Commission (NLRC) is not favourably disposed to it.

EFCC Act 2004

The EFCC Act 2004 established the commission. The Act mandates the EFCC to combat financial and economic crimes. The commission is empowered to prevent, investigate, prosecute and penalise economic and financial crimes’offenders, and is charged with the responsibility of enforcing the provisions of other laws and regulations relating to economic and financial crimes, including: Economic and Financial Crimes Commission Establishment Act (2004); The Money Laundering Act 1995; The Money Laundering (Prohibition) Act 2004; The Advance Fee Fraud and Other Fraud Related Offences Act 1995; The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994; The Banks and other Financial Institutions Act 1991; and Miscellaneous Offences Act.

Based on this mandate, the EFCC, under its Acting Chairman, Ibrahim Magu, has been at the forefront of the fight against corruption, sometimes, using a combination of these laws.

While observers of the polity see the need to review the EFCC Act, they however don’t agree with the proposal to repeal the act against the background of many recoveries made by the commission. To this group, a repeal of the act is suspect, given the recent face-off between Magu and NGF. They questioned the need to repeal the Act through which, in their view, the agency made huge financial recoveries and convictions.

 

EFCC successes

 

There is a general belief that Magu, in spite of the non-confirmation of his position by the lawmakers, has performed as well as, if not better than, any of his predecessors.

For instance, under Magu, the EFCC has secured 340 convictions in courts for various offences and recovered billions of dollars of stolen funds within the last six months.

In addition, the commission using the mechanism of the non-conviction-based forfeiture provided under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, had made a lot of recoveries. This year alone, the commission recovered stolen assets running into several millions of dollars and billions of naira.

These include the $43 million recovered from Diezani Alison-Madueke, Nigeria’s former Minister of Petroleum, and N2 billion from seven accounts within three Nigerian banks laundered from the Federal Capital Territory Police Command Salary Accounts.

The country had also made progress in specific cases related to Abacha loot, Malabu Oil, Diezani and associates, and the arms procurement scandal.

Another instance is the recovery of $9.2 million and 750,000 pounds from the home of Mr Andrew Yakubu, a former Group Managing Director of the Nigerian National Petroleum Corporation (NNPC) in Kaduna State. The money is said to be in excess of N3 billion at the official exchange rate.

There was also the case of a public servant from whom the agency recovered N1.25 billion.

 

Why a review of EFCC Act may be desirable

 

Some observers, however, appeared to be in agreement with the AGF whose office, sometimes, disagrees with the EFCC on how it handles high-profile anti-graft cases.

 

Non-diligent prosecution of

PEP cases

 

Although many of the EFCC cases involving Politically-Exposed Persons (PEPs) are yet to be concluded, and many other PEPs are under EFCC investigation, the commission has been accused of poor and non-diligent prosecution of a few of the PEP corruption cases it has lost.

Critics say these are the main reasons the agency has hardly secured convictions of high-profile persons for allegedly looting the country’s treasury, notwithstanding the huge funds recovered in some cases.

They argued that this was why President Muhammadu Buhari-led administration was yet to score a high profile conviction since it began its war against corruption in May  2015.

 

Appointment of EFCC chairman

 

One contentious issue which attracted attention of observers was the appointment and confirmation of the chairman of the commission. There have been arguments whether or not the President requires the confirmation of the Senate for the appointment of EFCC chairman.

The mostly referred sections in the matter are 1(1) and (3) of the 1999 Constitution (as amended) and Section 171(1) (2) of the same constitution, vis-a-vis Section 2(3) of the Economic and Financial Crimes Commission (EFCC) establishment Act 2004.

The non-clarity of the interpretation of this Section of the Constitution and the EFCC Act has been one of the reasons why Magu remains Acting Chairman of the commission.

 

Inadequate funding of the EFCC

 

Some observers believe all inhibitions must be removed if the EFCC must function to expectation.

One way of achieving this, they said, is ensuring adequate funding of the agency. But how can this be achieved? Is a repeal and re-enactment the answer?

During a plenary sitting of the House of Representatives last week,  the Secretary of the commission, Mr. Emmanuel Adegboyega, who represented Magu, made a case for adequate funding of the agency as stated among the amendments proposed for the EFCC Act.

He emphasised the importance of proper funding of the agency if it must work and deliver on the expectations of the government and the people of Nigeria.

To this end, he requested that a fraction of the money, up to five per cent, recovered by the commission within the last two years, be allocated to the agency to speed up its activities.

But the NLRC opposed the idea of giving some percentage of recovered loot to the EFCC. Its representative, Prof. Jummai Awudi, argued that it would be “legally and morally wrong” for the commission to keep part of the recovered money to itself.

 

Suspension of NFIU from

Egmont Group

 

In the heat of the controveray, the Senate and the office of the AGF blamed Magu for the suspension of the Nigeria Financial Intelligence Unit (NFIU) from the Egmont Group.

The Egmont Group is a body of Financial Intelligence units whose members compare notes on matters relating to international finance and illicit flow of monies.

Presently, the NFIU operates as a department under the EFCC. But the Senate and Malami would prefer that the NFIU operated independently.

The AGF alleged that the EFCC had been “manipulating and misusing intelligence to the detriment of the fight against corruption and financial crimes in Nigeria”, adding that the commission was not happy with the effort of the government to have an independent NFIU.

The independence of the NFIU is one of the amendments to the EFCC Act proposed by the office of the AGF

According to Malami, this request is reinforced with the need for a review of the NFIU operatives and operations to make it stronger for Nigeria’s re-admission to the Egmont Group.

 

Lawyers reaction

 

Lawyers who are conversant with the workings of the EFCC, however, see the proposal of the AGF in another light.

To, them, a repeal or re-enactment of the Act is dangerous and might not be in the interest of the commission and the fight against corruption.

They include activist lawyer Festus Keyamo (SAN), a former member of the Ogun State Judiciary Service Commission, Abayomi Omoyinmi, and former Welfare Secretary, Nigerian Bar Association (NBA), Ikeja Branch, Samson Omodara.

Keyamo said the controversy over the NFIU was needless. According to him, the functions of the NFIU were so closely connected to EFCC operations that it was not practicable for both organisations to be separated in the way that is being proposed.

He, however, said he would make more comments when a full detail of what is to be done on the matter becomes public.

Omoyinmi said the AGF’s  proposal on total repeal and re-enactment of the EFCC Act is wishful. “It cannot be achieved and I believe it is very unnecessary to have the whole Act repealed.

“I am of the opinion that the Act can go through a steady review in line with amendment which is under consideration by the National Assembly. The grey areas observed should be attended to during the course of reviewing the Act which obviously would be put forward for amendment.

“Attention should be given  to areas of funding, training, special powers ,investigation and prosecution. These are areas that may need to be reviewed and that can strengthen the functions of the commission as we presently have it as opposed to total repeal proposed by the AGF,” he said.

Omodara also opposed a repeal of the Act. According to him, “our problem in this country is not lack of laws but holistic and spirited implementation of these laws, EFCC Act inclusive”.

He argued “no law is flawless even the grundnorm. I therefore will not subscribe to a total repeal rather an amendment as it has been done to the Electoral Act. The officers responsible for the investigation and prosecution of suspects must be thorough and patriotic.  The punishments as contained in the Act may also be looked  into with a view to deterring corruption. Capital punishment may be considered like the China’s position”, he advised.

Source: http://thenationonlineng.net/efcc-act-repealed-not/

Lagos Chief judge tasks lawyers on ADR

The Chief Judge of Lagos State, Justice Opeyemi Oke, has charged lawyers to imbibe Alternative Dispute Resolution (ADR) mechanism as part and parcel of their practice.

The chief judge told lawyers that the use of ADR would enhance access to justice, improve speedy dispensation of justice and help to decongest court dockets across the country.

Oke said this in Lagos at the first ADR roundtable for lawyers, organised by the Lagos Multi-Door Courthouse (LMDC) in collaboration with the Lagos Ministry of Justice.

According to her, the forum was orgainsed to educate lawyers to desist from being resistant to the use of ADR and not to see it as an “alarm drop in their revenue.”

She said: “As a magistrate and judge in Lagos State, I have in numerous occasions encouraged parties to explore ADR and settle cases out of court.

“Most of those cases were resolved out of court and parties were able to maintain their relationship and confidentiality were maintained.

“The resistant of lawyers to ADR is understandable and forgivable but when the concept is understood, engagement to the process will be profitable.”

Oke noted that in other advanced jurisdictions, a lot of cases go through ADR and are brought to court only when ADR failed.

“It is obvious that legal education in this country needs to be modernised to keep pace with the modern trend.

“However, in the interim, as lawyers and gate keepers in the justice sector, we have to make quick decision and imbibe the process to improve the society and reduce emotional stress undergone by parties who go through courts,” the CJ said.

A senior lawyer with the Ogundipe and Belgore law firm, Mr Babjide Ogundipe, advised lawyers to first evaluate cases brought to them and know what would be better for their clients.

Ogundipe was represented by a lawyer in his firm, Mr. Yemi Akande and spoke on the topic: The role of a 21st century lawyer: Advocate or Deal Maker?

His words: “As a lawyer, you should exercise due care in carrying out your client’s case, instead of getting a case locked up in litigation for several years, it is better to engage in ADR. A 21st century lawyer is one who is pragmatic and have the transaction mind.”

Ogundipe said that ADR has helped aggrieved parties to resolve issues in lesser time than when cases go through litigation, adding that at the end of ADR both parties make lots of economic advantage.

Mr Mark Mordi, who spoke on the topic: “Best practices and modern trend”, encouraged lawyers to adopt the global trend and learn how ADR is done.

He said that lawyers should imbibe dispute resolution mechanism and encourage their clients to settle some cases out of court in order to minimise costs and length of time wasted in courts.

“Access to court does not necessarily mean access to justice. The high fees and length of time taken in courts sometimes negates principles of justice,” Mordi declared.

The Chairman of the LMDC governing Council, Justice Olateru Olagbegi (Emeritus judge) in his remark explained that the idea behind the roundtable forum was to promote ADR and fulfill the statutory mandate of the LMDC by encouraging lawyers to help in decongesting the courts through ADR.

Source: https://guardian.ng/features/lagos-chief-judge-tasks-lawyers-on-adr/

Rights Groups Demand Arrest, Prosecution Of Kwara Senator Lafiagi For Alleged Murder Of 4 Students

Eight civil society organizations have called for the arrest and prosecution of Mr. Shaaba Lafiagi, a senator representing Kwara State, for the alleged extra-judicial killing of four of the students protesting against the shoddy representation has provided for his constituents.

The four young men were shot dead by soldiers attached to Mr. Lafiagi on Friday.

The rights groups made their demand in a statement jointly signed by their leaders.

Among the signatories were Messrs. Charles Ofemi of Kwara Youth Stakeholders Forum, Abdulrazak Hamzat of Kwara Must Change, Ibrahim Garba Wala of Citizens Action To Take Back Nigeria and  Idris Ahmed of Citizens United for Peace and Security. Others were Ahmed Buhari of Cabal Must Go, Miriam Yakubu of Be The Change Organization, Olatunji Yusuf of Legacy Must Change and Daniel Seun of Citizens of Impact.

According to the statement the deceased were killed during a peaceful protest against the poor quality of representation Mr. Lafiagi has provided.

The groups noted that the unfortunate incident has been confirmed by the Nigerian Police Force (NPF), Nigeria Security and Civil Defense Corps (NSCDC) and other security agencies.

“The reprehensible occurrence, which led to the brutal execution of defenseless, unarmed and peaceful protesters happened as a result of high level irresponsibility, rascality and lack of maturity, which propelled Senator Muhammed Shaa’aba Lafiagi to order soldiers to execute protesting youths, who were merely expressing their disaffection with the senator’s lack of proper representation of the people,” the groups said.

While condemning the development, the groups stated that the protesters were well within their rights to express their displeasure in a peaceful manner. They noted that Mr. Lafiagi is one of those that have completely given up on their constitutional duties to look after the welfare of their constituents.

“For many years, the main road that leads into Lafiagi town has been in a very bad state. It was not motorable for quite some time. This includes a dilapidated culvert at Sobo. In order to fix this problem that has clearly affected the economy and mobility of the good people of Lafiagi town, the patriotic youths of the town mobilized financial resources and fixed half of the road.

“When the Senator showed up with his entourage on Friday, the youths stopped his convoy and asked him to own up to his responsibility by fixing the remaining half. Instead of placating the youths by showing maturity and leadership, the bloodthirsty Senator Mohammed Sha’aba Lafiagi called on upon trigger happy soldiers, who opened fire on the peaceful demonstrators,” the groups recalled.

They stated that the lawmaker has become a law breaker and must not escape from the wrath of the law, as the killing was a needless waste of human life. In addition, the rights groups reasoned that it is because of the presence of tyrants like Mr. Lafiagi in the federal legislature that no laws will be made for the benefit of the masses.

“In view of this unfortunate situation, we the undersigned Civil Society Organizations (CSOs) aver that the days of impunity and extra-judicial killings are well and truly over in Nigeria and we therefore demand that the Inspector General of Police, as a matter of urgency, order the arrest and prosecution of Senator Lafiagi and his trigger happy soldiers within two weeks, else we will call for civil action against the politicians in National Assembly. This demand should be taken very seriously and acted upon with immediate effect because justice delayed is justice denied,” the groups demanded.

Source: http://saharareporters.com/2017/11/20/rights-groups-demand-arrest-prosecution-kwara-senator-lafiagi-alleged-murder-4-students

Monarch moves against rapists, domestic violence, child abuse In community

The traditional ruler of Igbogbo Kingdom, in Igbogbo/Bayeku Local Government Development Area of Lagos State, Oba Abdulsemiu Orimadegun, the Adeboruwa of Igbogbo kingdom, has declared  war against perpetrators of rape, domestic violence, child abuse in the area.
The monarch spoke weekend, during a sensitization walk, aimed at fighting sexual and gender based violence in the community. Speaking at the event organized by Lagos State Domestic and Sexual Violence Response Team (DSVRT), the monarch said children were leaders of tomorrow and that the community would not toy with the welfare of its upcoming generation. Orimadegun said: “We will not tolerate child abuse in Igbogbo. No children will be abused, harassed and persecuted in this community and  that is why we are partnering with the Lagos State Government in this lofty policy that is being implemented  and which other states in the federation are now following.” Speaking with Vanguard at the event, the State Coordinator of (DSVRTT), Titilola Vivour-Adeniyi, said the aim of the walk “is to sensitise the community on sexual and gender based violence crimes.”

Source: https://www.vanguardngr.com/2017/11/monarch-moves-rapists-domestic-violence-child-abuse-community/

Sanction lawyers who give their seals to agents — NBA, Ilorin Branch- Judiciary Committee Report

Reforms improve the Legal Profession. This is one reason why the Constitutional Review Committee or any other similar committee is set up to introduce recommendations that will be of immense benefits in improving the current state of the profession. But what happens when sound recommendations are sometimes treated as triviality or perhaps forgotten? This may be fate of the Report of the Bar/Judiciary Committee of the NBA, Ilorin Branch.

In this exclusive report, the judiciary committee listed out some recommendations that are not only interesting but may stand the test of time if eventually implemented.1. PREAMBLE:
This committee was set up at the monthly meeting of the NBA Ilorin Branch held on 25th May, 2016. Members of the committee are:
Sir J.S. Bamigboye, SAN ………. Chairman
Olateju K. Taofiq Esq. ………. Member
Olorunisola Olasunkanmi Esq. ….…… Member
Dr. R.O. Abdulkadir ………. Member
Olayemi Shittu (Mrs.) ………. Member
Wahab Ismail Esq. ………. Member
Ibrahim Toyin Jimoh Esq. ………. Member
Oluronke Adeyemi (Mrs.) ………. Secretary

The Committee met and deliberated on the terms of reference given to it and has come up with the following report and recommendations.

a. Court Rooms: Members raised the issue of the deplorable conditions of most of our court rooms which are quite embarrassing. Court rooms at Offa, Omu-Aran, Bode Saadu, Oloje, Akerebiata, Pake, Ganmo and some even at the headquarters are in very bad shape and unfit for legal practice. The committee suggests that the NBA should recommend the following to the leadership of the Judiciary:

i. That all the courtrooms should be given a face lift.
ii. That cleaners be employed and supervised to ensure cleanliness of these courts at all times.
iii. The locations of the courts at Oloje, Centre Igboro, Ganmo and Pake are not conducive for legal proceedings and the courts should be relocated to more conducive locations.
iv. That the Judiciary should be given a time frame of six months to relocate the said courts or we boycott proceedings in such courts.
v. The court at Akerebiata should be renovated. The compound needs proper drainage as well as concrete floor. It is recommended that the NBA can assist with the renovation of this court as a social responsibility and to encourage the judiciary.

b. Service of Process By Bailiffs:
The idea of haggling with the bailiffs on fees for service was condemned. It is hereby suggested that the Judiciary and the Bar should work out a realistic bill of charges for service of court processes which will be payable to the treasury and the bailiffs mobilized by the Judiciary to effect the service. That way, the lawyers have no need to contact the bailiffs except to provide a pointer if required.

c. Commissioners for Oaths: It was observed that Judiciary Staff who act as Commissioners for Oath are too many. This gives room to all kinds of shady practices. It was observed that there are no records of affidavits deposed to at the court making it difficult to authenticate the genuiness of filed affidavits. It was suggested that the office ofthe Commissioner for Oaths be streamlined and copies of affidavits sworn to at the court be retained to check proliferation of fake affidavits.

d. Improper Dressing by Judicial officers and other members of Staff: It was observed that the dressing of some judicial officers and court registrars are not in conformity with the demands of this profession. Some wear bright coloured shirts and dresses to sit in court. Court Registrars come in all manners of dresses like jeans, T Shirts, leggings etc. It is suggested that a dress code should be made and enforced for members of staff of the Judiciary to give more respectability to the courts.

e. Dressing by Lawyers: A dress code enforcement committee of the NBA should be set up to ensure that Lawyers are properly dressed for court appearances and Bar meetings. Lawyers wearing slippers, sandals and coloured shirts/dress to court should not be condoned. We recommend that the Chief Judge pass a circular to all courts that lawyers that are not properly dressed should not be given audience in the courts, while lawyers that are not properly dressed to Bar meetings should also not be given audience at such meetings. We also urge the Bar to bring it to the knowledge of our colleagues that wearing of bibs and any kind of display of wigs and gowns are only for the court and not around town or on the dashboard of our cars.

f. Applications for Orders, Rulings and Judgements: The impunity with which court clerks, Registrars and typists ask for money before making available copies of hearing notices, orders, rulings and judgement was discussed. It has indeed reached an alarming proportion.
The position of the 1999 constitution in S 294(1) is that rulings and judgements be delivered within ninety days after the conclusion of evidence and final addresses and the court must furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. This was the practice in this jurisdiction until a few years ago. It is sad to note that while the courts comply with the first part of this law by delivering judgement within ninety days of final addresses, the other part of making copies of the decision available within seven days is no longer complied with. This has gone a long way in encouraging extortion of litigants and parties by court officials who charge unreasonable fees before making the copies available. Part of the reasons given for this unwholesome practice by some registrars range from lack of stationeries to inability to read the handwriting of the judge/magistrate thereby necessitating the need to take the judgements to business centers to type out. It was suggested that the constitutional requirements should be strictly adhered to. All necessary facilities for the production of hearing notices, orders, rulings and judgement should be made available by the judiciary. Our honourable judges and magistrates should ensure that typed copies of their rulings and judgements are made available to parties as required of them by the law in order to avoid the unpleasantness and embarrassment that will attend a petition being written against them by an aggrieved party. It is important to note that it is the head of such a court that will be called to question and not the supporting staff. We recommend that the leadership of the Bar take this matter up with the Honourable Chief Judge.We also recommend in the alternative that if it is not possible (for economic reasons) for the documents to be made available free of charge, appropriate fees should be fixed for payment to the treasury to get the documents.

g. Training of Judiciary Staff: Magistrates, Area Court judges and other court officials should have periodic trainings organized for them in conjunction with NBA to sharpen their skills and enhance productivity.

h. Lateness of courts in sitting: It was observed that some judicial officers have developed the habit of sitting late constantly without any regard for the appropriate time of court sittings or apology or explanation to members of the Bar.
It is recommended that if any court does not sit by 9.15am (except where courtrooms are being shared) and there is no message from the Judge, Magistrate or Area Court Judge, the most senior lawyer in court should lead others to walk out on such a court.

i. High Court Offa: It was observed that the Judge at the Offa High Court was on National assignment for about one year paralyzing the court. It was recommended that another judge be transferred to Offa while the idea of the sole judge sitting in a jurisdiction going on national assignment should be seriously discouraged.

j. Lack of Etiquette among lawyers:The lack of respect and etiquette by our junior colleagues was also discussed. Some juniors have no respect for seniors, very rude in conduct and speech to their colleagues as well as even to the court at times. Some are so bad that it is difficult to believe they are lawyers. The Bar should not hesitate to deal with such bad eggs.

k. NBA Seal: Lawyers should desist from the habit of giving their seals to lawyers who have no seals so that we will not be aiding fake lawyers. Any law office where no lawyer in the office has a seal should be closed down. Our colleagues should raise objections to lawyers using other lawyer’s seals or using any suspicious seal. The idea of lawyers selling their seal to land agents or anyone whosoever should be treated as a professional misconduct and appropriate actions taken against such a member.

Sir J.S. Bamigboye SAN
Chairman

Oluronke Adeyemi (Mrs.)
Secretary

Source: https://thenigerialawyer.com/sanction-lawyers-who-give-their-seals-to-agents-nba-ilorin-branch-judiciary-committee-report/

SERAP, pensioners drag Buhari to ECOWAS Court

Socio-Economic Rights and Accountability Project (SERAP) and several pensioners’ associations have asked the ECOWAS Court of Justice in Abuja to order the federal government led by President Muhammadu Buhari to deduct the pensions, salaries and gratuities of pensioners and workers across several states of Nigeria from the statutory allocations of the indebted state governments.

They also want President Muhammadu Buhari to order the payment of same directly to the pensioners and workers on a-monthly basis.In the suit marked number ECW/CCJ/APP/39/2017, the plaintiffs are suing over violations of the human rights of workers and pensioners to equality and equal treatment.

They want immediate payment of all outstanding pensions, salaries and gratuities through deductions from statutory allocations of the indebted state governments, and payment of adequate money compensation of N50 million to each of the pensioners and workers.

Other plaintiffs joining SERAP in the suit are: First Bank of Nigeria Pensioners (Lagos); Mrs Comfort C. Owoha; Joseph Agabi; Osemwenkha G.O, and Mrs J.E. Enabunlele. The plaintiffs are suing for themselves and on behalf of their members and other workers and pensioners across the country whose salaries and pensions have not been by the states and Federal Government for several months.

In the suit filed on their behalf by Solicitor to SERAP, Femi Falana, the plaintiffs argued that the retirement system in Nigeria violated the right to equal protection of the law and dignity since senior public officials continue to receive “privileged pensions”, salaries and gratuities while the 2nd—7th plaintiffs, their members and several other Nigerian pensioners and workers continue to be denied their entitlements, salaries and gratuities.

They also argued that, “Under international law, Nigeria cannot invoke the provisions of its internal laws or the nature of its federation as justification for its failure to perform a treaty obligation. A fundamental rule of the law of State responsibility is that a State cannot escape its responsibility on the international plane by referring to its domestic legal situation.”

The suit read in part: “Ultimately, the Federal Government cannot escape its responsibility to achieve the effective realization of the rights of Nigerian workers and pensioners to timely and regular payment of salaries, entitlements and gratuities, as it retains ultimate responsibility to ensure the rights of workers and pensioners are fully realized.”

“Workers and pensioners in several states in Nigeria have been victims of violations of civil and political rights and even more severely, of economic, social, and cultural rights. The 2nd-7th plaintiffs and their members and other Nigerian pensioners and workers have experienced extreme poverty, discrimination, social exclusion, stigmatization, and deprivation of protections and entitlements on an ongoing basis due primarily to the failure and/or negligence of the Federal Government to ensure that several states of Nigeria pay accrued pensions, salaries and gratuities.

“By granting the reliefs sought, the ECOWAS Court would be recognizing and reiterating the need for the government and its federating units to protect the rights and interests of the vulnerable, disadvantaged, and marginalized groups.

“Despite their obligations to protecting the human rights of vulnerable, disadvantaged and marginalized individuals and groups, the government has failed to prevent the systematic violation by several states of the federation of a wide range of human rights as a result of the continuing failure and/or negligence to ensure that the states timely and regularly pay workers’ salaries and pensioners’ entitlements and gratuities.

“The government has failed and/or neglected to ensure the timely payment of over 42 months of outstanding pensions and gratuities in Edo State of Nigeria despite Edo State receiving funds in the form of over N29 billion Paris Club refunds between November 2016 and July 2017 from the government.

“The government has since 2013 failed and/or neglected to ensure payment of accrued pensions and gratuities to about 4000 members of the Association of Retired Local Government Staff and Primary School Teachers in Delta State across 25 Local Government Councils of the State, leaving the pensioners to live in extreme poverty.

“Mrs Comfort C. Owoha served for 35 years as staff of the Sokoto State Primary School Board. But payment of her pensions expected to commence in 2001 after verification was inexplicably stopped by the Sokoto State Government.

“The government has failed to exercise due diligence, leading to the refusal and failure of the First Bank of Nigeria PLC to pay its pensioners accrued entitlements and gratuities and when pensions and gratuities are paid the Bank pay as low as N11,000, 13,000 as pensions despite the enormous amount in the Banks’s pension fund.

“The government has since December 2014 failed and/or neglected to ensure that Osun State of Nigeria remits monthly pensions deducted from the contributory pensioners. The government has also failed and/or neglected to ensure regular and timely payment of pensions and gratuities in Osun State, and that contributory pensioners have not been paid since January 2015.

“The government has failed and/or neglected to pay members of the Federal Civil Service Pensioners Association of Nigeria accrued pensions. The government continues to engage the Nigeria Union of Pensioners while deliberately sidelining the Federal Civil Service Pensioners Association of Nigeria and its members. The government is failing and/or refusing to ensure payment by several states of Nigeria of workers’ salaries and pensioners’ entitlements, amounting to billions of Naira in arrears.

“International human rights treaties to which Nigeria is a state party impose obligations on the government to ensure that economic difficulties and times of severe resource constraints cannot be used to undermine the enjoyment of the human rights of workers and pensioners in Nigeria, and disproportionately hurt them.

“The right to timely and regular payment of pensions and salaries is essential, particularly when a person does not have the necessary property available, or is not able to secure an adequate standard of living through old age or economic and social factors.

“According to the Nigeria Union of Local Government Employees (NULGE), 23 states of the federation currently owed workers arrears of salaries ranging from one to 24 months. The NULGE gave the breakdown of states as follows: Bayelsa State: 10 to 16 months; Kogi State: between seven to 15 months; Delta State: eight to 14 months; Kaduna State:12 months; Oyo State: three to 11 months; and Edo State: 10 months.

“Others are Abia State: five to nine months; Kwara State: two to nine months; Benue State: nine months; Nasarawa State: seven months; Ondo, Ekiti, Imo States: six months; while Zamfara State has not implemented minimum wage. Adamawa, Rivers, Akwa Ibom, Ebonyi, Plateau States are owing four months; Taraba and Federal Capital Territory: three months while Osun state has been paying half salaries for 24 months; and staff are owed few months in Enugu State.”

The plaintiffs therefore are asking the ECOWAS Court of Justice for the following reliefs:

“A declaration that the continuing failure and/or negligence of the Defendant to promote and ensure timely and regular payment by several states of Nigeria of pensioners’ entitlements and workers’ salaries and gratuities cannot be justified under any circumstances.

“A declaration that the failure and/or negligence of the Defendant to provide an environment necessary for securing and promoting the enjoyment of the human rights of pensioners and workers at the federal level and in several states of Nigeria to equality and equal treatment; equal protection of the law and non-discrimination; to dignity and independence; is unlawful.

“A declaration that the failure of the Defendant to promote and ensure an effective remedy and reparation for pensioners and workers who have continued to suffer due to the non-payment of pensions, salaries and gratuities by several states of Nigeria is unlawful.

“A declaration that the refusal of the Defendant to ensure the payment of pensions, salaries, and gratuities of the Plaintiffs is illegal and unlawful.

“An order directing the Defendant to respect, protect, promote, and fulfil the human rights of pensioners and workers to timely and regular payment of pensions, salaries and gratuities and therefore, to equality and equal treatment; equal protection of the law and non-discrimination; to dignity and independence; to the respect of the dignity inherent in a human being; to adequate standard of living and well-being; to property; to work; to family life; and to economic and social development.

“An order directing the Defendant and/or its agents to provide effective remedies and reparation, including adequate compensation, restitution, satisfaction or guarantees of non-repetition that the Honourable Court may deem fit to grant to pensioners and workers that have continued to suffer due to the failure and/or refusal by the Defendant to promote and ensure payment by several states of Nigeria of pensioners’ entitlements and workers’ salaries and gratuities.”

Source: https://thenigerialawyer.com/serap-pensioners-drag-buhari-to-ecowas-court/