Court Refuses To Compel Buhari To Enforce Benue’s Anti-Open Grazing Law

…Says it is the duty of the Benue State government to enforce it with all legal machineries.

A Federal High Court in Abuja on Thursday struck out a suit that sought to compel President Muhammadu Buhari to instruct security agencies in the country to enforce the Benue State’s Open Grazing Prohibition and Ranching Law passed in 2017.

Justice Ijeoma Ojukwu, in a judgment read during a virtual court proceeding, said her court lacked the jurisdiction to entertain the suit brought by the plaintiff and proceeded to strike it out.

The plaintiff, Matthew Tile Nyiutsa, who said he is a lawyer and indigene of Benue State, had sued President Muhammadu Buhari, claiming that the President, by his oath of office, incurred a mandatory obligation to uphold and preserve the law of the land, but has failed to abide by his oath when he refused to implement the Benue State’s Open Grazing Prohibition and Ranching Law.

Nyiutsa added that despite the existence, herders have remained unrelenting in practicing open grazing, engaging in killings and destructions, but that the President has failed or refused to enforce the law, in view of his oath of office by using the security and enforcement apparatus within his powers.

In her judgment on Thursday, Justice Ojukwu held that the failure of the President to discharge his official responsibilities in accordance with his oath of office is not justiciable and that the court cannot hold the President accountable for not abiding by his oath of office.

“In my view, the courts do not have the vires to entertain any suit bordering on compliance with the oath of office of the President for the reason that it is not justiciable.

“When the person, in this regard, the President, fails to abide by the oath, the National Assembly, in line with the set down procedure, may consider it a misconduct in the performance of the functions of his office and take the appropriate measure under the Constitution. It is not the duty of this court to adjudicate on

“The plaintiff may have genuine concern in respect of the facts averred, but there are procedures set out by law to address issues concerning citizens’ rights and violations.

“There is no contest that the Open Grazing Prohibition and Ranches Establishment Law, 2017 was validly made by the Benue State House of Assembly, and that law is still extant and in force since this law has not been struck down by any court of competent jurisdiction.

“The implementation, therefore, lies with the machineries of the state and law enforcement agencies like the police, whose duty is to maintain law and order and to secure lives and properties in accordance with Section Four of the Police Act.

“It behooves the people of Benue State and law enforcement agencies, task force, etcetera to employ all legitimate means to implement that law.

“It is not the duty of the defendant on record. It is only where there is an infraction of the provision of that law that the court may be invited to impose the prescribed sanctions

“In so far as the President has not issued any Executive Order, which runs contrary to the said law, this court cannot hold him accountable.

“In the same vein, the court is not the appropriate arm to check any infraction in the performance of the functions of the office of the President arising from the oath of office taken by the President on the assumption of his duty as the President of the Federal Republic of Nigeria.

“That duty or obligation belongs to the National Assembly, through the process prescribed by the Constitution,” the judge said.

Justice Ojukwu equally held that by the provision of Section 308 of the Constitution, the plaintiff was wrong to have sued President Buhari in his personal capacity on an issue that relates to the performance of his official responsibilities.

“The immunity provided in Section 308 of the Constitution protects the occupier of the offices named in the section against the institution of either civil or criminal suit in his personal capacity while in office.”

She said although the suit was in relation to the responsibility of the President in his official capacity, the plaintiff went outside that official capacity by adding the personal name of the defendant – Muhammadu Buhari.

“The proper defendant, in this case, ought to have been the President, Federal Republic of Nigeria. The life of this suit cannot be sustained if, for any reason, President Muhammadu Buhari ceases to be in office, this suit will automatically abate since it cannot be sustained by any other President, his personal name hasn’t been attached.

“This cannot be the position of the law since governance is a continuum and does not terminate because the tenure of office of a particular officeholder has elapsed.

“The proper defendant in this case, on the alternative, should have been the Attorney General of the Federation, and the defendant on record (Myuhammadu Buhari) as a nominal party. Or, on the other hand, the President, Federal Republic of Nigeria,” Justice Ojukwu said.