Recent Decision In Barr Ikenga Imo V. President And The Constitutionality Of Order 6 Of 2018— Download The Judgement

INTRODUCTION

On the 5^th of July 2018, President Muhammadu Buhari signed the Presidential Executive Order No. 6 of 2018 on Preservation of Assets Connected with Corruption and Order Related Offences. The Order, which in the wake of its passage has been subject to severe criticisms by Legal commentators and Activists, recently came before the Federal High Court sitting in Abuja for determination in Suit No: FHC/ABJ/CS/740/2018-BARR. IKENGA IMO & ANOR V. PRESIDENT OF FRN & ANOR. This write up gives a summary of the decision of the court delivered by Hon. Justice Ijeoma Ojukwu on the 11^th of October 2018 on the constitutionality of the Executive Order.

FACTS IN THE SUIT

Upon the passage of Order No. 6 of 2018 on the 5^th of July 2018, the Plaintiffs approached the Court vide an Originating Summons dated and filed the 13^th day of July 2018, seeking determination of the following:

1. Whether by the combined effect of Sections 5, 36 and 43 of the Constitution the President lacked the constitutional powers to issue Order No.6 since the order did not concern matters relating to “execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”.
2. Whether the act of the President in issuing the order is contrary to the provisions of Sections 36 and 43 of the Constitution and therefore unconstitutional, null and void.
3. Whether the President can deliberately undermine, limit and/or inhibit the entrenched constitutional rights of any citizen of Nigeria to fair hearing vide the issuance of the Order and thereof issue or promulgate any penal sanction or penalty against any citizen of Nigeria, without such person being accorded fair hearing or been found guilty by a court of competent jurisdiction.

The Plaintiffs prayed the court amongst others to, upon determination of the suit declare Order No.6 unconstitutional, null and void.

In the supporting affidavit to the Summons, the Plaintiff averred that none of the persons listed in the Schedule to the Order had been found guilty by any court in their respective trials. The Plaintiff averred that the Constitution accords the right to presumption of innocence until the contrary is proved and fair hearing to every citizen before he can be convicted of any offence or made to suffer any legal disability. The Plaintiff’s affidavit also noted that the said Executive Order is in form of a penal sanction as it empowers the government through its various agencies to interfere with and exercise powers inconsistent with the lawful ownership of assets and properties of Nigerians, and also limits, inhibits and encroaches on the right to own properties by citizens.

It was further averred that there was no guarantee that affected Nigerian citizens would be found guilty at the conclusion of their criminal trial and they would therefore be unjustly victimized. The affidavit contented that agencies of the Federal Government are already imbued with statutory framework under their enabling laws for the interim preservation of assets and properties, pending the conclusion of trial and the Executive Order is a needless interference into the rights of citizens and portends great danger to democracy. The Plaintiff therefore urged the Court to intervene.

ARGUMENT OF PLAINTIFF

Learned Counsel for the Plaintiff canvassed a sole issue in argument:

“Whether it is in the interest of justice to allow the Reliefs sought, having regard to the entire facts and circumstances of this case”

Plaintiff argued that the Rules of Court and the Constitution empowered the Court to hear, determine and grant the Plaintiffs reliefs in the instant case. The Plaintiff noted that they had disclosed sufficient facts and materials to establish their standing to institute this suit since, as was stated in their affidavit, they are citizens and have vires to question or challenge any act of government including the Executive order. Counsel relied on BEWAJI V OBASANJO (2008) 9 NWLR (PT.1093) 540, 581-582 and BADEJO V FEDERAL MINISTER OF EDUCATION & 2 ORS (1990) 4 NWLR (PT. 143) 254, 263.

Plaintiffs further argued that

Section 5 of the Constitution of the Federal Republic of Nigeria 1999 does not confer upon the President with blanket powers to promulgate an Executive Order but it must extend only to the “execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”. The Plaintiff noted further that this is particularly so as relevant government agencies already have statutory framework under their enabling laws for the interim forfeiture and preservation of assets where the need arises.

The Plaintiff also argued that Nigerian citizens whose names were listed in the schedule to the Order as being affected are presently facing various criminal charges and none of them has been found guilty of the offence charged. Counsel for the Plaintiffs called in aid the provisions of Sections 36 and 43 of the Constitution and noted that an Executive Order cannot deny any citizen of Nigeria a right to the enjoyment of his assets and properties except under extreme circumstances as provided under the constitution and urged the Court to pronounce that the Executive Order is inconsistent with the provisions of Sections 36 and 43 of the Constitution and declare it null and void to the extent of its inconsistency.

DEFENDANTS ARGUMENT

In reacting to the Originating Summons, the Defendants filed a Preliminary objection dated 7th day of August 2018 and a Counter affidavit to the Originating Summons dated 13^th day of September 2018 challenging the Plaintiffs locus standi to institute this action.

The Learned counsel to the Defendant submitted that since the names of the Plaintiffs were not included in the First Schedule to the Executive Order, they are in no way affected and cannot exercise any standing to sue the Defendants in this suit. He  argue that there is no nexus between the Plaintiffs and the disclosed cause of action concerning their rights or obligations which have been breached or threatened to be violated.

Furthermore, Counsel opined that granting the reliefs sought by the Plaintiffs would open a floodgate of litigation whether or not the persons instituting the action have a right to protect.

In the written address of the Defendant, the Defendants amongst others, raised issues as to:

1. Whether the affidavit in support of the plaintiffs’ Originating Summons is not incompetent.
2. Whether considering the facts and the circumstances of this case, this honourable court can grant to the Plaintiffs, the reliefs being sought.

On the first issue, the Defendants argued that the affidavit of the Plaintiffs in support of the originating summons offends section 115 (1) to (4) of the Evidence Act for the reason that the averments contain extraneous matters and are either law, or legal arguments and conclusions and also that the Deponent failed to state the source of his information and belief, reasonable particulars of the name of informant, time and place, and circumstances of the information.

The Defendant also argued that Section 43 referred to by the Plaintiff, which guarantees the right to own properties should be read together with Section 44 (2) (k) of same Constitution which permits the taking over of the property in criminal investigation and argued that the temporary taking over of any property does not bias or affect the trial of that  case, since the prosecution still has the burden to establish the offence beyond reasonable doubt and therefore the Executive Order does not abrogate the right to seek redress before Court under Section 46 of the Constitution.

The Defendants urged the Court to dismiss the suit with substantial cost.

JUDGEMENT

On whether the Plaintiff had established locus standi to bring the suit the Court held:

“From the above provisions of the Executive Order, the application of the Order is not restricted to only persons whose names appear in the First Schedule to the Executive Order. The use of the words “any person” depicts that every Nigerian who is adjudged to be in “violation” of the terms of the Executive Order under Section 1 (a) automatically subjects himself to the application of the Executive Order and will have his assets under guard by the terms of the Executive Order. That being the case, it thus follows that the plaintiffs are subjected to the terms and application of the Executive Order…It is my humble opinion that the Plaintiffs have shown by their averments and the law that they have the standing to institute this case. Therefore i. resolve this issue in favor of the Plaintiffs. The preliminary objection of the Defendants on this issue is hereby overruled.”

On whether the Plaintiff Affidavit offended evidential rules and should be struck out the Court held:

“Let me also state at this stage that the affidavit in support of the Originating Summons does not offend section 115 of the Evidence Act which provides for the contents of an affidavit…the law accommodates the use of personal information and information derived from other sources. It was a combination of the two sources of information that was represented in the affidavit in support. In respect of extraneous matters and legal conclusions, the court is not bound to rely on them if in fact they exist, for the reason that they do not assist the case of the deponent. Any such representations are hereby disregarded.”

On the meaning and nature of Executive Orders, the Court noted:

“…An Executive Order in effect may be seen as a Presidential policy directive, issued to effectuate or implement an Act of the National Assembly or an existing law. Within the setting of courts, it is akin to “a Practice Direction” issued by Heads of Court by the powers conferred on them under the Constitution to make such “rules” for the effective administration of the law and justice…In Nigeria however, the power of the President to issue the Executive Order in question was stated to flow from section 5 of the Constitution”

On whether Executive Order No.6 is Constitutional the Court held:

“The President can issue an Executive Order under section 5 of the Constitution in so far as the Order relate to routine administrative matters and internal operations of Federal Agencies, policies and programs, and so long as it does not encroach into the powers of the Legislature or the Judiciary as delineated under the Constitution of the Federal Republic of Nigeria 1999…I have carefully perused the provisions of the Executive Order in contestation, I find that, the powers exercised by the President in that regard per se is not unconstitutional, but some latent aspects of the letters of the Order appear to give the Attorney General a discretion to choose when to seek appropriate Order(s) of Court in carrying out his functions under the Order…For Example, the proviso to Section 1 (c) (iii) of the Executive Order corroborated by Section 1 (c) (iv) of the Order…The use of the word “may” depicts a discretion also. This should be exercised with caution. It is the opinion of this Court that the Honourable Attorney General of the Federation should first obtain an order of Court in all circumstances before blocking or freezing or confiscating such funds or assets pending the conclusion of an investigation or legal action. The application may be made Ex-parte and if the Court is satisfied by the averments or information contained in the application, the order may be granted. It is however recommended that an order of court in that regard include an order for Report of investigation on subsequent dates. Where the court is of the opinion that the party to be affected by the order be put on Notice, the Court will make that determination. This will circumvent allegation of breach of fair hearing.”

On whether the Executive Order violates the right to Property the Court held:

“This court is of the view that the citizens’ right under Section 43 of the Constitution, to acquire and own immovable property anywhere in Nigeria is not violated. This is especially because…right is not absolute…What the President has demonstrated by the Executive Order in question is his willingness to protect the dissipation of assets and funds connected with Corruption or Other Relevant Offences until the final determination of any corruption related matter against a person concerned. The taking of possession in this instance must be temporary until a final determination is made. This temporary measure has in no way abrogated the right of any aggrieved party to seek redress before a court of law.  Section 3 of the Order, empowers any person who alleges that his right has been, is being or likely to be contravened by any of the provisions of the Executive Order in question may apply to court for redress… The Presidential Executive Order No.6 of 2018 on the Preservation of Suspicious Assets Connected with Corruption and Other Relevant Offences is not unconstitutional”

On the remedies available to persons affected by the Order the Court noted that:

“An aggrieved person may approach the court under Section 3 of the Order or under the general provisions of the law to seek a de-listing of his property or to assert his right to his property which may be under a legal disability by virtue the Executive Order… The Rule of law and safe guards for protection of fundamental Human Rights should be given paramount importance in the execution of this Order

IN CONCLUSION

On the Authority of the Barr Ikenga Imo v. President, it is conclusive to say, until otherwise decided, that Executive Order No. 6 of 2018 is Constitutional and effective for operation and implementation in Nigeria. Whether the obiter of the Learned Judge that the Attorney General requires a prior judicial nod from a competent court before proceeding to exercise the powers will be interpreted into the Order will be a matter to be tested in the days to come.

Oliver Omoredia writes For TheNigerialawyer

Click here to download the  Judgement in PDF format]]>