By Stanley Maduabuchi Ofoegbu Esq.
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It is now a settled law that a particular section of the Constitution should not be interpreted in isolation with other provisions of the Law. In other words, the Law should be read holistically to arrive at a proper interpretation devoid of absurdities see Elelu-Habeeb v A.G.F (2012) 13 NWLR (PT) 1318. It is also the law that where a particular method for doing an act is prescribed, no other method is permitted outside what the law had prescribed see OGUALAJI V A.G RIVERS STATE (1997) 6 NWLR (PT 508) 209 SC. What then is the implication when there is no prescribed method or where there is a lacuna for doing or managing an act? The law is not a one-way traffic, it is subject to exceptions depending on the circumstances and hence, the beauty of the law is not only on the blanket reading of it as expressly written but on the exceptions of its applicability in line with the circumstances. The law is also firmly settled that where there is a legal right, there is also a legal remedy see NBC PLC V ADEMELI (2015 LPELR- 41851 (CA). The onerous duty of the bench is not one devoid of challenges. A proactive judge who is committed to the judicial oath of his office will always be seen as an endangered species. He will most likely be called names including but not limited to names such as “hatchet man” among others by the never do well citizens. Instead of commending such judges, frivolous petitions are being sent to NJC for consideration. The law is that a court will not be properly empowered to look int a matter when necessary and proper parties are not placed before it. In other words, the case will not be properly determined in the absence of such a party and hence, courts are enjoined to ensure that parties before the court are necessary to avoid wasting precious judicial time. But then who is a necessary party that must be joined in a matter? The Supreme court in APC V PDP AND ORS (2015) LPELR- 24587 (SC) described a necessary party as one not only interested in the dispute but that party such that the matter cannot be decided fairly in his absence. This is the present agitation of the National Assembly over the voiding of section 84 (12) of the Electoral Act 2022. What about the order directing the A.G.F to delete the said voided section? Is it outside the powers of the A.G.F as claimed by many? The powers of the Economic and financial crime commission are spelt out in the establishment Act. Does it include the powers to seal off a property belonging to a suspect while investigation is still on? What about the occupants of the said property, do they have any remedy in law? These and more constitutes the legal mixture in this write up.
The legal doctrine of law and equity are interwoven. Most often, they are intertwined to achieve a single purpose. The divide between law and equity may not easily be explained as a good law is measured by its ability to achieve justice which is also the hall mark of equity and hence, equity follows the law and he who comes to equity must come with a clean hands and conscience too see JACK V A.G. AND COMMISSIONER FOR JUSTICE, RIVERS STATE AND ORS (2013) LPELR- 22867 (CA). It is no longer news that the judgment of the Federal high Court wherein Engineer Dave Umahi and his deputy were removed have been generating a lot of mixed feelings. While many including legal experts, faulted the judgment of the court on the ground that the said decision was reached per incuriam having not been anchored on an express provision of the Constitution, others are of the view that the judgment accords with morality and doctrines of democracy. No doubt, the 1999 Constitution as amended in section 68 (1) expressly prohibits cross carpeting by legislators, there is no corresponding section for elected Governors. In fact, section 308 of the Constitution of Nigeria is a direct shield to governors and their deputy from direct criminal and civil prosecution while still occupying the said office this however, does not mean that an elected governor who was elected via the platform of a political party can validly decamp at his own will to another party that played no role in his election. The said section is not an express ticket for illegality and not above limitations. The section as it is, must be admitted to limitations and one of the limitations as the court rightly found is to whether the damage and wrong can be corrected after the occupants of the said office must have exhausted their tenure. Where remedy cannot be preferred after the tenure of the occupants, the veil of immunity must be lifted to achieve justice for the aim of the law is not to preserve and enthrone injustice and it is the duty of the court to subject all laws to possible limitations in other to achieve Justice irrespective of whether it is contained in a blank and white paper. Hence, the case of Dave Umahi and his deputy being sued personally, is not such that can wait after their tenure as irreparable damage would have been occasioned. This is an exception to the doctrine of immunity clause. No doubt, the principle of law that the express mentioning of a particular thing means the exclusion of other things not mentioned. This principle of law is subject to other principles especially, when the matter is constitutional in nature. Thus, as the apex court said in Habib v A.G.F supra, the constitution has to be read holistically and not in isolation of other sections. One of the duties of a political party is to canvass and sponsor elections of their candidates. A party who was elected under a political platform, cannot after being declared the winner of the election, transmits the votes to another party who had no business with his success. Such practice is against the doctrines of equity. It amounts to robbing peter to pay Paul. It is legally and morally wrong. Such practices are nothing but political harlotry and the court has consistently condemned same see FEDERAL ELECTORAL COMMISSION V GONI (1983) 2 SCNLR 227 in the words of Aniaologu JSC. No doubt, the apex court in AGF V ATIKU ABUBAKAR (2007) 20 WRN held inter alia that the seat of the vice president cannot be declared vacant by mere defecting to another party, the court did not endorse the said defection and the matter before the court, was not on the validity of votes scored during the election and whether same can be transferred to another political party. All votes casted in an election remains the property of the party and it is the party that is being voted for and not the individual and hence, the individual even though might go a long way as the flagbearer to help the party garner votes, cannot transfer same to another party see APC CONGRESS V MARAFA, 24/05/2019 SC where the supreme court nullified all votes casted for APC as being wasted on the ground that the party failed to conduct proper primary elections. One would have expected the court to severe the votes from the party and attach same to the candidates if truly it was the candidates that bears the votes instead of the political party. The above reasoning of the court is in line with the decision of the court in AMAECHI V INEC AND ORS (2008) LCN/ 3642 SC same which has not been over ruled by the same Supreme court. Accordingly, the case of Atiku is not a precedent fitting for the case involving the removal of Dave Umahi and his deputy. Besides, what is even the argument on the other side? Only this, that no case has been found which it has been done before and no express provision in the Constitution providing same. That argument to me is highly misplaced. Where there is a lacuna in the Constitution as in the instant case, the court is enjoined to invoke the principles of equity to fill the gap and do justice to the situation until there is a contrary provision to that effect by way of statute or amendment of the current law. In addition, and in the words of LORD DENNING MR in Parker v parker (1954) p.15 at 22
“if we never do anything which has not been done before, we shall never get anywhere. The law will stand whilst the rest of the world goes on and that will be bad for both”
The removal of Dave Umahi and his deputy followed the doctrines of equity in the absence of a clear and express provision of the law. The said removal is valid and proper. My Lord Honourable Justice Ekwo should be commended for displaying courageous feet.
The Economic and Financial Crime Commission Act, is the parent law establishing the commission. The said Act also stream lined her modus operandi including the powers of the commission. Particularly, section 6 and 7 of the Economic and Financial crime Commission Act known as EFCC Act 2004. The said sections no doubt, confers wide powers to the commission in prosecution of economic crimes. However, the powers of the commission are not without limitations and guidelines. Over the years, the attitude of the commission sealing and taking over real properties belonging to suspects have become worrisome. Unfortunately, it is now seen as a normal as no objection to the said practice has ever seen the light of the court. Aside processes challenging the commission for freezing bank accounts without obtaining an order of court, it does appear that suspects and citizen are cool with the attitude of the commission in sealing off people’s property while investigation is on ongoing and asking occupants of those property to vacate forthwith. Unfortunately, this practice of the commission is not supported by any law. In other words, it is against the clear provisions of the Act that established the commission. The powers of the commission to seize and or seal of any property while investigation is ongoing, is captured in section 26 of the Act which provide thus;
(1) Any property subject to forfeiture under this Act may be seized by the commission in the following circumstances-
(a) the seizure is incidental to an arrest or search; or
(b) in the case of property liable to forfeiture upon process issued by the court following an application made by the commission in accordance with the prescribed rules.
(2) whenever property is seized under any of the provisions of this Act, the commission may-
(a) place the property under seal; or
(b) remove the property to a place designated by the commission.
(3) properties taken or detained under this section shall be deemed to be in custody of the commission, subject only to an order of a court.
Flowing from the above section of the law, where any building is intended to be forfeited to the government, processes must be filed in court to obtain an order of court before same can be taken over by the commission. In other words, the commission can only seal off properties after obtaining an order of court. By that, any interested person can join the suit to ventilate his or her grievances this is the purport of section 26 (3) of the Act and hence, EFCC has no powers to seal off any building without an order of court in the same way they cannot freeze a bank account without an order of court. While this is the law, it is unfortunate that many are ignorant of this and hence, the hue and cry of many.
Any remedy?
Where EFCC seals off a building without obtaining an order of court, occupants including the owner of such building all have a cause of action to challenge same and have such order vacated with damages against the commission. This they can do by approaching a legal expert for processes to be issued. By that, adequate time may be made available for them to either remain on the property or vacate same following the directives of the court.
Secondly, where at the end of investigation and prosecution, the commission is able to prove its case and the property is forfeited to federal government, occupants of that property or any person with interest over the said property has a cause of action against the owner of the property for refund of the unexpended money or interest over the said property. This is because it is not the duty of tenants to ask question whether the landlord made his money through genuine means unless circumstances are such that by face value, a reasonable man ought to know that the property is or was a product of stolen wealth.
On a different pedestal, it is no longer news that section 84 (12) of the Electoral Act 2022 has been voided by the court. Before then, there have been series of attempt from the executive arm of government to have the said section deleted to no avail. Fortunately for the executive, the judiciary came to their rescue and gave them what appears to be a befitting burial. However, this judgement of the court has generated mixed feelings among legal experts and political analyst across the nation. While many opined that the court was grossly misled, many are also of the view that aside been misled, the court went extreme by ordering the Attorney General of the federation to have that section deleted. According to them, the court has no such powers aside voiding the section without more. The national Assembly on their own, argued that they were necessary parties to the suit that were never joined and hence, the jurisdiction of the court was not properly activated.
How correct are these averments?
Many including the A.G.F have argued that section 84(12) of the Electoral Act 2022 contradicts Constitutional provisions especially, section 66(1) (f),107(1)(f), 137 (1) (f) and 182 (1) of the Constitution of Nigeria as amended. The truth of the matter is that the both sections of the law being referred to all present a different kettle of legal fishes. There is no conflict whatsoever among the sections. While section 66, 107,137 and 182 being referred to in the Constitution is with respect to persons who are employed in the public service of either the federal or state government of Nigeria, section 84 (12) of the Electoral Act is with respect to political appointees and nothing more. The question then is, are political appointees same with persons who are employed in the public service of the federation? Section 318 of the Constitution already listed persons who are employed in the public service of the federation and in the said section, political appointees are missing. Why is it so? The law is firmly settled that an express mentioning of a class means the exclusion of others not mention. Besides, the court has variously held in DADA V ADEYE (2005) 6 NWLR (PT.920) 1 AT 19, ASOGWA V CHUKWU (2003)4NWLR (PT.811)540 among others that political appointees or holders of political office are not public servants under the Constitution of Nigeria. This, left the question “how did the court arrive at this decision despite all the decided authorities”? Does it mean that the attention of the court was not drawn to the principles of judicial precedence? Even if counsel for the claimant deliberately refused to draw the attention of the court to similar decisions, are there no law library in existence where officers of the court including the court itself can conduct research? In this era of technology, it will be fool hardy for anyone to say that relevant authorities were not cited to him or her. Accordingly, it is submitted that section 84 (12) of the Electoral Act 2022 does not offend the above constitutional provisions neither does it amount to any form of discrimination whatsoever.
Another angle where the said decision of the court is running riot in the minds of many is to whether the court can direct the A.G.F to delete the said section of the Electoral Act. The matter is nothing but secondary and academic, it is a storm in a tea cup I must say. The directive issued to the A.G.F to cause same to be deleted is nothing but a consequential relief that was tied to the main relief. The law is that a consequential relief is usually incidental to the main relief and can only be granted upon the success of the main reliefs whether or not it was prayed for see DAHIRU V AHMED AND ORS (2013) LPELR-22843 (CA) among many of such decided cases. Hence, there is nothing absolutely wrong with the directives besides, the A.G.F is the custodian of all laws especially the Constitution and therefore, there is nothing wrong in directing him to have the section deleted. All argument on the directives with respect to its being unconstitutional or wrong is academic and misplaced.
On the argument of the National Assembly not being a party to the suit, members of the National Assembly faulted the decision of the court on the ground that they being a necessary party were not in any way joined in the originating summons. The question that requires a redress here is whether the National Assembly is a necessary and proper party in Constitutional suit with respects to laws made by them which validity is being tested with the Constitution? A necessary party has been described by the court in APC V PDP AND ORS (2015) LPELR-24587 SC as a person who not only interested in the dispute but that person such that the matter cannot be conveniently decided in his absence. No doubt, the National Assembly enacted the Electoral Act 2022. Ordinarily, by virtue of such enactment and their constitutional duties, the need to make them party to the suit is inherent. However, they are to be joined as nominal parties and nothing more the suit being a Constitutional one. The court in Eleelu Habib v A.G.F supra held inter alia that when a suit requires constitutional interpretation, the Attorney General is a necessary party that must be joined being the custodian of the law of the land. The case in discourse, involved only the A.G.F as a sole defendant. Being a constitutional matter, the A.G.F is the proper party to be sued. The national Assembly could only be joined as a nominal party and being a nominal party, there absence is indeed immaterial, inconsequential and of no moment. There is no miscarriage of Justice by virtue of not joining the National Assembly especially, as the Constitution and the Electoral Act is for every Nigerian and not the National Assembly alone otherwise, all Nigerians should have been made parties to the suit. Hence, once the determination of a case involves a thorough interpretation of the Bible being the Constitution, the said case is constitutional in Nature and all Citizen in Nigeria has locus to institute an action because, it is the right of every citizen to be govern by laws that conforms with the constitution of the land see SAMBO AND ORS V NDATSE AND ORS (2013) LPELR-20857 CA, A.G LAGOS STATE V A G FEDERATION (2004) 18 N.W.L.R (PT.904)1, FAWEHINMI V AKILU AND ANOR (1987) 4 N.W.L.R (PT66) 797 AT 832. At this point, it is submitted that the previous suit instituted in one of the federal high court over this same issue, same which was dismissed, was dismissed in error as any Nigerian can approach the court to challenge any law that runs contrary to Constitutional provisions.
In summary, the argument of the National Assembly with respect of not being a party to the suit that led to the voiding of section 84 (12) of the Electoral Act 2022 is akin to a water fetched in a basket. They can just as every other Nigerian appeal the case as an interested party the case being constitutional in nature. In all, the decision of the court voiding the said section of the Electoral Act was reached in error and liable to be set aside on appeal.
The writer can be reached via 08068515340, 08181689769, ofoegbustanley72@gmail.com
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