Disrobing a SAN: the Aondoakaa’s case

Disrobing a SAN: the Aondoakaa’s case

By Felix Adewumi

Background

A precedent was set when the Legal Practitioners Privileges Committee slammed a two-year ban on Michael Aondoaaka, former Attorney-General of the Federation and Minister of Justice and stripped him of the rank of Senior Advocate of Nigeria (SAN)

Before this, the issue of SAN had generated a lot of controversies for a long time and came into fore front when Pa Tunji Gomez, an Octogenarian called for the abolition of the title at the 2009 annual conference of the Nigerian Bar Association (NBA).

Many believed that the SAN title has been compromised and felt it should be scrapped to give a fair landing to the legal profession while others believed it should be left as it is.

The ban given to Aondoakaa and its implication on the Nigeria legal system brought the issue into fore front again.

SAN as a demigod

The SAN title was borrowed from the British where they have the Queen’s Counsel (QC). This started when Nigeria legal system felt the need to create the equivalent of QC and came out with Senior Advocate of Nigeria (SAN).

It is the highest title that legal practitioner could have, it is most celebrated and have certain advantages, they wear silk gown, sit in the front row in court and have their cases heard first.

This honour was even sometimes accorded to them by the judge as some of the judges were sometimes accused of swaying judgement to the sides of the SAN handling the matter.

The SAN title is so revered that some lawyers with the SAN title now see it as an equal footing with the power that be. It is not uncommon to see a Senior Advocate coming to court with an array of about 13 young lawyers all following him from behind and carrying over 100 giant law books, constitutions, law reports and rules just to show their status.

It is also not uncommon to see a senior advocate stand up before a judge and say, “My Lord, I don’t have much time here since I have other cases to handle so I ask for adjournment” and despite the protest of the other lawyer who is not a SAN, the judge will go ahead and grant the adjournment to the convenience of the SAN.

It will also be foolhardy for a younger lawyer to try and ask for adjournment when the Senior Advocate is ready to go on in any matter.

This discrepancy had been one of the factors responsible for the call for the abolition of the silk title with younger lawyers feeling they ought to be given the same privileges as the senior advocates.

Professor Akin Oyebode, former vice chancellor of the University of Ado Ekiti and a lecturer of the University of Lagos felt SAN has become like a family inheritance and the younger people are not very happy with it.

“You now need a godfather to be a SAN and many of the people being given the title did not command the respect of their peers. Look at somebody like Gani, it became almost too late before they decide to honour him with the title, look at Femi Falana, how can you mention 10 names in the legal profession today and omit Femi Falana? then that list is not complete. And the people are watching” he said

He pointed out that Nigeria must be extremely circumspect in giving the highest title to people, because the title will lose its lustre and prestige if they start giving it to just any person.

Moreover, Chief Abiodun Dabiri, former Chairman, Lagos branch of the Nigerian Bar Association and member, National Executive Council (NEC) and the National Disciplinary Committee of the NBA, said lots of people are going for this title not because they are competent or qualified or they want to improve the image of the profession or they want to develop the law or whatever it is but because they are going there for pecuniary reasons

“They are thinking that if I become a SAN, I will be getting money, people will be calling me SAN and then when a case comes, I will charge them N10 million, that is what they are going there for.

Abusing the SAN title: between Bayo Ojo and Aondoakaa

Adding the position of the attorney general of the federation to the title of a SAN may actually give a personality to position of a demigod going by happenings in the legal system since the advent of democracy in Nigeria.

Chief Bayo Ojo, a senior advocate and a former attorney of the federation during the Olusegun Obasanjo regime as the president certainly escape the watching eye of Nigerians with the way he used his two positions to influence events during his time.

Ojo infamously ordered a status quo to remain despite a court order which has removed Alao Akala as governor of Oyo State and installed Ladoja. He used his position as a senior advocate and minister of Justice and his order was obeyed.

He was also instrumental to the Anambra case and some other cases where after a court judgement, he try to dare the judgement by issuing a statement saying the Federal government is still studying the judgement.

When Aondoakaa came on board at the Yar’Adua regime, he started playing the role left behind by Chief Ojo.

Mr Aondoakaa was better known as an attorney for corrupt ex-Governor and found himself in the exalted position of both the Minister of Justice and the Attorney General of Nigeria.

Since assuming the office as the number one law officer for Nigeria, he has systematically under the guise of upholding the rule of law, dismantled the little gain Nigeria has made in the effort to control corruption in public places.

He has sought to weaken the hands of progressive institution in Nigeria like the EFCC, by threatening to take over or discontinue cases initiated by other agencies that he deems against the rule of law.

From the beginning, Aondoakaa did not hide his ambition to severely clip the wings of EFCC and Nuhu Ribadu, its then chairman.

His move started barely a month after his appointment in July 2007, when he submitted a memo to the President requesting “that all agencies involved in the prosecution of criminal offences such as the EFCC and ICPC should report and initiate criminal proceedings with the consent and approval of the Attorney-General of the Federation as specified in relevant sections of the Constitution.”

He started making use of his office when Ribadu made move to prosecute James Ibori, former Governor of Delta State, reputed to be a close friend of Aondoakaa, and the person who actually recommended him to President Yar’Adua for the position of Attorney General.

In February 2009, only weeks after Ribadu was dismissed from the Nigeria Police Force, Aondoakaa filed charges against him, before the Code of Conduct tribunal, alleging that he did not declare his assets upon assumption of duties as EFCC chief, as required by law.

Consequences

Following the removal of Aondoakaa from his position ans his subsequent sack by President Goodluck Jonathan, it all seems that the law of nemesis was ready to catch up with him,

A Federal High Court sitting in Calabar, Cross River State, had in early June, restrained Aondoakaa from holding the office of the AGF or any other similar public offices in the future in Nigeria.

It had, therefore, advised the government to always consider Aondoakaa unfit and incompetent to hold public offices because of his conduct while serving as AGF.

Justice Adetokunbo Ademola, who delivered the judgment, had also referred the ex-minister to the Nigerian Bar Association for appropriate disciplinary action.

The judgment was on a suit filed against Aondoakaa by the Peoples Democratic Party candidate for Uyo Federal Constituency, Akwa Ibom State, Mr. Emmanuel Obot.

Besidres, the United States Government on July 1, 2010 confirmed that it had barred Aondoakaa, from entering its territory.

The US Embassy in Abuja, through one of its top officials, confirmed that the former AGF and his family had indeed been barred from entering the United States.

Reading from a prepared text on the telephone, the diplomat said, "The United States has indeed revoked the visa of the former attorney-general of the federation and minister of justice, Mr. Michael Aondoakaa, pursuant to Presidential Proclamation 7750, which provides authority to deny entry to the United States to persons with links to corruption."

the judgment of the Federal High Court, and the declaration of his person as persona non grata for offences relating to corruption and the consequent revocation of his entry visa by the American Government earlier in the year was a factor leading to the suspension of his Silk title for two years.

Reactions

Barely days after the suspension, the Nigeria Bar Association (NBA) kicked against the suspension saying it did not follow due process and it was done by the wrong body.

Whgile calling for the reversal of the decision, NBA in a statement signed by Joseph Daudu its president, said the statutory body responsible for such disciplinary measures is the Legal Practitioners Disciplinary Committee (LPDC) and not the Legal Practitioners Privileges Committee (LPPC), which issued the suspension.

On the argument that the privileges committee possess powers to remove its appointees from office, just as it is empowered to appoint, the NBA stated that the Legal Practitioners Act, under the maxim Generalia Specialibus non derogant, displaces ‘the general' as it "does not envisage a withdrawal, removal or suspension of the rank of Senior Advocate of Nigeria" citing Section 5-(1)-(8) and 6 of the Legal Practitioners Act.

The association stated that the rank of SAN is a leadership position, conferred only on persons who have shown exemplary character and, consequently it can only be taken away where another statutory body, the Legal Practitioners Disciplinary Committee, adjudges the person accused of infamous conduct or breach of any of the rules of professional conduct.

The NBA president said the LPPC, notwithstanding its eminent membership, "cannot and is not equipped to deal with matters of discipline."

He added that the LPPC's foray into "looking at matters of the discipline of a lawyer under the guise of suspending a person of the rank of SAN is ultra vires, illegal, unconstitutional and therefore null and void."

"We stand for the promotion of the Rule of Law and regardless of the personality of the person involved herein, we cannot acquiesce to a situation where a person, legal practitioner and senior advocate is punished even before the allegations are established against him, moreso by a body that clearly has no jurisdiction to inquire into matters of alleged breach of professional ethics," the NBA president said.

Corroborating the views of NBA, Chief Dabiri said the Privileges Committee has no right to suspend Aondoakaa.

Though Dabiri accepted that Aondoaaka’s antics are disgraceful but as far as the law is concerned, the committee have no power to do it.

According to him, it is only the Disciplinary Committee that can do that, if the Disciplinary Committee feels that his name should be struck out of the register and that is the end of his title.

“I know that Aondoaaka disgraced his office as AGF. He wasn’t a law officer at all. He was more of a politician and he carried it a bit too far, too far. At the same time, I am saying the Privileges Committee has no power to withdraw or suspend it” Dabiri said.

Conclusion

While Aondoakaa serve his two year-ban, the issue of the abuse of the SAN title also comes into focus. The call for the abolition of the title is gradually gaining momentum again.

It is important that the process of choosing the title should be looked into with the agitation for a reform in the way and manner that the selection is done.

DSTV Mobile: A promo gone awry

DSTV Mobile: A promo gone awry

By Felix Olukunle Adewumi

When MTN announced that they are coming out with an initiative in partnership with DSTV to bring out mobile edition of cable television, many do not believe it can ever be realistic.

The low cost of the phone with the one year free subscription makes it more suspicious, knowing the way the Nigeria corporate world compete with each other in other to woo more customers.

The fact that super sports 3; the sports channel where most premier league matches are shown is among the channel did not help matters. A lot could not believe that MTN who is notorious for not being able to give out anything free to its consumers since its invention.

In fact many believe that most of the promos of the telecommunication giants in Nigeria is a way of giving to people with one hand and taking it back with the hand.

The eye-catching area of the DSTV Mobile edition was the fact that they made available mouth-watering channels like Super Sports 3, Super Sports 9, Super Sport Blitz, Africa Magic, Magic World, Big Brother Africa, Channel O and CNN among others as part of the 11 channels available in the mobile edition.

After overcoming the initial sceptic about the mobile edition, trust Nigerian, they quickly rush to purchase the phone even as the 2010 World Cup approach but with the prospect of HiTV still having the majority right of the England Premier League, there was no way MTN could market the mobile edition for the premiership.

However, luck shone on the partnership between the duo when HiTV suddenly developed cold feet and decide not to continue its coverage rights thus allowing DSTV to take majority rights of the Premier league.

MTN saw this as an opportunity to sell the mobile edition. Adverts were coming out with great intensity and MTN sales girls travel round in an attempt to put the phone into the heart of Nigeria.

There was also a great improvement when MTN lobbied Nokia into the partnership after its first edition of DSTV mobile (Zedge Phone) was not well received by the people.

With the Triumvirate of DSTV phone, Nokia and MTN, the DSTV Mobile was set to be a major initiative and a hit in the Nigeria telecommunication market.

However,after having gained from the rate at which people rushed the DSTV Mobile phone, MTN threw the first joker when they suddenly remove Super Sports 3 from the mobile edition, All efforts to get them explain the rationale behind the removal prove abortive as all they could offer was to replace it with Super Sports 7, a channel which shows only one premiership match weekly.

Not satisfied with the situation, lots of Nigerians threatened to abandon the phone since most people buy the phone for the lure of watching premiership matches.

Shola Oluferanmi, a student of Unilag who is a die-hard premiership fan could not hide his disappointment at what he described as the deceit being given to unsuspecting Nigerians by the corporate bodies just in an attempt to sell their product, stated that he is waiting for the end of the Big Brother Africa Programme being aired in one of the channels to know what to do to his phone.

Oluferanmi was not then surprise when just a few days later, the Big Brother Africa ended and MTN wasted no time in yanking off the channel from the list and replace it with Sound City.

Many wonder why MTN would go to the length of advertising Super Sports 3 to entice subscribers when it knew that it could not offer it to Nigerians.

Samson Oludare, an engineer who have always been sceptical about the ways of the corporate worlds handle their promos in Nigeria had predicted that MTN had a game plan when they came out with the DSTV Mobile.

“I know MTN, they don’t give something out for free and they are a stingy type of network, when they introduced the Mobile edition, I was not fooled because I know they are up to their trick again, so when they started removing the best channels and people started complaining I just laugh within me. How can you expect MTN to give you something like that for free” he said.

A quick survey shows that lots of people are quickly changing phones and dumping the DSTV mobile phone while others who keep the phone are waiting for the end of the one-year free subscription to dump it for a better phone.

“I do not think I will ever make that mistake of buying any thing MTN is trying to sell, I do not believe them and I am not prepared to believe them for anything, they are treacherous. I wonder why our regulatory body allow such act from them” Moses Ugwu, a business man said.

MTN had even find a way of covering their track in their recent adverts for the DSTV mobile edition where the Super Sports 3 and Big Brother was conspicuously omitted and Super Sports 7 with Sound City being included in the list.

Mrs Deborah Ajetumobi, one of the first persons to buy the DSTV mobile at the onset explained how out of her annoyance at the deceit she gave the phone out to her niece as the sight of the phone makes her angry with MTN all the time.

“Can you imagine me buying the phone and getting to watch NTA, Cartoon Network, TBN, Channel O, and Sound City? All those ones I get them on our daily local channels at home, even AIT show better program so why will I watch the one on the phone? Even the number of channel they put on the phone is too small” she fumed.

All efforts to get MTN to talk on the promo prove abortive as most sales point where they are being sold now has stern looking marketers who are never ready to answer any question on the phone.

One wonders the next move the telecommunication giants is planning and what will later become of their partnership once Nigerians have gotten enough of the gimmick, but until then, MTN, Nokia and DSTV can still bask in the euphoria that they are the only partnership that brings DSTV mobile to Nigeria.

Election Annulment and INEC dilemma

Election Annulment and INEC dilemma

By Felix Adewumi

Introduction

When the Court of Appeal annulled the Election of Olagunsoye Oyinlola of Osun State and installed Rauf Aregbesola as the governor, there were jubilations in every corner where progressives are and people who believed that they were robbed of the victory in the first place.

However the annulment had once again constituted another dilemma for the Independent National Electoral Commission (INEC) as it added Osun state to the list of headache the electoral body is expected to deal with.

When the tribunal started, what was unknown was the ability of the tribunals to arrive at a result and clear the air of all the illegality and irregularities that the election had brought, little did anybody know that the judiciary is set with a surprise for the nations when they began to correct the errors of the election.

A fact is becoming obvious from the spate of election annulment in some states in Nigeria, INEC has a difficult task ahead of them as they tends to balance the various elections times table in Nigeria starting from the Anambra State election.

States like Anambra State, Edo State, Delta State, Ekiti State, Ondo State Osun State and Rivers State may not participate in the 2011 gubernatorial elections as the annulments of election in those states brings out the possibility of the new governors’ term starting from the date of annulment.

Correcting INEC anomalies

Perhaps, one of the most interesting things in the judiciary was the role of the tribunal in correcting most of the election woes. About two months after the tribunal commenced sitting, the expected results starts coming in.

Governor Ibrahim Idris of Kogi State received the knock when the Kogi State tribunal nullified his election and ordered that a fresh election be conducted in the state. Before Idris could recover from the shock of the election, the axe also fell on the Murtala Nyako, governor of Adamawa, Amodu Sheriff, governor of Bornu state and Ibrahim Dankingari, governor of Kebbi state.

However, Idris and other governors saved INEC blush as they won the re-run elections in their states.

Though some might query the decisions of the tribunals and chose to challenge it, just as Kebbi State governor did and won at the court of appeal, yet the judiciary should be commended for their unflinching stance.

Other elections were also nullified, some senators lose their seat with the outcome of the tribunal, house of representative members as well as house of assembly members also lost out.

Dateline – Anambra election

The INEC election drama started Anambra state during the Chris Ngige saga when after a series of power play, the Court of Appeal suddenly dismissed the election of Ngige and ordered that Peter Obi of the All People’s Grand Alliance be sworn in governor after Ngige had already spent three years in office.

Dr. Ngige’s last minute effort of appealing against the decision of the tribunal could not produce the desired result.

However problem started when INEC made an attempt to conducted an election in the state overlooking the tenure complicity the annulment of the election had caused, this made Obi not to seek election but rather head to the court to seek interpretation of his terms of office.

However, while the case was in court, INEC gambled with election in the state and Andy Uba, a Peoples’ Democratic Party (PDP) candidate won the election and was sworn in while Obi battle on in the court.

After series of arguments at the court which extended as far as the Supreme Court, the Supreme Court judgement returned Peter Obi as Governor of Anambra, thereby displacing Uba.

That Peter Obi’s judgement became a landmark judgement in which other states lean upon when they win the tribunal judgement in their state.

Rivers imbroglio

INEC shot itself in the foot when it disqualified Rotimi Amaechi from contesting in the 2007 gubernatorial election in Rivers state. An election in which Celestine Omehia later won

The disqualification of Amaechi by INEC was something that called for legal interpretation. Amaechi fought it out from the lower court to the Supreme Court, he never relented until he got his victory when the Supreme Court ordered that he should be sworn in as the governor of Rivers

Though Amaechi was defeated at the lower court, he still had the faith in the judiciary in arriving at a logical conclusion.

The Rivers State decision was a real embarrassment to INEC as it even more discredit as a body capable of overseeing any election in the country

Edo and Ondo palaver

After a lull in the tribunal following the Amaechi and Obi’s landmark case, INEC was put under the hammer once more when the Court of Appeal upturned the election Professor Osaremen Osunbor of Edo state and ordered that Comrade Adams Oshiomole be sworn in.

Ondo state was a beneficiary of such judgment after the Court of Appeal in 2009 also sacked Olusegun Agagu and replaced him with Olusegun Mimiko who was said to have won the election in the first place.

The direct order of the Court of Appeal was a hard knock on INEC and the face saving talk of Professor Maurice Iwu, the then INEC chairman could not salvage the truth that INEC face a daunting task in telling Nigerians that it is ready for the task ahead.

Saving INEC blush in Ekiti state

A major event in the 2009 election petition tribunal was the upturning of the election of Olusegun Oni of Ekiti State where the Election tribunal ordered a rerun of election in the state.

Although, Oni defeated Kayode Fayemi in the rerun which was marred with violence and massive protest, the judiciary could not be blamed for ordering a rerun in the state but it only point to the fact that the role of the judiciary is not finished in the state.

Out of desperation to justify the fact that Oni won the election, Mrs Adebayo Ayoka, the resident Electoral commission chairman in the state, suddenly played out a well rehearsed drama after initially failing to announce the election result and later backtracked and announcing a result where Oni was said to have taken most votes in a local government to complete his result and thereby winning the rerun.

Fayemi once more took the matter up at a newly constituted election tribunal to determine and just recently, the court of appeal finally sacked Oni and replaced him with Fayemi thus Fayemi started a fresh 4-year term.

The Ekiti tribunal also played is role when it upturned the election of Senator Femi Kila after it was discovered that he was not validly elected and also ordered a rerun in the election of Senator Ayo Arise who eventually won the rerun.

Osun Debacle

Just six months to the end of the tenure of Olagunsoye Oyinlola of Osun State, the Court of Appeal only recently annulled his election and ordered that Aregbesola be sworn in as governor.

This has once more renewed the call for a review of the judicial system so as to help INEC in coming elections

Mr Wahab Shittu, a Lagos Lawyer stated that justice delayed is justice denied, the long period this is taking before justice is gotten in Nigeria is an indictment on the justice system. This should not be allowed to continue.

Shittu also reiterated the call that for reform of the justice system stating that the judiciary ought to be tinkered upon so that future cases can be decided upon in time.

Echoing the call of Shittu, Mr Ebun Adegboruwa, a Lagos lawyer stated that the judgment itself constitutes an embarrassment to the legal profession, the judiciary and Nigeria as a whole as it shows how slow the judiciary is.

Adegboruwa also expressed his displeasure over the fact that the judgement was coming just days after the times table for the 2011 elections have already been released and contestants have already been warming up for the election.

“It is so heartrending to note that judgement is coming after the time table for the coming election has been released and contestants are already emerging. The court of law should be reformed to ensure that petitions are heard in time” he said .

Jega’s Herculean Task

Professor Attahiru Jega, the INEC chairman was appointed with a burden of responsibility; to correct most anomalies of his predecessor as well as give INEC a new image.

Right now, Nigerians cannot trust INEC on election matters even after watching the way Jega has at various time changed the 2011 election timetable as well as even try to change the election date.

Already INEC are getting ready for the election period but it is not forgetting the fact that election might be conducted every year and every months after 2011 following the several annulments that have taken place in the states, national assemblies, State Assemblies and local government seats if issue of tenure is to be taken into consideration.

A local government chairman who was recently sworn in after the tribunal ordered that he was the winner of the 2008 local government election was said to have pointed out that he is starting a fresh term.

These and others are the dilemma faced by INEC coupled with the fact that the whole world is watching out for a free and fair election in 2011.

Osun Election: Justice with a high price tag

Osun Election: Justice with a high price tag

By Felix Adewumi

Background

Three and half years after the April 14, 2007 gubernatorial election in Osun State and two years after a telephone conversation scandal rocked the judiciary in Nigeria, Engineer Rauf Aregbesola was finally declared winner of the election.

However, for Aregbesola, justice came with a high price tag as he was made to go through lots of hassle and embarrassment on the road to victory.

Osun election petition tribunal was the most interesting tribunal of the 2007 election with interesting stories coming out of the state.

Osun Drama

In 2008, About a year after the first election tribunal was constituted, the first drama broke out in the state when The News newspapers revealed an illegal telephone conversation between Chief Kunle Kalejaye (SAN), counsel to erstwhile governor Olagunsoye Oyinlola and Justice Joe Ekanem, the tribunal chairman.

This conversation was said to be purportedly conducted to pervert the course of justice and while urging the Economic and Financial Crime Commission (EFCC) to investigate all SMS, voice messages and other related communications data in order to determine the level of complicity, the Action Congress (AC) alleged that the communication compromised the integrity of the tribunal members.

However, in a twist of event, in 2009 Aregbesola suddenly found himself in trouble with the police after he was alleged to have forged a police report for the election tribunal. He was subsequently arrested and arraigned before a High Court in Abuja.

While it took the EFCC several years to investigate and prosecute those involved in the alleged telephone conversation in Osun State, the Nigerian Police were very ‘effective’ in investigating and bringing a forgery case against Aregbesola.

In the charge, Aregbesola and one Yinka Okedara, a lawyer were said to have forged a police letter head paper for the security report on the 2007 election in Osun State contrary to section 364 of the penal code and tendered it before the court of Appeal in Ibadan.

Road to Victory

While the battle for the soul of Osun raged on between the PDP and AC, drama started in Osun State when Aregbesola filed a 1004 page petition contending that the Independent National Electoral Commission (INEC) and the police colluded with the Peoples’ Democratic Party (PDP) to rig the election in favour of Olagunsoye Oyinlola.

However, Aregbesola’s petition included forensic analysis of the ballot papers used for the election to prove that the poll in 10 councils did not follow the electoral law thus setting the stage for the use of science to prove election rigging.

However, in February, 2008, the electoral petition rejected the forensic evidence and on July 15, 2008 dismissed the AC candidate petition entirely, but in March 2009, the Court of Appeal in Ibadan upturned the decision of the tribunal and ordered a retrial of the petition at election petition tribunal.

Howbeit, in May 2010, a newly constituted election tribunal in the State again dismissed the petition of Aregbesola for lacking merit,

Not undaunted with the force against him coupled with the criminal charge levelled against him, Aregbesola headed to the Court of Appeal in Ibadan to appeal the judgement thus the stage became set for a final showdown at the appellate court as the judgement was expected to bring an end to the unending legal tussle for the soul of the state.

However, with results coming from Ekiti state election, Delta State election and the Ondo State of 2009, there was cause for anxiety that the Court of Appeal was apparently set to correct most wrongs of the 2007 election.

Reactions and Mix feelings

Mr Wahab Shittu, a Lagos lawyer while commending the decisions of the appellate court declared Aregbesola’s victory as a victory over perseverance and patience.

Shittu however lamented the fact that it took the judiciary three and half years to correct the anomalies.

“We all know that justice delayed is justice denied, the long period this is taking before justice is gotten in Nigeria is an indictment on the justice system. This should not be allowed to continue” Shittu said.

Shittu also reiterated the call that for reform of the justice system stating that the judiciary ought to be tinkered upon so that future cases can be decided upon in time.

Echoing the call of Shittu, Mr Ebun Adegboruwa, a Lagos lawyer stated that the judgment itself constitutes an embarrassment to the legal profession, the judiciary and Nigeria as a whole as it shows how slow the judiciary is.

Adegboruwa also expressed his displeasure over the fact that the judgement was coming just days after the times table for the 2011 elections have already been released and contestants have already been warming up for the election.

“It is so heartrending to note that judgement is coming after the time table for the coming election has been released and contestants are already emerging. The court of law should be reformed to ensure that petitions are heard in time” he said

While saluting the courage of the AC and all progressive politicians, he urged them to make to the most of it and show shy the electorate put their faith in them.

In the same vein Mr Adeshina Ogunlana, a lawyer and publisher of The Squib, a weekly watchdog of the judiciary, noted that the judgement shows that truth will always prevail over deceit.

Ogunlana was also of the view that election fraudster should be made to face the music and the court of law so as to serve as deterrent to others.

He called for the authorities to ensure that election riggers are arrested and tried before a court of law since it is obvious that a large number of politicians rigged their ways into power.

“This is one thing we should look into, riggers should not be allowed to just go free, Oyinlola and Segun Oni spent three and half years in their state, and they expect us to just overlook that, that should not be allowed at all if we really want progress in the country.

A fact is becoming obvious from the spate of election annulment in some states in Nigeria: INEC has a difficult task ahead of them as they tends to balance the various elections times table in Nigeria starting from the Anambra State election.

States like Anambra State, Edo State, Delta State, Ekiti State, Ondo State Osun State and Rivers State may not participate in the 2011 gubernatorial elections as the annulments of election in those states brings out the possibility of the new governors’ term starting from the date of annulment.

Conclusion

It took Aregbesola three and half years to win the soul of Osun State, just six months before the next gubernatorial election. As pointed out by Adegboruwa, other aspirants for the 2011 elections have no other option to wait for the next four years while Aregbesola run his term.

However, it remains to be seen how INEC will handle the scattered electoral timetable in the country and ensure a free and fair election in 2011

Delay in EFCC trials: Who is to blame?

Delay in EFCC trials: Who is to blame?

By Felix Adewumi

Background

To some public office holders, the fear of the Economic and Financial Crimes Commission (EFCC) is the beginning of wisdom. This has been the case when former President Olusegun Obasanjo saddled Mr Nuhu Ribadu with the EFCC duty.

The uproar that followed the arrest and subsequent arraignment of former Inspector general of Police, Mr Tafa Balogun after Ribadu brought him to the court in handcuff showed the resolve of the anti graft commission to track down corrupt public office holder.

Perhaps more interesting was the rate at which the anti graft commission clampdown on some former governors where Dr Ayo Fayose of Ekiti, Chimaroke Nnamani, (Enugu), Orji Kalu (Abia), Rashidi Ladoja (Oyo), Chief Lucky Igbinedion and Joshua Dariye (Plateau) were all arraigned.

However, following the removal of Ribadu as the EFCC boss and the subsequent replacement of his position with Mrs Farida Waziri, the commission experience little lull in which the commission concentrated on the arraignment and subsequent sentencing of Chief Olabode George, a PDP chieftain while the Femi Fani Kayode suit drag on to the Court of Appeal.

EFCC finally had another field day when they were made to arrest and arraign some bank chiefs affected by the Sanusi’s restructuring exercise.

With this renewed sense of responsibility, the commission started a manhunt for some of the bank chiefs, while some surrendered (Cecelia Ibru, Francis Atuche, Charles Ojo and others); Erastus Akingbola of Intercontinental Bank took to his heel only to later surrender himself to EFCC 11 months after.

Convictions and recovery

Since the emergence of Mrs. Farida Waziri as EFCC chairman, in addition to the high profile cases she inherited from her predecessor. Ribadu, her commission has recorded reasonable success in high profile arrests of top politicians, captains of industries, Directors-General of federal institutions. Her only constrain is that there has not been any tangible conviction to show for it due to manipulations and frustration of the cases by those arraigned when they are granted bail.

At a media chat once, Mr Femi Babafemi, EFCC spokesman pointed out that about 25 persons have so far been convicted just within the short duration of Waziri’s stay in office and not less than N3 billion naira had been recovered by the commission.

The EFCC spokesman pointed out that some high public office holders like Senator Iyabo Obasanjo-Bello, Chief Kenny martins, Bode George, Femi Fani-Kayode, Chief Bablola Aborishade and other members of the Petroleum Equipment Foundation who are considered as untouchables, had been charged for corrupt enrichment by the commission.

According to the EFCC spokesman, Mr. Femi Babafemi, not only has the trial of some governors continued in the courts, the recent arraignment of former governors, Michael Boatmang and Boni Haruna, was a clear testimony that the bar of the anti-corruption has been raised.

However, with the celebrity status of these arrests and arraignment of these men and women of power for corruption and money laundering by the EFCC, the fears that there is the possibility of manipulations and frustration of their trials and the subsequent long court adjournments, many Nigerians are wondering if this is not the end of the some of those cases.

The fears of these Nigerians have their roots in the country’s recent history, before the end of the last administration, several EFCC and ICPC reports had indicted a number of ex-governors. The amount of funds the EFCC traced to the former governors was mind-blowing. In 2006, the commission claimed to have recovered more than $5billion.

Apart from stealing from monthly allocations, some of the governors reportedly compounded their states’ financial crises by taking questionable loans from banks.

But over two years after some of these former governors were charged to court by the anti-graft agency and granted bail by the courts, they still walk the streets freely and travel abroad unencumbered and given their clout, they have the capacity to manipulate and frustrate their trials.

To this end, these Nigerians are worried that the bail granted the bank chiefs may have spelled doom for the case. They also wonder if the Justice Dan Abutu-led Federal High Court and the EFCC will record any tangible conviction from the charges preferred against them.

EFCC as a cog in the wheel of the trial?

Perhaps one very important facts is that EFCC had not also helped matter in some of those cases as they tends to bring about the delay thus allowing the matter to delay unnecessarily

A clear example was the Fani- Kayode’s matter which the EFCC once celebrated. No sooner as Fani –Kayode got his bail, that EFCC sought to tender computer printouts of statements of accounts belonging to the former minister to prove that the former minister committed financial crimes.

This moved was opposed by Fani-Kayode’s lawyer arguing that computer printouts are not admissible in evidence and Justice Ramat Mohammed, the presiding judge ruled that the computer printout is not admissible in evidence.

However, not satisfied with the ruling of the Federal High Court, the EFCC appealed and in June 2009, Justice Ramat adjourned the N230 million money laundering trial involving Fani-Kayode indefinitely to allow for the determination of the appeal.

After almost a year, the Appellate Court overturned the decision of the lower court and upheld the appeal of the Economic and Financial Crimes Commission, EFCC, by declaring that computer printout is admissible in evidence.

With this decision, everyone thought the coast is now clear for the continuation of the trial of Fani-Kayode, but the decision only gave him another tool to fight with and he headed for the Supreme Court to argue his case, thus the Fani-Kayode matter has spent close to two years without real trial even beginning.

Another situation is the way in which most of the cases are being handled with EFCC made to look like a disjointed group on numerous occasions.

Mr Olalekan Ojo, a Lagos Lawyer passed the buck of the blame on EFCC, according to him, in most cases, like during the trial of Nnamani, Fayose, Fani-Kayode, Bode George and others, EFCC came to court to inform the court that they are not ready to go on either because their witness is not around, their lead counsel is not available, they need to file a reply to an application or they need to file for extension of time.

Ojo, who famously defended Lateef Shofolahan, a former aide to the late Mrs Kudirat Abiola said it will not be correct to blame lawyers and judges in this situation.

“There are situations where adjournments were brought about by the absence of witnesses, I know of a case which suffered adjournment more than eight times due to the absence of just one witness” he said

However, Mr Foluso Fayokun, former Lagos Nigerian Bar Association (NBA) chairman, think lawyers have not really helped matters in this situation

“These days, lawyers are involved in all sorts of tricks. That have not helped the integrity of the legal profession, you find lawyers filing applications that the trials should not go on just to frustrate the suit.

According to him, lawyers file stay of proceedings, application for bail, challenge the charge itself and if they are ruled out, they go to the appellate court.

He pointed out that a lawyer duty is to ensure that his client’s case is resolved as quickly as possible so that it can be determined whether he is guilty or not and if he is guilty he should quickly serve his term and go about with his life.

“But most time what we find is lawyers who try to frustrate the hearing of the matter and that will not serve the best interest of the clients and even the legal profession. It does not give the profession a good name and shows that we don’t really know what we are doing” he said

Referring to Major General Ishaya Bamaiyi’s matter which suffers many adjournments because of the lawyers, Fayokun however faulted the judges for not talking their stands when it comes to treating frivolous applications.

“The judges are supposed to manage their courts and not allow flimsy application. If a lawyer is not willing to go on with his matter, the judge can proceed; there is no rule which says he can’t proceed if a lawyer refused to file his application.

On the part of the EFCC, he said if they are not ready with their case and failed to produce their witnesses or file the necessary papers; the judge should just strike out the matter and tell them to come back when they are ready.

“As far as I am concern it is the duty of the judge to say when they are ready they should bring the accused back. The court should not just be congested with cases, the lawyers should manage their courts in a way that they don’t waste their time on frivolities, if the lawyers want to engage in rigmarole exercises, the judge should not condone it, it is the duty of the judge to make sure that he does not grant unnecessary indulgence” he said

Need for Special Courts on Corruption?

Recently, the EFCC boss had at a public hearing on the Bill to amend the EFCC Act to empower it to refer cases to special courts on corruption, said the delay in the trial of suspects charged for corruption in the law courts was frustrating the operations of the commission.

She advocated the establishment of a special court to try corrupt officials to facilitate the commissions' operations. According to her the slow judicial process in the regular courts was a major challenge to the commission.

According to her in most cases, people are arrested and arraigned before the court only to be released the next day on bail.

“Honestly, we are getting frustrated because the man you picked up looks you in the face and tells you that you are wasting your time” Waziri admitted.

Waziri blamed the slow judicial processes Nigerian courts are known for and the bureaucratic and legalistic bottlenecks of the judicial system of this country for the main reason behind the setback in the quick arraignment and conviction of some of the suspects.

According to her, “the legal process takes quite a lot of money, energy, time, and deployment of personnel to get a single conviction. To speed up prosecution of our cases, the National Assembly should begin the process of creating special courts with the requisite jurisdiction bringing to book, public and private officials involved in corrupt acts", Waziri declared.

She has not failed to tell all that cares to listen that the court is responsible for the delay in the trial of some former governors and other corrupt officials her commission had arraigned.

She had argued that the judiciary was slowing down the anti-graft war, as the rulings and other processes used by the accused persons to escape prosecution gives the impression that the EFCC is not living up to expectation.

“You know very well that their cases are in courts very many of them, about 12 of them. I have been crying out that the cases are being stalled in courts. They get lawyers and pay them heavily. They use the judicial system that is slow by nature to thwart the cases because they first of all challenge the jurisdiction of the high court and then go to the Court of Appeal to ask for stay of execution and then it is neither here nor there”. She said at a recent forum.

According to her, even cases that Ribadu took to court were still there, adding that it was worrisome.

Scoring her commission high, Waziri said, “Those people who do not like my face will say EFCC is not working. I cannot investigate, take the witnesses to court, exhibits are tendered, and the cases are adjourned. I cannot do anything more than I have done. A special court for EFCC-related offences will take us away from the undue legalities that many brilliant lawyers have capitalized on to twist the hand of the courts and the commission”.

However, Justice Abutu, chief Judge of Federal High Court, during his screening before the Senate Committee on Judiciary, Human Rights and Legal Matters faulted Waziri’s request for the establishment of a special court to try corrupt officials in the country.

Abutu argued that setting up special courts to try corruption and financial crimes cases would neither solve the problem of delayed justice nor boost the crusade against corruption in the country. Instead, he said the solution lies in the amendment of the provisions of the 1999 Constitution to reduce delays in the trial of cases.

“A solution cannot be found in creating a new court for EFCC. A solution can be found to the amendment of the provisions of the constitution to reduce delays in the trial of cases". He said

Instead, Abutu blamed delay in the trials to the various applications for interlocutory injunctions and stay of execution of court judgments, calling for the need to amend these provisions in the constitution that cause these delays.

“Even if the special court is established and it decides on a case, what will you do if an application for stay of execution is granted? There are too many interlocutory injunctions in the country" he argued.

one cannot forget the role played by the Federal Government too when Michael Aondoakaa, former Attorney general of the federation (AGF) deliberately or inadvertently, equivocating on sensitive issues which have enabled those charged and arraigned by the EFCC, including the former governors to capitalise on.

There was an occasion when the AGF directed the commission to always obtain clearance from his Ministry before prosecuting any accused persons in court.

Conclusion

Many EFCC cases are still pending at the court while the commission hope to still arraign more (Prof Ndi Onyuike, former NSE boss) when the green light is given, but there is the real need to address issue of delay in the trials if the commission hope ot achieve meaningful progress.

CBN absolves self from N50bln ATM fraud suit …….. We are all in it……. says Bank

CBN absolves self from N50bln ATM fraud suit …….. We are all in it……. says Bank By: Felix Adewumi The Central Bank of Nigeria (CBN) has made moves to get its name struck out from a N50 billion class action filed by some Nigerians who claimed to be victims of authorised ATM withdrawals against all the 24 banks in Nigeria and Interswitch Nigeria limited and the Apex bank. In the suit filed before Justice James Tsoho of the Federal High Court, Lagos, as a class action by Mr Tochukwu Onyuike from the Punuka Attorney and Associate chambers on behalf of the members who are victims of unauthorised ATM withdrawals, the plaintiffs wants the court to give an order directing the banks, CBN and Interswitch to pay the sum of N50 billion as general damages for the withdrawals However, the Apex bank through Chief Theo Nkire, its counsel, brought an application before the court wanting it to strike out its name from the suit because the plaintiff has not complied with the pre-condition for bringing it into the suit as required by S.46A of the CBN Act. The apex bank contended that none of the plaintiffs evidence show any wrong doing against the apex bank as the closest the plaintiffs came to linking the CBN to their claim was that the Apex bank have failed in its regulatory duty to promote monetary stability and sound finance system in relation to electronic money withdrawals. CBN argued that the present action have brought no evidence of any wrongdoing against it and the plaintiffs cannot under the Nigerian law bring an action against it unless they show evidence of bad faith against as a precondition for their action. In a swift reaction to the application, Bank PHB, represented by Barrister Joseph Olowo, its counsel, who claimed not to have been served with the application of CBN argued that the CBN cannot seek to absolved itself from any complicity since the Apex bank is a party to the suit. “We are all in it together, we will swim, sink or win it together, the Apex bank cannot try to leave us to face the suit alone, if it did not want to be a party, we must all be carried along and agree on it together” the counsel said. Justice Tsoho has however adjourned till October 12, 2010 to hear the application of CBN while also adjourning till July 26, 2010 to rule on an earlier application by the plaintiffs to bring in additional witness. In the statement of claim of the plaintiffs, they had also demanded for the sum of N2.5 million being the joint value of the sum lost by them at four of the banks as well as N100 million as the cost of litigation and N10 million as cost of providing appropriate notice to the defendants and administering the class action for their benefit. The plaintiffs who were represented by Miss Daba West, a civil servant with the Nigerian Ports Authority (NPA), Miss Nwajiagah Omeruo, a consultant, Mr Tochukwu Onyuike, a lawyer and Mr Sydney Aguwamba, a fashion designer representing all Nigerians who have been victims of unauthorised ATM withdrawals. Union Bank of Nigeria Plc, United Bank of Africa Plc, Bank PHB and Intercontinental Bank Plc were chosen as representative of the all 24 banks and any decision taken against the four banks affects the 24 banks as well as the CBN and Interswitch. They had sought a declaration that the defendants are liable to Nigerians for the losses and damages occasioned by the negligence of the defendants in relation to the provision of debit card services. Besides, they had sought a declaration that the defendants are strictly liable for any damages or losses caused to them by reason of the use of the debit cards offered to them by the defendants. More importantly, they had sought a declaration that the four banks are representative defendants of the class of defendants being those designing manufacturing supplying and offering of debit card services. Moreover, the plaintiffs sought a declaration that CBN failed in its regulatory duty to promote monetary stability and sound financial system in relation to the electronic money withdrawals. According to the plaintiff, since the introduction of the ATM in 2007, Nigerians have at all times had their inclination towards its use as they have build their daily living around the use of such cards and have always done so with the daily limit withdrawal of N60,000.00. However, they averred that at various time, they had went to make withdrawals from ATM in the usual practice but were declined by the ATM for non-availability of funds despite the fact that their accounts was funded in excess of N300,000.00 at the time of the withdrawals. According to them, in each of the occasion, after their experience, they had requested from the banks for their statements of accounts and discovered to their dismay that their accounts had been tampered with unauthorised and illegal withdrawals in rapid succession made from different ATM cash machines thereby reducing the account to zero balance. The plaintiffs contended that the banks had been negligent in their duties as commercial banks and service provider in safeguarding the plaintiff’s funds through installation of security software in total protection of the plaintiff’s fund and this is the duty ought to be observed at all time. Moreover, the plaintiffs had argued that the defendants owed then a duty of care as regard the protection of their fund by providing security mechanisms towards the safe use of the debit cards. According to the plaintiffs, the defendants have failed to take all reasonable and effective measures whether by installation of any software or any part of the information technological devices to install devices to protect the plaintiffs’ funds from unusual, unauthorised and fraudulent withdrawals. The plaintiffs also contended that the defendants failed to enhance their ATM systems to detect and retain clone cards when used as it is the standard practice all over the world and had also failed to realise the hazardous nature of offering debit card by not taking all reasonable steps to ensure that the ATM do not release funds more than N60,000.00 daily. While adding that the defendants failed to provide debit cards with the chip and pin technology which operates against unauthorised withdrawal as done in other countries, the plaintiffs added that the negligence of the defendants have caused Nigerians to suffer financial losses, physical trauma, emotional distress, loss of reputation and severe personal unrest.