In this edition, Law & Human Rights reviews three separate committal proceedings instituted against the Chief Executive Officers of the Economic and Financial Crimes Commission, EFCC, the Nigeria Police Force and the Nigerian Army and how their refusal to comply with the court order committing them to prison is endangering the rule of law.
Between November 8 and December 2, 2022 three high court judges sitting at different locations in the country jailed the chief executive officers of the Economic and Financial Crimes Commission, EFCC), the Nigeria Police and Army for contempt.
The three judicial officers are Justice Mobolaji Olajuwon of the Federal Capital Territory High Court, Justice Halim Adbulmalik of the Niger State High Court in Minna and Justice Chizoba Oji of the Federal Capital Territory High Court in Abuja.
While Justice Chizoba Oji of the Federal Capital Territory High Court jailed the EFCC chairman, Rasheed Bawa on November 8, 2022, his counterpart, Justice Mobolaji Olajuwon of the same court jailed the Inspector-General of Police, Usman Alkali Baba on November 28, 2022. Justice Halim Abdulmalik of the Niger State High Court in Minna jailed the Chief of Army Staff, Lt. Gen. Faruk Yahaya on December 2, 2022.
The common sin of the trio was disobedience to separate subsisting court orders.
By the order of the court, the EFCC Chairman was to remain in custody indefinitely until he purged himself; the Inspector-General of Police was to cool his heels in prison for a period of three months in the first instance while the Chief of Army Staff was to share cells with common criminals for six days in the first instance. Warrants were accordingly issued against the three chief executive officers to effect their arrest but none of them were arrested.
Although the committal order issued against EFCC had since been vacated and the entire committal proceedings set aside after full compliance with the order of the court as it affected EFCC and its chairman, the IGP merely issued press statement to announce that he would appeal the judgment while the Chief of Army Staff has kept mum over his own case.
The Bawa’s case
The EFCC had arraigned a retired Air Vice Marshal (AVM) and former Director of Operations at the Nigerian Air Force, NAF, Mr Rufus Ojuawo in 2016 before an FCT High Court on a two-count charge of corruptly receiving kickbacks to the tune of N40 million and a Range Rover Sport (Supercharged) valued at N29.250 million from a contractor of the Nigerian Air Force – Hima Aboubakar of Societe D’Equipment Internationaux Nigeria Limited.
The matter went on full trial but the trial judge in the case discharged Mr Ojuawo in a judgement delivered on November 21, 2018 on the ground that the EFCC failed to prove that Ojuawo accepted the gifts while discharging his official responsibility as military chief, and that the gifts were inducements or rewards.
The court which held that the prosecution (EFCC) had failed to prove the two counts charge of corrupt gratification under S17 (1)(a) and (c) of the Corrupt Practices and Other Related Offences Act, 2000 consequently ordered EFCC to refund the retired AVM Ojuawo his N40,000,000 wrongly paid into ONSA recovery account and his Range Rover Sport (Supercharged) forthwith.
But the EFCC and its chairman refused to comply with the order, a development that made Ojuawo to file a committal proceeding against them. Although, the EFCC lawyer, Francis Jirbo, tried to justify the agency’s failure to comply with the court order during the hearing of Mr Ojuawo’s application, the judge rejected the lawyer’s arguments before convicting Mr Bawa on 28 October and ordered the Inspector-General of Police to execute the warrant of arrest issued against him to serve his term.
The IGP Alkali Baba’s matter
For the IGP Alkali Baba, the case that got him jailed was filed by a former Chief Superintendent of Police with Bauchi State Command, one Mr Patrick Okoli, who was unlawfully retired from service in 1992 by the Nigeria Police Council under Decree 17 of 1984. Okoli had gone before a Federal High Court with a suit marked: FHC/ABJ/CS/637/2009, to invalidate his compulsory retirement and secure a separate court order compelling his reinstatement.
Justice Donatus Okorowo had in a judgment handed down on October 21, 2011, granted an order of mandamus compelling the IGP to reinstate Okoli as earlier directed by the Police Service Commission (PSC), as contained in its letter of May 5, 2009 (with Ref. No. PSC/CSP/01/11/295A), and to present for the recommendation of the commission, the IG’s recommendation for the promotion of the applicant from 2013 to date, among others.
However, following non-compliance with the judgment, Okoli’s counsel, Egbo, filed Forms 48 and 49 supported by affidavit before a Federal Capital Territory High Court judge, Justice Olajuwon, praying the court to convict and sentence the IGP for failing to obey court judgment delivered by Justice Okorowo on October 21, 2011.
After hearing other parties in the committal proceedings, the court held that the IG had blatantly refused to carry out the order of the court despite being aware of it. Before the court convicted the IGP, it came down heavily on him thus:
“This court has bent backwards over and over again for the respondent. This Court even ordered that the Assistant Chief Registrar (Litigation) write to the respondent to inform him of the pendency of this matter, which he did and the proof of receipt of same in the office of the respondent is before this court.
“It is unfortunate that the chief enforcer of the law is one who has deliberately refused to comply with the same law. It is important to state that obedience to orders of court is fundamental to the good order, peace and stability of a nation.
“It is a duty which every citizen, who believes in peace and stability of the Nigerian state, owes the nation and the court has a duty to commit the individual who has failed to carry out the order of the court for contempt, so as to prevent the authority and administration of law from being brought to disrespect and to protect the dignity of the court,” she said.
According to Justice Olajuwon, the IG shall be liable to another three months jail-term if he fails to purge himself of the contempt. But instead of obeying the judgment, the Nigeria Police has said it was not aware of the court order. It however, said the IG had directed the Commissioner of Police in charge of the Force Legal Unit to investigate the allegation in a bid to ascertain the position of the court and proffer informed legal advice for IG’s prompt and necessary action.
The COAS’ case
For the COAS, a High Court sitting in Minna, Niger State, heard a case concerning one Adamu Makama and 42 others against the governor of Niger State and seven others with the Chief of Army Staff, Lt. Gen. Faruk Yahaya, and the Commandant, Training and Doctrine Command, Minna, Major Gen. Stevenson Olabanji, listed as 6th and 7th defendants respectively.
Counsel for the plaintiffs, Mohammed Liman, had prayed the court to send the army chief and commandant to the custodial centre for disobeying an order made on October 12, 2022. Ruling on the application, Justice Abdulmalik said: “An order is made committing the Nigerian Army Chief of Staff, General Farouk Yahaya, and the Commander, Training and Doctrine Command, Minna, i.e the 6th &7th respondents, into the custody of the correctional centre for contempt of the order of this honourable court made on 12/10/2022.”
The judge ordered that the army chief and commandant should remain in custody until they purged themselves of the contempt.
Buhari govt’s attitude to court orders
Apart from the three cases highlighted above, the executive under successive governments is fond of disobeying court orders with impunity. For instance, the Socio-Economic Rights and Accountability Project, SERAP, in a report published in February this year, revealed that since inauguration in 2015, the President Muhammadu Buhari’s administration has disobeyed many court judgments.
Human rights activist and prominent member of the inner bar, Mr Femi Falana, SAN, catalogued over 150 separate court judgments disobeyed by the executive lately. During the public presentation of the SERAP’s report, its Deputy Director, Kolawole Oludare highlighted some of the court judgments which his organisation had secured against the federal government but which no action has been taken to implement.
According to him, “The first of such judgments is the judgment by Justice Hadiza Shagari delivered on July 5, 2017 ordering the federal government to tell Nigerians about the stolen asset it allegedly recovered, with details of the amounts recovered.
“The second judgment, by Justice Mohammed Idris, on February 26, 2016 ordered the federal government to publish details on the spending of stolen funds recovered by successive governments since the return of democracy in 1999.
“The third judgment by Justice Oluremi Oguntoyinbo on November, 26, 2019 ordered the federal government to challenge the legality of states’ pension laws permitting former governors now serving as ministers and members of the National Assembly to collect such pensions, and to recover pensions already collected by them.
“The fourth judgment, by Justice Mohammed Idris on May 28, 2018, ordered the federal government to prosecute senior lawmakers suspected of padding and stealing N481 billion from the 2016 budget; and to widely publish the report of investigations into the alleged padding of the 2016 budget.
“The fifth judgment by Justice Chuka Obiozor on July 4, 2019 ordered the federal government to publish the names of companies and contractors who collected public funds since 1999 but failed to execute any electricity projects. These judgments and many others by the courts have remained unchallenged till date and the federal government has refused to obey them.”
There are several other cases where government had treated court orders with contempt.
Implications of disobedience to court order
According to Kolawole Oludare, the country stands at a dangerous point if disobedience to court judgments is allowed to continue. He said: “The failure and/or refusal to enforce and implement legally binding judgments of the court is entirely inconsistent and incompatible with Nigeria’s international human rights obligations.
“It is unacceptable to take the court, which is the guardian of justice in this country, for a ride. A democratic state based on the rule of law cannot exist or function if the government routinely ignores and/or fails to abide by court orders.
“The persistent and deliberate disobedience of judges’ decisions would, ultimately, shatter citizens’ confidence and trust in the ability of the justice system to render justice for victims of corruption and human rights violations.
FG’s action, dent on democracy—Ex-NBA chief
Also contributing, the Chairman of the Nigerian Bar Association Section on Public Interest and Development Law, NBA-SPIDEL, Dr. Monday Ubani said disobedience to court judgments by the federal government, is a dent on democracy.
He said: “Every government in Nigeria has always disobeyed court orders and trampled upon the rule of law with impunity. Our thinking was that Buhari’s government that promised change would have been different but that is not the situation.
“The present government has surpassed previous governments in disobeying Court orders and trampling on the rule of law. We have lost count in the number of court orders they have disobeyed.
“In disobeying court orders, the present government does not do itself any good as the records are there for future use and will remain a permanent dent to those who operated our democracy within the time in question. They still have enough time to change their behaviour and cleanse the negative image they have created for themselves in their penchant for disobeying court orders.”
Obedience to court order sets the country on path of socio-economic development—Ofeli
To the Executive Director of Cadrell Advocacy Centre, Evans Ufeli, the rule of law is the hallmark of democracy and obedience to court order sets the country on the path of socio-economic development and rule of law.
He said it is quite saddening that this government has adopted gangsterism as a social objective, stressing that the consequence of this is that the judicial institution as sacred as it ought to be has been forced into carnality by a government that actually benefited from the rule of law and a judicial system they now chose to destroy.
He advised government to stop desecrating our democracy and live up to expectations of the led or leave the stage for those who can do the job.
My worries about FG’s attitude to court orders—Gbenga Ojo
A senior lawyer, Gbenga Ojo warned that Nigeria is gradually sliding into autocracy with tge rate at which government is disobeying court judgments.
According to him, it is the duty of the government to obey the judgment of the court but that if the government is not satisfied with the judgment, the remedy is to appeal and this is where the Attorney General comes in.
He said that the A-G though, a member of the executive, is first and foremost, a legal practitioner who has a duty to ensure that the judgment of the court is obeyed by the government he is serving.
When power of contempt can be invoked
One of the most important powers of a court of law is its power to give orders. Very often it has to make an order commanding a person to do something — or restraining him in some way. If he disobeys, the court can punish him for contempt of court either by fine or by imprisonment.
However, it is possible that a judge whose order is disobeyed may decide to punish the contemnor by issuing warrant of arrest against him and in serious cases jail such individuals but such power is rarely invoked as it happened in the three cases reviewed above.
More worryingly is when such power of contempt by a judge is invoked to sanction top public officers like the IGP who is the chief law enforcer in the country, the EFCC Chairman or the COAS as reviewed above, how can such committal orders be enforced?
Issues with enforcement of committal orders
A lawyer, Dr. Fassy Yusuf however said the committal orders given by the court against top public officers like the ones reviewed in this write-up are enforceable.
According to him, obedience to orders or laws should be the first thing that any government should try to enforce and that, no matter the situation, the law must take its full course.
He further said that there is no judgment that cannot be enforced if this country believes in the rule of law and the sanctity of law and no matter how mighty you are, the law is mightier than you do.
He said one of the surest ways where top government officials are involved is for the executive, championed by the Attorney-General (AGF) of the Federation and the Presidency to ensure that the orders and the committals are complied with. Yusuf argued that those affected should not be goaded and they should not be forced into influencing the law.