By DAYO BENSON
That armed soldiers were deployed on the streets of Lagos to crush the unprecedented protest over fuel subsidy removal is no longer news. What is new is that the Soldiers have been withdrawn following demands for such by Governor Babatunde Fashola, SAN and pressure from well-meaning Nigerians.

In this interview, Lagos State Attorney-General and Commissioner for Justice, Mr. Adeola Ipaye spoke on the issue, maintaining that peaceful protest is legal in democratic setting. He also spoke on the police use of tear gas to disperse some protesting elder statesmen as well as the controversial Lekki-Epe toll plaza legal tussle and the new Lagos Tenancy Law.

AS the number one law officer in Lagos State, how do you react to deployment of soldiers on the streets of Lagos by President Goodluck Jonathan following the fuel subsidy protest?

*Lagos State Attorney-General and Commissioner for Justice, Mr. Adeola Ipaye

We know of no valid excuse that could justify it, and His Excellency, the Governor, has made that clear in his Broadcast last Monday. Even when the subsidy strike was on, Lagos protesters were well-behaved, despite their huge numbers.

Soldiers coming onto the streets just when people are resuming their normal activities at work or in school convey the impression that Lagos has become a potential battleground and therefore unsafe. Unfortunately, this is a reversal of the message that our administration has struggled hard in recent years to convey to residents and visitors alike.

Action plans

With the government’s action plan and contributions made by Lagosians through the Security Trust Fund, we have been able to attain the number one position in terms of security in Nigeria, despite the population density of Lagos and the extra difficulty of maintaining law and order.

The night economy has picked up and investors are beginning to put money in modern, high rise hotels and other business establishments. People from all over Nigeria are coming in to partake of the attendant employment opportunities and business prospects.

To suddenly put soldiers on the streets now signals danger and may actually spark undesirable consequences, God forbid. I trust that reason will prevail sooner than later.

Both the Defense Headquarters and the state government traded accusations over the soldiers’ deployment. Could you put this issue in perspective?

Well, the astounding suggestion from the federal officers was that we asked for the soldiers to assist the Police locally. They were presumably referring to OP MESA which has been in existence as a joint patrol of the Police, Army, Navy and the Air Force for local security in Lagos.

OP MESA is not something of yesterday or the day before. It has been there for years. Like I said, it is a joint patrol effort and they go out in vehicles clearly marked OP MESA. Now let us ask ourselves why Lagosians are protesting the presence of these soldiers.

It is because they have never seen anything like this in recent times. We are clearly not talking of OP MESA this time. These are purely soldiers, well armed in Army gear and Army vehicles, sitting around at various locations and generally giving people a huge scare.

If the Governor asked for them, he won’t thereafter go on air to express surprise at the deployment and request their removal. And lets even face it, if you put them there because you somehow thought he need
ed them or asked for them, what do you do now that he has made it clear they are not needed and should be removed?

What are the legal and the constitutional options open to a State government in this kind of circumstance?

In a constitutional democracy such as ours, it does not make sense that soldiers would be massively deployed for local security in the absence of a confirmed or objectively ascertainable emergence; and in the absence of prior consultation with the authorities in the affected State or local government.

However, in matters like this we must, as responsible governments on both sides, be seen to have engaged in a constructive dialogue. There are various platforms on which this could be speedily resolved, but if we find no resolution, the courts will definitely have the last say when we approach them to interpret the Constitution and tell us the correct position.

Some elder’s statesmen were  last week dispersed with tear-gas by security agent in Lagos, thereby creating an impression that peaceful protest has become a crime in the state. What is your comment?

That is the irony of this invasion called protection. It is by itself causing problems where there was none before. Do we really need this? Peaceful protests cannot be illegal in a democratic setting, if the protesters do not break any law in the process and the protest march is not conducted in such a way as to infringe on the right of other citizens.

Unlawful conduct

The reports that we got did not suggest any unlawful conduct on the part of the protesters, so we are at a loss as to why they were tear gassed and dispersed in such an ignoble manner. Some of these protesters are well-respected senior citizens who cannot harm anyone and who have nothing personal to gain but the propagation of progressive ideas in Nigeria. I think that incident puts us all to shame really, not just the policemen that caused it.

Away from the protest issue, why did the state government ignore the pending appeal before the Court of Appeal in Lagos and still went ahead with toll collection at the Lekki /Epe toll plaza?

Good!  I think we need to put the Toll Gate litigation in its right perspective, then the public will know the big mischief being played out by the counsel in question. He first filed a suit in 2010 to challenge the constitutionality and propriety of the Eti-Osa-Lekki-Epe Concession.

In that case he also sought an injunction to restrain government from collecting tolls. Then he drew back. Having filed all these papers, he started dragging his feet and delaying the hearing with one excuse or the other.

That case was eventually struck out when the lawyer was not ready to argue his own application on the date fixed for hearing. That is suggestive of an intention to abuse the law, I think. The case was bad and he apparently filed it only to tie the hands of government, on this pretext of a case pending.

Then he went on to the Federal High Court barely 24 hours after the first suit was struck out at the State High Court. Again, this was suggestive of an abuse of legal process; because every lawyer presumably knows about jurisdiction of courts and this was not a borderline case.

Predictably, the Federal High Court threw the case out and showed him the way back to the appropriate court. That was the decision he filed an appeal on at the Court of Appeal. Again, the rules are clear enough.

Record of appeal

An Appellant is expected to compile record of appeal within 30 days if the Registrar of the trial court fails to do so within the first 60 days of appeal being filed. If after a total of 90 days, nothing has happened to move the appeal along, Counsel cannot expect that the hands of the other party are thereby tied and the world should stop and wait.

I can assure you that the law does not pander to that kind of behavior. All the talk of a case pending, in my view tantamount to claiming an immoral high ground. If the case is pending we will go and argue it, but somebody cannot just file papers, go to sleep and expect the world to wait.

I asked this question because as far back as 1971, the Supreme Court had in Savalak case stated that once the other party has been served a notice of appeal, the status quo must be maintained by the parties in order to preserve the res?

I think we must look carefully at the circumstances here. This is not an interpersonal issue affecting the Claimant and the Defendant only. Public interest is at stake. Pursuant to a binding contract, an international consortium has committed billions to the construction of a public highway which construction has brought enormous relief to all road users.

Tolls are to be collected from those road users and one man, who lost his case at the high court, says I have filed an appeal, so you must wait until the appeal is disposed of before collecting tolls from anybody. For me that is an absurdity.

What if he won at the High Court? Are we saying a litigant gets his wish either way, win or lose? Or that what anyone needs to stop a multi-billion naira public infrastructure transaction is merely to file papers at the Registry?

Is that not against public interest and public policy? Which investor will come to that kind of jurisdiction to do business? It’s like someone saying I don’t like that law the House of Assembly
has just passed.

My case to stop it at the High Court has been struck out, but I have filed an appeal. That law must not take effect until my appeal is heard and determined. Can that be the correct position of Nigerian law, really? I think not.

Lagos State government had cited the same issue of appeal as a ground of not obeying the Federal High Court Judgment against LASTMA. So why did it find it difficult to take notice of the appeal in the Lekki /Epe toll plaza issue?

I advised the release of the claimant’s vehicle immediately that case was determined, despite the pending appeal. But should I also order a cancellation of all fines under LASTMA Law, I think not. Note that the Claimant never asked the Federal High Court to invalidate any provisions of the LASTMA Law.

Also, we are challenging the jurisdiction of the Court to even adjudicate the matter in the first place. So the circumstances are clearly different. Laws enjoy a presumption of regularity until they are frontally challenged and expressly invalidated.

As they affect the general public, you cannot be switching laws on and off like electricity when there has not been a definite and final decision on them. Certainty of laws is of essence to orderly society.

There were allegations that the state government was the unseen hand behind the thugs that molested residents who protested over the toll collection?

Absurd as they are, these conspiracy theories tend to multiply as they are discussed, so I won’t say much on that. Be assured that the Lagos State Government is not in the business of hiring or using thugs for any purpose.

You said at a media briefing that nobody died during the protest contrary to a newspaper report. Could you further clarify this?

All the clarifications are now in the public domain. Fortunately, the dead man’s picture was in the newspaper that manufactured the story. The same man has risen to say he never died. Even his bereaved widow turned out to be a fictional figure.

Hardworking press

The man said publicly he was never married. Lagos is too sophisticated for a person killed publicly to be carried off and buried without more. The protest leaders would certainly have cried foul. Families and friends would have cried out, and in any case, the hardworking press would have exposed the story.

Would you say the new tenancy law in Lagos State is working and if it is what is the level of compliance?

Definitely, the Law started working immediately it came to the notice of Lagosians. I think we tend to measure effectiveness of laws by the number of people arrested, tried and thrown into jail. This is a wrong notion. Laws are normative.

They indicate the standard of behavior that the society will accept. Most of us are instinctively law abiding. So the moment we get to know that advanced rent should not be demanded for a period exceeding one year, we just comply.

We don’t need the Police to come and force it down our throats. But I also agree with you if you think that many people will not obey, unless they are forced. It is indeed a fact of life that many people will disobey and get away with it.

This is not peculiar to any law. Even armed robbers get away quite often. Shall we then say criminal law is not working? If you want to see the Tenancy Law at work, come to our Citizens Mediation Centres. Hundreds of cases are resolved there on a weekly basis and many of these are landlord/tenant cases.

Guess what
rules or law they use to set standards, settle terms and determine the cases? It is of course the Lagos State Tenancy Law.

Apart from the tenancy and criminal laws, what other areas are we expecting reforms?

Law reform is second nature to Lagos State Government. We set the standards for others in Nigeria and beyond to follow. We want to take that to the next level now by properly restructuring and reconstituting our Law Reform Commission.