The role of each of the Nigerian courts is clearly defined by the 1999 Constitution as amended. Sub section 5(a) to (i) of Section 6 also defined the courts such that some are termed ‘Superior Courts of Record’. But section 7(1) of the National Industrial Court Act 2006 provides its jurisdiction. In this interview with YETUNDE AYOBAMI OJO, Lagos-based Senior Advocate of Nigeria, Babatunde Fashanu, bares his mind on this. He also spoke on the Rivers State Local Government crisis, the ways to recover stolen funds among others.
What’s your take on the National Industrial Court’s decision to overrule the judgment of High Court in Rivers State Local Government crisis?
Well, we all know that during the administration of former Governor Rotimi Amaechi regime, they were going to organise local government elections, but the People’s Democratic Party (PDP) went to Federal High Court. They ought to have gone to the State High Court but for inexplicable reasons, they went to the Federal High Court, and surprisingly, too, they joined the Independent National Electoral Commission (INEC), which ordinarily is outside their jurisdiction because only a Federal High Court could handle that being a federal institution. But then, you have to look at the claims. Were they properly couched in a way that the court would know whether or not it has jurisdiction? That is also important! Although I am not involved in the case, but what I read in papers and heard over the radio and television, it ought to be the State High Court.
From my deductions, what was taken to court was a restraining order on INEC so that it would not release the register of voters to the State Independent Electoral body thereby making it impossible to conduct the council election in the state. The court said they should maintain the status quo, but later on, an election was conducted in defiance to a subsisting order. The chairmen emerged and were sworn in and council were constituted following the results. However, news spread that it was the party that conducted the election. So, the argument is that the court did not ask the party not to hold election in the state. They argue that since the party conducted the election and they already have their voters register, it should stand. Whether they breached court order or not, is for the court to decide. Apparently, the case came before the judge upon complaint that order of court was breached and court in its wisdom nullified the election on the excuse that it was in breach of its order. That was the situation. The new governor, Nyesom Wike, dissolved the council, purporting to appoint caretaker committees and the local government chairmen and councillors went to the National Industrial Court with complaint that their employment was unlawfully stopped and got order restraining the dissolution of the councils, which run in conflict with a Federal High Court order. This is so because if you say don’t dissolve the council, that means the elected ones would continue to stay there.
Which or better still, whose order is to be obeyed; the Federal High Court or Industrial Court?
The both courts have competent jurisdiction to be obeyed; same power, same jurisdiction like the state court, which means that their powers are not superior to each other. Therefore, the people were affected by those orders can ordinarily choose which one to obey. Of course, that would lead to anarchy. The solution is for the parties to go to Court of Appeal. Fortunately, the Federal High Court has been referred to the appellate court so it will hear it and quickly give judgment.
What do you think government should do to recover stolen funds?
It is no longer a matter of conjecture that corruption is endemic in this country. But the government can only be selective because I think the problem is so big and if government says it wants to take a wholesome approach to it, it will never do any work. It will not benefit the people in terms of development. It has to be selective; some people are just coming out of government and others were there before. I think they have already set up economic commission under the Vice President to look into some clear cases of financial misdemeanor on the part of some public servants. There are cases where funds were allocated to local government councils, but it didn’t get there or where it did, one tenth gets there. There records and the papers are there. They can easily pick them up. There are also some former governors who have lost their immunity. The best thing to do is to pick them up to provide accounts of their stewardship when they were in government. I think, this is the best time for the Economic and Financial Crimes Commission (EFCC) to come alive, because the anti-graft agency has been virtually asleep for some time now. It is certainly going to be selective for now, because there are some areas of criminal justice system you can go on appeal; that is your constitutional right but you cannot stop the case. And that is absolutely commendable. In Court of Appeal, too, they had an enactment recently whereby all the interlocutory injunctions are not allowed; you have to finish the case and appeal on everything, terrorism, drug law enforcement and all that. They can look at the lingering and obviously misleading records of the Nigerian National Petroleum Corporation (NNPC) If it is found that records were mixed up, the law takes its place by either EFCC or ICPC taking over the investigations and press charges on those suspected to have had a hand in such a fraud. I am sure that if there is no respect for persons, there will be positive results from the trial.
Suspects can always appeal a case; there comes a time when the judge will get to the end of the case which is what happens in most civilized climes. Then, like I said, the appellate system too, they need to help them with modern working tools so as to make dispensation of justice faster. I said that because at the court of Appeal, you still need to compile records; especially as appeals have so much to do with records of what happened at the lower court. The records should be done very fast by installing technical aids so that they could dispense cases fast. So, when you deal with 20 people and they go to jail, and you are able to recover some money, like the former President Olusegun Obasanjo did when he was in government, it will serve as a deterrent to others. Mind you, our constitution still has to be amended to make our justice system perfect or near perfect. If we adopt the legal system; continental laws, in use in countries like France, Germany or the entire European system, it will benefit us.
What laws do you think can be borrowed from these countries to make our society better?
Personally, I think continental laws are one of them. When you talk of corruption, which like I noted at the start of this interview is endemic and a serious disease requiring serious solution, we mean acts that inhibit the general development of the nation and people of a country. We can retain the common law, but if we must fight corruption we must adopt the continental system. But I know it can be used for political purposes. But if we want to do it, we make good study of it so as not to misuse it. I think it a law that we need to critically look into, especially in our fight against corrupt practices by public officers.
What do you think should be done to curtail the rate at which the EFCC loses cases?
They are losing cases because people they take to courts have money to get the finest of lawyers to handle their case. I know EFCC too have SANs helping them in most of their cases, but the system is in such a way that courts favour accused, unfortunately. It is sad that some cases that are obvious still do not get a head way. How can anyone explain that a public officer to whom money was handed over to; ostensibly for general development and the money gets missing without traces. Truth is that although it is clear that the money is missing, the burden is still on the accuser to prove that money was given to the accused. This is abnormal. It should have been the reverse. The man who spent money or in whose possession public money allocated to him got missing should have been the one to explain what he did with the money. It is so sad that we have this kind of system in Nigeria. Really, where we cannot change this warped system, we then need a specialized court.
