By Lillian Okenwa
Hon. Justice Kayode Eso, JSC nailed it. He was a man never known to trifle with words. That much he did in the 1986 case between the Governor of Lagos State and Chief Chukwuemeka Odumegwu Ojukwu. It was another case of government’s disobedience to court’s orders.
His words: “When we allow the very foundation of adjudication to be eroded with disdain then we should be ready to say “goodbye” to Rule of Law, Peace, and Orderliness and welcome to “anarchy”, and “chaos”, and the whole society suffers for it.”
Eso’s words resonate even as questions continue being asked over the recent suspension of Lady Azuka Azinge as acting Registrar-General of the Corporate Affairs Commission (CAC).
On January 6, a Motion on Notice emanating from the Exparte Order leading to her removal will be heard at the Code of Conduct Tribunal (CCT). The question now is what was the urgency in having her suspended?
An ex parte application in law is an application that is taken in cases of extreme urgency, where failure to take it will result in destroying of the res (subject matter) or where an irreparable damage could be done if not granted.
In the case at hand, what damage could have been done if the order directing the suspension of Azuka Azinge was not made? Certainly the matter at hand is not such contemplated by the law as requiring the preservation of a res.
Little wonder why the President of Nigerian Bar Association, NBA, Mr. Paul Usoro, SAN described the entire process as an abnormality.
Usoro in his New Year speech remarked that the process leading to the removal is an abnormality that does not portend good for the security of tenure of our public officers.
“Economic growth can only be attained in an atmosphere of predictability and certainty. This new practice of tripping and removing our public officers through contrived CCT ex-parte orders corrodes confidence in the system.”
Other Nigerians have been unanimous in their objection to the speed/urgency of the entire proceedings.
A staff of the Commission who spoke under anonymity had this to say: “Ordinarily, a court must hear the other side before determining a matter. And so having granted an ex parte order which has a 14 day life span, the other side must be heard, hence the 6th January date. The public outcry is, why make such an order at that stage? It’s as if waiting for 6th January will make the heavens fall or the subject matter (res) destroyed; which are the principles guiding ex parte applications.
“These and other steps taken by the CCT leaves a reasonable person watching the proceedings to have an impression of likelihood of bias on the part of the Umpire, hence the huge outcry.”
A motion ex parte is an application which can be heard in the absence of the other party. When an ex parte order is made, the other party is put on Notice.
Meanwhile, the life span of an ex parte order is 14 days. Consequently, between 24th December 2019 when it was made to 6th January, 2020 (within 14 day period/life span of an ex parte order) the matter should be heard and an ultimate decision taken on the matter after hearing the other side.
That is the practice and procedure. The return date for the ex parte application has to be 6th January, 2020, otherwise the order will expire. The question again is why the hurry to shove her out of office?
Speaking on the matter, Chairman of Nigerian Bar Association Abuja branch, Folarin Aluko joined in condemning the procedure adopted by the CCT.
Aluko in a statement released on the 31st December, 2019, observed that there were grave concerns among members of the public about whether the Code of Conduct Tribunal, an organ of the Executive, is being used to achieve partisan objectives as it would be clearly against Nigerian Law for the Tribunal to direct the Hon. Minister of Trade & Investment to suspend and/or replace a Registrar General of the Corporate Affairs Commission.
The statement reads: “By virtue of Section 8 of the Companies and Allied Matters Act (CAMA), it is only the Corporate Affairs Commission that has the statutory mandate to appoint the Registrar General of the Commission. This power is granted by the CAMA to the exclusion of the President of the Federal Republic of Nigeria and his agent, the Minister of Trade and Investment.
“Interrogating the issue further, Section 11 (1) (c) of the Interpretation Act goes on to state that where a law confers a power of appointment, that power also includes the power to remove or suspend. By implication of a community reading of these two provisions, only the Corporate Affairs Commission can suspend or remove an Acting or substantive Registrar General. The rationale for this is not farfetched- there is clearly a need to insulate the operations of the Corporate Affairs Commission, and by implication, the economy, from the politics and bureaucracy of the Civil Service.
“This position which has been affirmed by our Courts, was recently tested in a public interest lawsuit filed on behalf of the Intellectual Property Lawyers Association Nigeria, represented by the firm of Trumann Rockwood Solicitors. I was privileged to appear as Lead Counsel in that suit.
“Although established in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as an agency of the Executive, the Tribunal is also a quasi-judicial body with a narrow scope and limited jurisdiction. The Tribunal is subject to the rule of law and is bound to observe the principles of Natural Justice and Fair Hearing.
“It is trite that justice must not only be done, it must manifest and be seen to have been done. The Tribunal should not place itself in a situation where the confidence reposed in it by the public to do justice is eroded.”
Meanwhile, Lawyers Network Against Corruption (LAWNAC) have disclosed that it has filed a Freedom of Information Act Request to determine whether the administrative predication for the charge against Lady Azinge is in compliance with the provisions laid out in the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Code of Conduct Bureau and Tribunal Act and the Code of Conduct Practice Directions 2017.
In a statement released on the 3rd January, 2019, via its official Twitter handle @lawnacng, LAWNAC said it is concerned about the allegations of bias, ethnic targeting and abuse of process in the commencement and prosecution of charges against Lady Azuka Azinge by the Code of Conduct Tribunal.
The organisation said it is of the firm view that justice must not only be done, it must manifestly be seen to have been done. This means that the Code of Conduct Tribunal must never place itself in a situation where the confidence reposed on it by the public to do justice to all parties before it in all circumstances is eroded. The stream of justice must be kept clean and clear without any suspicion of pollution.
“LAWNAC is more particularly concerned about these weighty allegations following the shocking use of ex parte orders by the Tribunal, noting that the Court of Appeal recently chided the Tribunal and the Chairman for conduct creating a likelihood of bias.
“LAWNAC is concerned that the current trajectory on which the Tribunal is headed is against the spirit and letter of the laws establishing the Tribunal and will derail the Tribunal and erode any public confidence reposed in the Tribunal.
“LAWNAC recognizes that the Learned Justices of the Court of Appeal have had course to reprimand the Chairman of the Tribunal in the case of Rasheed Owolabi v. FRN, Suit No: CA/A/623C/2016 decided on the 2nd March, 2018, where the Court of Appeal overturned the ruling of the Tribunal headed by Chairman Danladi Umar against the Defendant, Mr. Owolabi.
“In the words of the Court of Appeal: ‘The pertinent question is whether in the circumstances of this case, it may not be inferred that right-minded persons of the public would have the impression that there is a real likelihood of bias against the appellant. Any reasonable man observing the proceedings will definitely have the impression, in the prevalent circumstances of this case, that the appellant will not get a fair trial from such a Tribunal whose chairman has had some grievance or embattlement with the appellant.’
“It is in fact noteworthy that the chairman was not completely absolved of blame in the petition filed against him to EFCC by the Appellant. Though the EFCC, after investigation had concluded that there were no sufficient facts to prosecute the chairman of the Tribunal, Justice Umar over the allegation of graft made against him by the Appellant, yet he was vilified for ‘a most unethical and highly suspicious conduct in his part” for the chairman meeting privately with the Appellant in his chambers at the Tribunal. It is also significant to note that the Personal Assistant to the Chairman is being prosecuted for some amount of money paid into his account by the Appellant over the same matter.’ See E.F.C.C. Investigation Report at pp. 68-69.
“Part of the EFCC Report specifically stated thus: ‘There are indications that the tribunal Chairman might have demanded and collected money from the complaint through his said personal assistant. However, efforts made to recover the telephone handset used by Justice Umar proved abortive, as he claimed that he had lost the telephone in 2012. This has made it impossible to subject it to independent scientific analysis with a view to corroborating the allegation. Justice Umar also admitted that he met privately with the complaint in his chamber at the tribunal. This is unethical and highly suspicious conduct on his part.” (See p. 69 of the Record of Appeal)
The Lawyers Network Against Corruption is a network of Legal Practitioners in public and private practice from all 36 states of the Federal Republic of Nigeria dedicated to the fight against corruption Nigeria, and especially in the legal profession and the justice delivery sector.
