[INTERVIEW] CJN Benefited From Onnoghen’s Removal Via ex parte Order, Can’t Discipline Judges Giving Conflicting Orders – Lawyer, Enikuomehin

I am against it (ex parte order) but it has its own foundation; you can’t throw the foundation away. It has never happened before that one would use an ex parte order to remove a judge; you can’t use an ex parte order to remove a magistrate. But it was used to remove the chief justice of Nigeria under Buhari.

[INTERVIEW] CJN Benefited From Onnoghen’s Removal Via ex parte Order, Can’t Discipline Judges Giving Conflicting Orders – Lawyer, Enikuomehin

A lawyer with a special interest in legal drafting, Dr Benson Enikuomehin, talks about the controversy surrounding the collection of value added tax, open grazing, state police and other related issues.

What do you make of the current struggle between the Rivers State and the Federal Government on the collection of Value Added Tax?

Governor Nyesom Wike of Rivers State raised a fundamental issue on Wednesday. He said in some states, liquor consumption is allowed and people take and pay tax on this liquor. There are states in the North where the consumption and sale of liquor are prohibited. But when the revenue from VAT is to be shared from liquor, the northern states come to the table and begin to lick their tongues and ask for the money to be shared. Let those who like liquor take the proceeds from it.

The VAT legal battle is at the moment before the Court of Appeal. Where do you think the pendulum will likely swing?

I am sure that before the matter will ultimately end at the Supreme Court, this government may have been out of power. I have respect for the judges at the appellate court. There is a judgement in favour of the Rivers State Government and the state government should enforce it. If Lagos State and other states enact laws (on VAT), let the Federal Government challenge them in court. But while the challenge is going on, the (VAT) law, as it is, will remain until it is set aside, until the court says it is contrary to the Constitution or any other law passed by the National Assembly and until that time, the law so passed by the various states will remain the law of the land.

The Federal Government and southern states seem to be heading for a collision course on the issue of open grazing. The President has given a directive for reclamation of grazing routes while southern states are enacting anti-open grazing laws. If this matter gets to court, who do you think the law will favour?

Proclamation and law are two different things. The President can proclaim anything. If he wants the entire Nigeria to have routes for cows and all that, he should go to the National Assembly and present a bill for that particular purpose. So, the President can make any proclamation but his proclamation is of no effect when it comes to law. The law would take its course. The various state governments in the South are saying that the insecurity in the country is mainly as a result of cattle rearers who are constituting menace, who are maiming, killing, and who have turned Nigeria into a mess and ridicule among the comity of nations. And they say cattle rearers should not graze cows in the southern part of the country.

They are not saying they (cattle breeders) should not carry out their business. The southern states governments are saying if cattle breeders want to do business, there is a procedure for it. There are rules. Cattle rearers can’t kidnap or stay in the forests. Are cows sold in the forests? If they say they want to graze, let them buy parcels of land, plant their corn and graze their cows their, not that a farmer would have planted yam, corn, cassava and maize and then they (herders) would bring their cows to the farm and nobody must say anything. These things did not happen when (Major) General (Muhammadu) Buhari (retd.) came on board.

The (southern) governors are not making proclamations. They are enacting laws, duly passed by the Houses of Assembly and assented to by the governors. Let him (Buhari) challenge them, that the governors don’t have a right for the purpose of ensuring that there is security in their states, that the governors don’t have a right to ensure that due process must be followed in their states, that the governors don’t have a right to tell people not to move their cows around 1am, and that the governors don’t have a right to tell herders to stop going to the forests and constituting a nuisance there. Let us hear it from the President. If he goes to court, his proclamation will fall like a pack of cards; it will collapse, it will be like a dunghill. The proclamation will not stand in the face of the law. It is the law we are talking about and this law is not contrary to the Constitution or any enactment by the National Assembly.

So, where the President wants his proclamation to work, he should go to the National Assembly. In any event, the Constitution, of which the Land Use Act forms an integral part, grants the governors of the states control, trusteeship and ownership of land in a state. The President does not have any land; the only one he can have is the one in the Federal Capital Territory.

Can the Federal Government not step in to obtain land in states?

It must be for a public purpose and public purpose, as defined under Section 51 of the Land Use Act, is for the establishment of a public institution, a university, a health centre or a place for public use. Let the President tell us whether cow rearing is for a public purpose. If the land is for national grazing sites, who are the sites for? Are they for the Federal Ministry of Agriculture; if it is for the Federal Ministry of Agriculture, then it should not be controlled by Miyetti Allah. He must also apply to the states through the Federal Ministry of Agriculture and the officials of the ministry must go to the states. In fact, there is no basis for the existence of the Federal Ministry of Agriculture because the Federal Government does not have land; land belongs to the states.

Some states in the region have yet to enact an anti-open grazing law. What is the implication of that?

In a class, some students are very sharp; they may score 90, 80 or even 100 per cent. There are students who are average; they battle to score between 50 and sometimes 45 per cent. There are students that are not good at all; they score 15 to 20 per cent. The sharp states know that if this thing (open-grazing) is allowed to continue, it could ruin the states; those are the states acting. The average ones are studying what the sharp states are doing. They will follow suit. The southern states sat together and said the law should come to fruition in September. I am glad that Ondo, which I belong to, is a pacesetter in this regard. We hear that Miyetti Allah is issuing threats. We want to know why Miyetti Allah would undermine the authority of a state, an entity.

The situation in the country is not a thing to joke about. I am in support of the laws passed by some states in the south, notwithstanding that some of them are slow learners; they will learn well. It is better they learn quickly under this regime. Was it not in this country that Zamfara State passed a law on Sharia? Did (former president Olusegun) Obasanjo tell Ahmed Yerima not to pass the law? He had the right to make a law for the state. These (southern) governors have made laws legitimately passed. If the Federal Government is not comfortable, it should challenge the laws in court. But the question we would ask is: on what grounds? Is the Federal Government Miyetti Allah? Let the states keep passing their anti-open grazing laws.

It is one thing to pass a law and it is another to enforce it. Do you think state governments can fully enforce their anti-open grazing laws since the Federal Government controls the police?

It is the police that the Federal Government controls. Does the Federal Government control the people? The people of the state will act according to the law. Do you know that individuals have the right to arrest under our law? And the various states (in the South-West) have Amotekun that they have put in place. I agree that citizens who arrest suspected criminals must hand them over to the police, but if I meet a person killing my father and I use any reasonable thing to deal with them, the law protects me. The law permits me to do that. If a person brings their cows to my farm to eat my yam and cassava, I could decide to eat their cow and slaughter as many as possible for distribution. I have not done anything wrong.

Does the enforcement of such a law require the creation of state police?

This government under General Buhari will not do it, no matter what you say, because he knows (state) police would get herders arrested. Forget about the governors abusing the position. Is the Federal Government not abusing the police? State police are sine qua non to our progress. But under Buhari’s government, it will never see the light of the day.

In the debate for restructuring as a way of creating true federalism, are there items on the Exclusive Legislative List that you think should be moved to the Concurrent List?

Yes, of course. The items on the Exclusive Legislative List are too many. I think the Federal Government should be concerned with currency, things that have to do with relationships with other countries, i.e. passport, aviation and citizenship. What is the Federal Government doing with agriculture, water resources and road maintenance and some others like that? There are certain items that should be removed. Why should the Federal Government build prisons in states? The state governments should be able to take care of that. The Federal Government can handle railways and quarantine.

The military has not done us well; unfortunately, those who have ruled us were military generals. Until we have people who understand what to do, Nigeria will be where it is for a very long time. So for restructuring, I don’t see anything happening under this government. This government will never consider it. What (former) President (Goodluck) Jonathan handed over to Buhari is gathering dust; this was what people sat down together to discuss at a national conference. The President is looking for grazing routes in 2021. Which routes? From which place to which place? We have not had enough routes for railways and roads but you want to create routes for cows, for individuals who are doing their business.

The Chief Justice of Nigeria and the Chairman of the National Judicial Council, Tanko Muhammad, summoned the Chief Judges of Rivers, Kebbi, Cross Rivers, Anambra, Jigawa, and Imo states over conflicting court decisions that emerged from their jurisdictions. What are your thoughts on that?

I think all matters can never be the same. A judge would give judgment based on the facts and evidence before him. The evidence before court A and court B may not be the same. Therefore, the courts may not give the same judgment. But the one that is a bit worrisome is the issuance of ex parte orders. Ex parte orders are supposed to be given on a very fragile matter or a matter that is of urgency, a matter that the res may perish quickly and you want to preserve the res. For example, if a person or government official is to go into someone else’s house and set the place ablaze, if the house is set ablaze, the owner may not have another house to live in until he dies. So, he rushes to court and the court grants an ex parte order stopping the authorities from demolishing the house or setting it ablaze. It is in such a matter of urgency that an ex parte order can be used.

An ex parte order is not to be used to remove somebody from office and to sack a chairman of a (political) party because when the matter is brought ex parte, the other person is not put on notice or informed.

Was it not an ex parte order from the Code of Conduct Tribunal that the Federal Government used to remove the former CJN? As soon as the ex parte order was granted, the President signed it and removed the then CJN, Justice (Walter) Onnoghen. That (CCT) was not even a high court and up till today, we are still looking for the lawyer that filed that matter and argued the application before the chairman of the Code of Conduct Tribunal that removed the CJN.

I am glad that the CJN is not happy with what is happening in the various courts, but one question to ask him is: Sir, an ex parte order was used to remove your predecessor and you are a beneficiary. Why did you not refuse it? It is a question that adults may not like younger ones to ask. But that ex parte order came from somewhere. Who was the plaintiff? Who went to court? Who was the lawyer that argued the case? Can we get a copy of the order of the court? At least, a lawyer must appear.

I am against it (ex parte order) but it has its own foundation; you can’t throw the foundation away. It has never happened before that one would use an ex parte order to remove a judge; you can’t use an ex parte order to remove a magistrate. But it was used to remove the chief justice of Nigeria under Buhari.

Do you foresee any sanction against the judges that issued the ex parte orders in the leadership crisis rocking the Peoples Democratic Party?

They can’t just come up with sanctions. If the judges have done what is wrong, there is a procedure; they are referred to the National Judicial Council. The judges can’t be removed with ex parte orders. It is the NJC that can determine that the judges did something wrong. Sanction cannot come from the CJN. With the greatest respect to him, he is not competent enough to apply any sanction on all of them. He is not the NJC; he is the chairman of the NJC. For lawyers involved in this mess, you cannot just strike out their names off the roll. You must go through the disciplinary committee of the Nigerian Bar Association which would look into it. But like I told you, it has happened before. The CCT removed a CJN (through an ex parte order) and another CJN benefitted from it and the (beneficiary) CJN is now angry that people are doing it. He should have rejected that offer (to become CJN). That is my own position.

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