A Toast to Sirika, Obiano and Bello 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Executive Recklessness: May 2023 Ministry of Aviation Saga

In the news last week, was a videoclip of a House of Representatives Hearing on how sometime in May 2023, a few days to the end of the tenure of Hadi Sirika, the immediate past Minister of Aviation, and with his approval, Ministry of Aviation officials without following due process, auctioned and undersold two Bell Helicopters which had barely done 42 and 46 hours respectively (almost spanking new) belonging to the Nigerian College of Aviation worth $4.8 million, for $1.2 million to private individuals, on the guise that the helicopters were not being utilised, despite the fact that the Nigeria Army had written to them to express their interest in the helicopters, in order to use them to aid them in the fight against insecurity. Even though the proposed auction was advertised in the newspaper to invite bids, it is worthy of note to state that the sale of the helicopters was done without the requisite Federal Executive Council (FEC) or Presidential Approval. 

Obviously, John Fitzgerald Kennedy’s famous quote from his Inaugural Address of January 20, 1961 when he took his oath of office as the 35th President of USA, “…Ask not what your country can do for you – ask what you can do for your country”, is farther from the minds of most Nigerian politicians and civil/public servants, than Neptune is from the earth! It is rather unfortunate, that many of those put in positions of trust and authority have breached their Oaths of Office, Code of Conduct and all the obligations contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) with gusto and aplomb, and are more interested in plundering Nigeria for their own personal benefit, than to do anything remotely related to the nation building and development they were employed to do. Indeed, in their own case, it’s only about what Nigeria can do for them, and how they can abuse their positions to enrich themselves.

Why is it that at least 30-40% of these officials, are involved in some scam or the other? These scams/corruption, are costing Nigeria dearly; and, it is time for Government to rise up and be more firm and decisive in the fight against corruption, while curbing its own unnecessary expenditure at the same time. These two destructive practices seem to be an African thing – also last week, we saw that Kenya seems to be passing through a similar experience as Nigeria, in terms of corruption and reckless expenditure by their Government.

Yahaya Bello v Willie Obiano: Who is Better?

Additionally, in the news last week, I saw that the aside from the former Governor of Kogi State, Yahaya Bello (who is still at large), the former Governor of Anambra State, Willie Obiano is also facing corruption/money laundering charges. It may sound tragicomic, but does it make it better that, in doing a comparative analysis, Mr Obiano is not as bad as Mr Bello, because Mr Obiano’s charges only amount to about N4 billion, while Mr Bello’s charges are in excess of N80 billion? Or is Mr Obiano just as bad? Because, some of the money that he stands accused of siphoning, allegedly regularly came from the Anambra State Security Vote and went into private accounts controlled by him, funds that were paid monthly by the Federal Government to Anambra State for the purposes of securing the lives and property of the people of Anambra State; in a zone that faces security challenges due to the dastardly activities of violent separatist terrorist groups who have held the South East zone to ransom, even using force and fear to make the people adhere to an illegal sit-at-home order every Monday for years, making them lose income; while many have needlessly lost their lives. See Section 14(2)(b) of the Constitution, on the primary purpose of government being the security and welfare of the people.

Nigerians are amazed and disgusted that months later, Yahaya Bello has still not been arrested by the EFCC and produced in court, and to the chagrin of many, a fugitive like Mr Bello, transmitting from under the rock where he is hiding, is the one attempting to dictate the terms of how the case against him should be prosecuted!

Frivolous Interlocutory Applications 

A common thread that runs through the Bello and Obiano cases, is that their Counsel both applied to the Federal High Court (FHC) Abuja, that their cases be transferred to their home States, Kogi and Anambra, because that is where they are alleged to have committed the crimes. 

Of course, even a Baby Lawyer knows that it’s all delay and distractionary tactics. In PDP v Uche & Ors (2023) LPELR-59604(SC) per Uwani Musa Abba Aji, JSC, the Supreme Court held inter alia that the Federal High Court has jurisdiction throughout the Federation, and out of jurisdiction is outside Nigeria. In PDP v Uche & Ors (Supra) the location in question was Owo in Ondo State, and the Apex Court held that it is within Nigeria, and therefore, within the jurisdiction of the FHC Abuja. The same applies to Kogi and Anambra; they are within the jurisdiction of the FHC Abuja. In Adetona & Ors v Igele General Enterprises Ltd (2011) LPELR-159(SC) per Ibrahim Tanko Muhammad, JSC (later CJN), the Supreme Court had earlier held that “the FHC enjoys nationwide jurisdiction, whereas a State High Court is confined to the territory of the State and that of the Federal Capital Territory to the Federal Capital Territory (FCT)”.  See also Section 19(1) of the FHC Act and Order 6 Rule 31(1) of the FHC (Civil Procedure) Rules 2019. 

In Omonuwa v Oshodi & Anor 1985 2 N.W.L.R. Part 10 Page 924 the Supreme Court adopted the definition of Interlocutory Applications of Cotton LJ in Gilbert v Endean 1877 9 Ch.D 259 inter alia as those that are “….for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of parties”. There are different types of interlocutory applications, including those to compel parties to provide further and better particulars; interrogatories or discoveries; or for injunctive reliefs. But, whatever the reason for the interlocutory application, they must be germane and not unnecessary, or a ruse like in the Bello and Obiano cases, where we already all know that wherever the alleged offences were committed in Nigeria, it is within the jurisdiction of the FHC Abuja.

In recent times, I have been arguing that when Counsel come to waste the precious time of the already over-burdened courts, Counsel should be sanctioned. Awarding heavy punitive costs against time wasters, is a good way to go. This should be applicable in the case of frivolous and baseless interlocutory applications like the ones made by Counsel in the Bello and Obiano cases, to transfer the matters to their home States. This is the only way to curb the onslaught of vexatious, time wasting interlocutory applications which are then appealed all the way to the Apex Court, in a bid to buy time and delay the substantive case, particularly because decisions in interlocutory applications usually do not finally dispose of cases, or effectively terminate or determine the rights of the parties in cases completely. See Ude v Agu 1961 S.C.N.L.R. 98. 

In my humble opinion, cases shouldn’t be halted because of nonsensical applications, particularly in this kind of situation where the argument is not even that the FHC Abuja lacks jurisdiction to entertain the matter, but that the alleged offences took place elsewhere. Sometimes Counsel then apply for a stay of proceedings, while their  pointless Interlocutory appeals go through the mill of appeals to the Supreme Court. The saving grace is that, by virtue of Section 306 of the Administration of Criminal Justice Act 2015 (ACJA), the court isn’t permitted to entertain applications for stay of proceedings in criminal matters. 

The argument of Counsel in the Bello and Obiano cases would only have been justified, had their matters been brought before the FCT High Court, whose territorial jurisdiction is restricted to the FCT. In Union Beverages Ltd v Pepsicola International Ltd & Ors (1994) LPELR-3397(SC) per Yekini Olayiwola Adio, JSC the Supreme Court held inter alia that: “It is a fundamental rule of law that the court will grant an injunction only to support or protect a legal right. If the Applicant has no legal right recognised by law, there is no power to grant an injunction”. I believe that this fundamental rule also covers the field, when it comes to type of interlocutory application made by the Bello and Obiano Counsel. It is clear that, in both cases, they have absolutely no legal rights to protect, since the FHC Abuja is clothed with jurisdiction to hear both matters. After all, some, if not most of the monies they are accused of misappropriating, emanated from the Federal Government which is located in Abuja. 

What legal rights of Yahaya Bello and Willie Obiano exist or run the risk of being violated, by hearing their cases in FHC Abuja? Absolutely none. In Obeya Memorial Specialist Hospital v AGF & Anor (1987) LPELR-2163 per Andrews Otutu Obaseki, JSC, the Supreme Court held inter alia that, the decision of whether or not to grant an interlocutory injunction has to be taken where “the existence of a right or the violation of it or both is uncertain and will remain uncertain until final judgement is given in the action….to mitigate the risk of injustice to the Plaintiff during the period the uncertainty could be resolved, that the practice arose of granting him relief by way of interlocutory injunction”. Again, if we apply this principle to the Bello and Obiano interlocutory applications, there is no reason for the courts to exercise their judicial discretion in their favour, as their rights are not being violated by the venue of their prosecution being at the FHC Abuja. 

Conclusion

Nigerians are exhausted by the activities of unscrupulous politicians and civil/public servants, as we are all paying a heavy price for their corrupt practices with underdevelopment and harsh conditions of living. Of course, we understand that this didn’t just start in the Tinubu administration, but has been going on for decades; but President Bola Ahmed Tinubu’s “Renewed Hope” Agenda implies that Nigerians will be given a more positive outcome in their expectations. This cannot be done, without taking the fight against corruption seriously.

While Mr Obiano submitted himself to the law and is out on bail, Yahaya Bello remains a fugitive. No one can understand why law enforcement is pussyfooting instead of arresting Mr Bello and bringing him before the court of law, while the court seems to be indulging him, despite the fact that he is a fugitive who is also in contempt. It is shocking that Counsel in Mr Bello’s case would also apply for a stay of proceedings in the matter before the FHC Abuja, when Section 306 of ACJA is as clear as crystal that such application isn’t permitted in criminal matters under any circumstances. At the risk of sounding like a broken record, I continue to reiterate, because I cannot over-emphasise the fact that, it has become apparent that it is time to infuse more discipline into the practice of law, both on the side of the Lawyers and Judicial Officers.