the role of law in the promotion of justic1

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THE ROLE OF LAW IN THE PROMOTION OF JUSTICE,ACCONTABILITY AND GOOD GOVERNANCE IN NIGERIA-

Elijah C. Briggs LL.B (1 st Class) BL, LLM (UK)

“The role of law in a free society is that it affordsthe common man and any citizen with opportunity

to seek redress of wrongs, to declare his right to

stand before the court of justice to be done, i.e.

justice that is without blemish based on reason and

good conscience” 1

Before delving headlong into the crux of our imminent discourse, it is

apposite to attempt a tenable definition of three key words which will be

actively instrumental to the elucidation of the topic. Unarguably,

conceptualizing words have often remained ambiguous. In order to ward off

this ambiguity and to balance the concepts in the legal parlance, this paper

shall succinctly discuss operational meanings attached to these concepts

used herein, viz; “Justice”, “Accountability” and “Good Governance”.

One may not be unmindful of the fact that in the course of this noble, albeit

“oratorical” profession, lawyers deal sedulously with choice of words, their

attendant meanings and bogus interpretations which incidentally follow.

Hence the arduous task of defining a word is juxtaposed alongside

intractable challenges, as Ajomo 2 aptly opined

1 Per Pats-Acholonu, JCA in Fawehinmi v Akilu (1994) 6 NWLR (pt 351) 4732 Ajomo: “Of Order and Disorder: The Relevance of International Law”, Inaugural lecture delivered at theUniversity of Lagos on 17 th of January 1984. p. 3

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“so long as definitions are translations of thoughts

into words, they create problems for lawyers. Law

itself is mainly an exercise in controversy and so

long as the teaching of jurisprudence begins in thehypothesis that words have proper meaning except

in the context in which they are used … so

depending upon the speaker’s abstraction, words

are no more than verbal recommendation of what

the speaker feels they are, within the context in

which they are used”.

Having armed ourselves with the aforestated truism, one may inquire, what

then does “Justice” connote? The classical definition evinced by the

Justinian’s Institutes 3 perceives justice as the constant and unceasing will to

render to each one his due. Undoubtedly the word Justice has received a

great deal of attention from lawyers, philosophers and the hoi polloi from all

lands and climes. Society is built and the prescriptive function of law, as a

mode of social control is the concern of rational humans. 4

The ambit of the word “Justice” encompasses acting justly in the distribution

of good and or evil among equals, the curtailing of abuse of power, the

ability of law to adapt to change to meet social development and the rules

that relate to dispute resolution in the legal system. 5 Indubitably theenervating search for a definitive conception of justice has met formidable

3 Bk 1, 1. of a certainty, the institutes’ definition refers directly to the virtue of justice, albeit it provides basic criteria drawing a distinctive dichotomy between moral questions and questions of justice.4 O.F. Emiri, African Search For Justice (Part 1) Ambrose Alli University Law Journal p.695 R.W.M. Dias, Jurisprudence (4 th ed Butterworth 1976) pp.18-19

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challenges, yet seems elusive. Jurisprudential scholars have taken great

strides at taming this mammoth hydra; Ehrlich 6 for example links justice to

just decisions, he asserts thus;

“A just decision is a decision based on groundswhich appeal to a disinterested person: it is a

decision which is rendered by a person who is not

involved in the conflict of interest…”

Within the context of a formal appraisal, justice is synonymous with law i.e.

justice according to law. This is the oft blurted phrase used by lawyers and

judges that justice should be meted to conflicting interest according to law

(this is the form of justice judicial officers are enjoined to observe in the

adjudicating process). 7 However the infusion of the principles of equity in

almost all legal systems as a relevant adjudicatory body of rules is

recognition that justice properly so called must be a sort of symbiosis of

formal and substantive justice. 8

What then would Good Governance imply? The germane litmus test for a

democratic polity is the extent to which it promotes good governance. Jega 9

offers a concise definition of good governance as the responsibility and

responsiveness of public officers (both elected and appointed) to the

governed or electorate. “Responsibility connotes good judgment, a sense of

6 Ehrlich Principles of Sociology of Law (Translated by W.L. Moil (1936)7 See S.290 of the 1999 Constitution of the Federal Republic of Nigeria and 7 th Schedule. That was the viewsubscribed to by Megarry V.C. in Tito v Waddell (1977) Ch 106, 209, when he refused imply anenforceable trust for the benefit of the Banabions, stating their claims can only succeed if permitted by lawand that the court had no jurisdiction on grounds of morality or sympathy to make an award to them

because they have had a raw deal from the British Government8 Jegede M.I. “Principles of Equity (Ethiope Press, Benin City)9 Jega A. (1998) “Sustainable Strategies for popular Empowerment and Good governance Towards aDemocratic Nigerian Society” in Human Dignity: Newsletter of the Human Rights Club, Oct-Dec, pp. 4-6

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fairness, honourable conduct, efficiency and effectiveness, while

responsiveness denotes sensitivity to the wishes, desires and aspirations of

the governed as well as acting in accordance with their dictates.”

Thus the basic, irreducible ingredient of any democratic polity, institution,

structure or relationship is the extent to which it promotes good governance.

Succinctly put, good governance involves, above all, improving the social

and material conditions of the people. The United Nations 10 identified

several attributes of good governance which include an open political system

which encourages an active and vigilant civil society whose interests are

represented within accountable government structures and which ensures

that public offices are based on law and consent etc.

It is pertinent to note that many systems with claims to democracy and many

governments finding their political and constitutional legitimacy in

democracy are not only undemocratic but also anti-democratic in practice. A

host of such so-called democratic systems do not promote good governance;

as a matter of fact, they deliberately work against it 11.

The growing global recognition and awareness of the essence of good

governance is almost being generally perceived as a catalyst for economical,

social and political growth virtually in all nations 12. To this end, Davies 13

10 United Nations (1992) “Poverty Alleviation and Sustainable Development: Goods in Conflict? Report of the United Nations Committee for Development Planning, New York: pp 62-6311 Consider, for example, the Obasanjo administration’s muzzling of ethnic minorities and trade unions over legitimate demands and grievances, as well as the massacre of villagers and the ransacking of the wholecommunities such as Odi and Zaki-Biam during the period of 1999-2003.12 A.G.Alamu (2005) “God and Governance: A Christian Appraisal of Contemporary Nigerian PoliticalSituation”. In God: The Contemporary Discussion, Ago- Iwoye: NASR.13 A.E.Davis (2003) “Reflections on the Imperative of Transparency and Accountability for GoodGovernance” Ilorin Journal of Business and Social Sciences, Vol. 8, Nos, 1& 2

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sees governance as the manner in which power is exercised in the

management of a country’s economic and social development. “Good

governance is the attainment of any worthwhile governmental objectives,

which can only be possible in an environment devoid of rancour , ill-will,strife, struggle, and disdain.”

Similarly, good governance is a sine qua non for achieving a functional and

result oriented goal, with the resultant overriding need, extending the

frontier of welfarism of the government to the governed 14.

Thus, the essential of good governance in Nigerian politics entrenches

political stability and democratic consolidation. This good governance has

the propensity for political vitality and economic plurality, which enhances

choices made by the masses in the polis. However, bad governance is

described as the poor management and low level of development in the

developing world, and the literature on poverty and development has been

enhanced globally on what good governance entails and the ethical problems

encountered by administration in many countries enthroning it 15.

The concept of good governance in the words of scholars like Ramsany in

broad aspect encompasses all aspects of human entity like social, political,

and economic sphere. Likewise Martins observers that:

“Some of the key elements of good governance

include the observance of the rule of law ,human

14 A.G.Alamu (2002) “ Moral Assessment of Students’ Union Politics in Ambrose Alli University,Ekpoma”, Unpublished M.A.Dissertation, University of Ibad an.15 Ibid

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rights, transparent, economic and corporate

governance as well as the active participation of

civil society and other non-state actors in national

affairs” 16

“Accountability” in its distinctive peculiarity refers to the responsibility for

an individual’s action and inaction. The role governing the conduct of

business, government activities, practices and procedures in all transactions

must be known to all and sundry and recognized, and all their

implementations should not hindered by bureaucratic bottleneck 17.

In other words, accountability in governance makes those who deliver

services answerable to the people who finance such services through their

taxes and who use such service. Alamu again asserts that accountability

ensures that elected and appointed government officials render account of

their stewardship and justify their persistent stay in the office.

Thus, in Nigeria, all government activities should be made available and

their means accessible and accounted for appropriately for public

consumption. Through this medium, the citizens, the executive, legislative

and judicial arms of government can exercise their avowed roles and justify

their actions and subsequently gain the support of the civitas.

It would not be out of place for one to presume accountability to imply

transparency. Transparency is a measure for public disclosure system aimed

16 Martins, P. (1997). Statement Prepared for The Development Committee, Ottawa, 22 September 17 ibid

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at delivering services to the masses in the state. Alamu 18 argues that

transparency is further strengthened by measures such as disclosure system

with the recognition of an active and independent media. Indeed,

Transparency in Nigerian governance will therefore rekindle the interest of the people in public affairs, the quality of which can only be greatly

improved through openness and an unhindered flow of information on the

activities of the governance and its agencies. Davis 19 buttresses further that

transparency in the opinion of the commonwealth that enhances public

participation in the public affairs, promotes the accountability of public

agencies and officials and provides a powerful aid in the fight against

corruption.

NIGERIAN CORRUPTION CONUNDRUM

“The legacy of colonial legality, with its

suppression of indigenous economic and political

competition against the state, has fostered elite

domination by means of the state rather than

transparency and political accountability” 20

It is of no moment if and only if one attempts to dispute the claim that

corruption was, is and will continually be the bane of Nigeria’s existence (if left unfettered). It is gravely disconcerting to note that the Nigerian society is

18 A.G.Alamu (2005) Op. Cit. p. 25819 A.E.Davis Op. Cit20 Centre for Institutional reform and the Informal Sector, Governance and Economy in Africa: Tools for

Analysis and Reform of Corruption (IRIS centre, University of Maryland, 1996) p. 9

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today beleaguered with a plague more deleterious and of a calamitous evil in

effect than the dreaded HIV/AIDS pandemic – corruption. We may embark

upon the cumbersome task of offering a lucid clarification of the term but

just to alert us that whatever is proffered, would at best amount to a casualworking definition.

Thus, the word “corrupt” has been defined as “to taint, destroy the purity of;

to debase; to spoil; to bribe.” 21 Corruption on the other hand has been

defined as “the quality of being corrupt; a corrupt action; bribery;

dishonesty; rottenness; impurity.” In Adegbite’s words, corruption is

“moral deterioration, depravity and perversion of

integrity by bribery or favour. In its widest sense

therefore, corruption connotes the perversion of

anything from its original state of purity, a kind of

infection or infected condition... corruption in this

down to earth sense means acting or inducing an

act with the intent of improperly securing an

advantage” 22

Semble, a lexical point of view defines corruption as “ An act done with

intent to give some advantage inconsistent with official duty and rights of

others.” 23 From the statutory perspective, it is hackneyed to note that

corruption is neither defined in the Criminal nor Penal Codes, albeit Section

21 The Chambers Dictionary (1993) p.38322 Lateef Adegbite: Towards The Evolution of a Corrupt-Free Society: The Role and Duties of theCitizenry”23 Black’s Law Dictionary, 6 th Edition, p. 345.

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2 of the Corrupt Practices and other Related Offences Act 24 defines

corruption to include “bribery, fraud and other related offences.”

Be that as it may, Banfield 25 proffers a wider appraisal on the meaning of corruption. To him corruption is the wilful neglect by an agent to faithfully

serve his principal. He further opines that since an agent has a duty of

faithful service to his principal, he must do same as his own; otherwise he

will be personally corrupt if he knowingly, sacrifices his principal’s interest

for his own i.e. he betrays his trust. 26

Corruption like an amoeba is capable of manifesting in various forms.

However some forms are more pervasive, to wit; patronage, bribery,

extortion, influence peddling, fraud, embezzlement and nepotism. 27 This ill

phenomenon is of central pertinence in understanding the problems of

accountability, justice and good governance in Nigeria.

Although corruption is generally acknowledged as the single most important

obstacle to constitutional governance and economic progress, its origin and

growth, as well as international dimensions remain largely enigmatic. 28 The

soul of the Nigerian state lies prostrate, wasted by monumental corruption. 29

The negation of the primacy of the collective interest, bloodshed and inter-

ethnic conflicts, and gross abuses of fundamental rights, regime violence and

state-sponsored assassinations are symptomatic of utter decadence.24 Act No. 6 of 200325 Banfield: “Corruption as a Feature of Government Organisation” (1975) 18 JNL, Law and Econs, p.587.26 ibid27 See http://www . Wilkepedia.ord/wilki/Talk:Political_corruption28 J. F. medard, “Public Corruption in Africa: A Comparative Perspective” Corruption and Reform Vol. 1,

No 2, 1986 p. ii529 Arthur Nwankwo, “Corrupt Practices”. An opening speech delivered during the seminar on corruptionorganized by FEM, Enugu, September 17, 1999.

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http://www/

http://www/



Tragically, one unbeatable hiccup in Nigeria’s gravitational shift towards

self-sustenance has been the nauseating decay of institutional insouciance

and limitless embezzlement. Since independence, one of the many areaswhere we have recorded the highest rate of corruption is the Petroleum

industry. As far back as 1980, the news was rife that N2.8 billion had been

misappropriated from the juicy coffers of the NNPC. It is disconcerting to

note that at the end of the day, the Justice Irikefe Tribunal did not succeed in

unearthing the whereabouts of the looted sum.

In the Daily Times 30 Justice Irikefe is quoted as saying “it is very difficult if

not impossible to determine the volume of crude oil being taken away from

this country because the oil companies make the NNPC oil inspectors

happy… they give them enough of imported beer to drink and while

drinking beer, oil is pumped and lifted out of the country.”

Consequently, we painfully moved from the celebrated cement scandal to

the N300 million fertilizer scandal; metamorphosed from the failed

Operation Feed the Nation to the warped Green Revolution and to the

Structural Adjustment Program fiasco. All through these white elephant

projects the state coffers have been plundered irredeemably while abject

poverty ravages a vast quantum of the populace.

The impudent kleptomania plaguing this nation in the wake and subsistence

of the Fourth Republic doubtless is a dispassionate depiction of the “Giant of

Africa”, to say the least is a parchment on corruption and a scroll on

30 Daily Times, Saturday May 24, 1980

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with its foremost purport as investigating and prosecuting, preventing and

occasioning public enlightenment in relation to corrupt practices and deviant

offenders.

Akin to this momentous feat, the Economic and Financial Crimes

Commission Act 2002 was birthed to stem the inglorious tide of corporate

scandals, fraud and money laundering. Interestingly, the Commission is

charged with the responsibility of enforcing the provisions of the Money

Laundering Act, 1995, The Advance Fee Fraud and Other Fraud related

Offences Act, 1995, The Failed Banks and Other Financial Institutions Act,

1991 as amended, Miscellaneous Offences Act etc.

These legislative cum legal creations have proved efficacious in forestalling

and checkmating corrupt practices in the country. From the indictment and

trial episode of an erstwhile Inspector General of Police to the most

shameful eviction from the Governor’s quarters of a South-South beefy

Governor to the House of Representatives’ scandal which saw the Lady

Speaker receive the left hand of “disfellowship” from her brethren and

culminated in her abdication of the “throne”, just to mention an infinitesimal

proportion.

It has been the vociferous contention of a crop of critics that these are feeble

wars against corruption designed to play a predictable subterfuge. And in thesame vein it is believed that Probe panels and Boards of Inquiry are

theatrical shams and vistas to occasion vindictive cravings.

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THE COURTS AND JUSTICE: THE LITMUS TEST

The court is hallowed and its sacrosanct status has earned it the appellation

“the temple of Justice”. The curious question then is has this temple lived up

to its revered title? In the frantic bid to promote Justice in Nigeria a cursorylook at salient cases will suffice. Thus the impeccable and flawless decision

of the Supreme court in the case of Legal Practitioners Disciplinary

Committee v Gani Fawehinmi 33 is aptly illustrative. The facts being that

the Respondent, a legal practitioner received a letter from the office of the

Attorney-General calling the attention of the respondent to the advertisement

contained in in the “West Africa” magazine of 23 rd March, 1981 and

requesting him to show cause within 14 days why he should not face the

Legal Practitioners Disciplinary Committee on the matter which bordered on

professional misconduct allegedly committed by him in that he engaged in

“advertising, touting and publicity”

The respondent upon a reply of the letter was further directed to appear

before the Committee (with the Attorney-General being the Chairman of the

Committee). The respondent instead went to court and filed a prohibition

application under the Fundamental Rights (Enforcement Procedure) Rules

1979 alleging that his fundamental right to fair hearing under S.33(1) of the

1979 Constitution of Nigeria had been contravened or was likely to be

contravened.

The kernel of his complaint was that the composition of the committee did

not secure the independence and impartiality of the committee in that the

chairman of the committee (the Attorney-General) was both the complainant

33 1985 NWLR (pt 7) pp. 282-452

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and prosecutor, a sheer affront on the sacred doctrine of fair hearing. The

High Court granted the Respondent/Applicants application and prohibited

the Legal practitioners Disciplinary Committee from trying the

Respondent/Applicant.

On appeal to the Court of Appeal, all the five Justices dismissed the appeal

of the Legal Practitioners Disciplinary Committee. Gravely discontented and

dissatisfied by the outcome, they appealed to the Apex court arguing that

that committee was a mere administering authority not amenable to the

extant provisions of S.33(1) of the Constitution and thus not subject to the

principles of Natural justice. The Supreme Court rejected in toto all the

arguments of the Appellants, averring thus; that it is accepted law that basic

procedural and other requirements of the Rules of Natural Justice have to be

observed by every Tribunal or authority which is under a duty to act

judicially. The words of Justice Kayode Eso JSC are spirited as he avers

thus:

“During the period of in-course into judicial and

quasi function, an administrative body must be

bound in process thereof to observe the principles

that govern exercise of judicial functions. Even

God himself did not pass sentence upon Adam

before he was called upon to make his defence”

It is settled law cannot be a judge in his own cause. This is a principle of considerable antiquity. The person to decide the rights and obligations of

two contending parties should not himself be a party to the lis. Where the

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judge is also a party to the lis he violates the sacred maxim of “nemo judex

in causa sua. 34

In his profound erudition Justice Oputa JSC remarked most brilliantly;“the purity of the administration of justice is so

jealously guarded that if there are any

circumstances so affecting a person or body of

persons called upon to determine the rights of

fellow human beings, as to be calculated to create

in the mind of reasonable a suspicion of those

persons’ impartiality; those circumstances in

themselves and by themselves alone, are sufficient

to disqualify the person(s) from adjudicating”

It is germane to point out that the all-embracing principle of fair hearing

embodied in the two Latinisms “Audi Alterem Partem” 35 and “nemo judex in

Causa Sua” 36 is the bedrock of a criminal trial. A criminal trial which

violates this principle is null, void and of no effect. 37As can be gleaned from

the instant case, the law proved an indispensable necessity in the attainment

and promotion of Justice, an emissary of fairness and a custodian of truth in

Nigeria. It is a locus classicus case on Fair hearing in Nigeria and no doubt

remains a robust feat recorded in the annals of legal history.

Another case of coeval vibrancy is that of Gani Fawehinmi v Akilu. 38 In theinstant case it will be overly expedient to trace the path of events which led

34 Per Karibi-Whyte JSC35 Let both sides be heard.36 One cannot be a judge in his own case37 Oluwatoyin Doherty, Criminal Procedure in Nigeria- law and practice, (Ashford colour press) 1990 p.2038 (1994) 6 NWLR (Pt 351)

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to its adjudication. The Late Dele Giwa was a co-founder and Chief

Executive of Newswatch, a popular magazine. On 19 th October 1986 he was

gruesomely murdered by a bomb in his house. The medium through which

he was killed was fascinating and novel at the time and so it evoked publicconcern.

Amid the frenzy the Defendant/Appellant (then at the trial court) within two

weeks prepared an Information charging the Plaintiff/Respondent and Col.

Togun. The Information contained two counts contrary to S. 319 and S. 324

of the Criminal Code 39 i.e. Murder and Conspiracy to commit Murder

respectively. Longe J. ruled that the Information alleging the two offences

against the two accused persons lacked merit and that

“the facts disclosed and proof of evidence directly

or indirectly do not link the appellants in any way

to the offences. It will be an abuse of the process

of court to call them for trial”

The unquenchable verve of the defendant was keenly lit as he prepared a

fresh Information against the two gentlemen upon further investigation and

discovery of “neaveau” evidence. The defendant distributed to daily and

weekly news media, copies of the fresh Information. And the plaintiff’s

claim was founded on the fact that the Defendant not only forwarded the

fresh information to the Attorney-General of Lagos State but that he on thesame day distributed to several media establishments, which w as libelous.

To this allegation the defendant filed no defence, hence an interlocutory

39 CAP C24 Laws of the Federation of Nigeria 2004

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judgment was entered against him and aggravated damages awarded to the

tune of N3 Million.

On appeal by the Defendant/Appellant, Uwaifo JCA upon a laboriousanalysis of the case averred thus;

“the conclusion is inevitable and Justice demands

it, that these appeals must succeed. The decisions

of the learned trial judge are perverse in the sense

that they are replete with errors”

Pats-Acholonu JCA in his brilliant erudition upheld the wings of justice

when he graciously remarked;

“by the same token when a party to a suit has

given all indications that he is desirous nay serious

in contesting the suit and has proceeded by taking

steps to actualize this in fact, the court should be

slow to adjudge any seemingly cautious approachof that party as… may exclude that party from

justice” 40

This case is doubtless an astonishing precedent in our thriving legal system

as it affirmed the right of private persons to institute criminal proceedings in

our temples of justice. The unyielding thirst, unwavering tenacity andinimitable cum importunate zeal with which Chief Gani Fawehinmi pursued

this case to the “letter and spirit” has left a watershed in our corpus juris,

40 Fawehinmi v Akilu (supra) at p.474

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upholding justice on the one hand and bolstering unflinching faith in the

judiciary indeed as the last bastion of hope for the common man.

Consequently, the case of Gani Fawehinmi v Sani Abacha 41 is illuminatingas regards the role of the courts in the promotion of justice. The synopsis of

the case is that on Tuesday 30 th of January, 1996 the Appellant was arrested

by law enforcement agencies. The reason for his arrest was not made known

to him. Through his solicitors the Appellant filed an application in the High

Court seeking the leave of court to enforce his fundamental rights, an

application for which leave was granted.

Thereafter the appellant pursuant to S. 42(1) Constitution of the Federal

republic of Nigeria 1979 and O2 r1 Fundamental Rights (Enforcement

Procedure Rules) prayed the court for reliefs stemming from brazen

violations of his fundamental rights as codified in Ss. 31,32 and 38 of the

Constitution (1979) and Arts 4,5,6,12 of the African Charter on Human and

Peoples Rights (Ratification and Enforcement) Act 42 and is thus illegal and

unconstitutional.

On the essence of human liberty and need to protect same, Pats-Acholonu

JCA convincingly espoused that “ it should be noted that since the end of the

second world war when legal positivism or juridical formalism was made

nonsense of by despotic regimes of Third Reich and Fascist Italy, and theUN Universal declaration of Human Rights was enthroned, there is growing

tendency in most jurisdictions to protect as much as possible the

41 (1996) 9 NWLR (Pt 475) 634-76742 CAP 10 Laws of the Federation of Nigeria 1990

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fundamental right of people in times of peace in particular. There is no

doubt that in times of war or emergency of some sort – like earthquake or

internal insurrection, the public might close their eyes to an enactment of

laws that appear draconic on their face. Such laws if made are to secureand protect the state in times of emergency. There is of course no affidavit

that there is an emergency at the time the appellant was arrested and

detained… does Nigeria understand the concept of freedom in the true sense

having stated that the African charter on Human rights applies to us. When

one talks of Human rights and freedom, one means life, liberty and adequate

protection under the law for one to be left alone to exercise his civil

responsibility including right to dissent within the law… We must therefore

guard zealously and jealously this great heritage and bequeath same to the

generation to come…. We must strive not to wring our hands and look

helpless for truly I say the executive is highly enamoured of Judges who do

not manifest timorous tendencies. In this regard I cannot help but restate

here the immortal words of Sir Winston Churchill when he said “we must

never cease to proclaim in fearless tones the great principles of freedom and

the rights of man, which are the joint inheritance of the English speaking

world and which through Magna Carta, the Bill of rights, the habeas corpus

trials by jury and the English common law which find their most expression

in the Declaration of independence.” Let us by the same token say too that

these find their way in the eloquent expression in our primary law so that we

live in a society ruled by law and not by men ”

THE ROLE OF LAW AND THE QUEST FOR ACCOUNTABILITY

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As afore mentioned accountability in governance makes those who deliver

services answerable to the people who finance such services through their

taxes and who use such service. The viability of the court and its attendant

readiness to crystallize this lofty aspiration has been put to test time and timeagain as we shall soon decipher. Thus in Gani Fawehinmi v President of

the Federal Republic of Nigeria 43 the Appellant as plaintiff in the Federal

High Court (Abuja) instituted an action against the Respondents seeking for

determination of certain pertinent questions including whether any public

officer in Nigeria particularly a Minister of the Federal republic is entitled to

be paid yearly salary outside the salary prescribed by Certain Political,

Public and Judicial Office Holders ( salaries and Allowances etc) Act 44 or to

be paid in foreign currency and whether the authorization by the President of

such payment is not an abuse of power under the Constitution of the Federal

Republic of Nigeria 1999?

This is firmly predicated upon the incontrovertible fact that the third and

fourth Respondents (Dr. Mrs. Ngozi Okonjo-Iweala and Amb. Olufemi

Adeniji) both Ministers of Finance and External Affairs respectively were

being put on an annual basic salary of Two Hundred and Forty-Seven

Thousand US Dollars (S247,000) i.e. About Thirty Six Million Naira

(N36,000,000) and One Hundred and Twenty Thousand US Dollars

(S120,000) i.e. about Seventeen million Naira (N17,000,000) respectively as

opposed to the Statutorily approved Seven Hundred and ninety-Four Thousand and Eighty-Five Naira (N794,085) to which other incumbent

43 (2007) 14 NWLR (Pt 1054) 210-44044 No 6 of 2002

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ministers at the time were made subject to. And this unbelievable act was

approved by the first Respondent (President Olusegun Obasanjo).

The Federal High Court in turf struck out the suit on the ground that thePlaintiff/Appellant had no locus standi . With the dogged determination of

the latter an appeal was made to the Court of Appeal. On whether the

Appellant had locus standi the Court the court markedly asserted “it will

definitely be a source of concern to any tax payer who watches the funds

he contributed or is contributing towards the running of affairs of the

State being wasted when such funds could have been channeled into

providing jobs, creating wealth and providing security to the citizens.

Such an individual has sufficient interest of coming to court to enforce

the law and to ensure that his tax money is utilized prudently.”

The Appeal Court further shed abundant light as to who possesses the power

to determine the remuneration of public officers. It stated most lucidly that a

circumspect appraisal of S.153(1)n of the 1999 Constitution and Part 1 item

32(d) of the 3 rd schedule to the said grundnorm vests in the Revenue,

Mobilization, Allocation and fiscal Commission the power to determine

remuneration appropriate for all political officers. It unequivocally asserted

that any contrary act (as is gleaned from the instant case) is a nullity.

Aboki JCA no doubt drove the point home with infallible precision when hesaid;

“it is a notorious fact that at times this country

employs expatriates with expert knowledge but the

3rd and 4 th defendants are not expatriates but a

21



daughter and a son of the soil who can even on

patriotic grounds offer their services free of charge

in the interest of their fatherland. They should have

declined the offer of a high salary in foreigncurrency which they know or ought to know is a

violation of the provisions of the Constitution and

the Laws of this country. Ignorance of the law is

no excuse.” 45

The instinctive and well thought out decision of the Appeal Court Justices

brings to the fore the words of scripture 46 which pronounces “righteousness

and justice are the foundations of your throne”. The courts indubitably lived

up to its creed and gave a robust fillip to the attainment of true

accountability and transparency in this nation where the ubiquitous notion

signals the exact antithesis of these timeless virtues.

The case of Gani fawehinmi v Inspector General of Police 47 is insightful

and germane to our discourse. The facts leading to the dispute out of which

this appeal arose is traceable to the fact that a verifying Affidavit in support

of the originating summons filed by the Applicant revealed that Mr. Bola

Tinubu who contested and won the 1999 Governorship election in Lagos

State, in the course of showing eligibility for the election made false

declarations and statements as gleaned from tenuous police investigations.

A perusal of the affidavit evidence of the lower court revealed clearly thatwhile the applicant wanted the lower court to make an order compelling the

respondents to investigate the allegations of a criminal nature against Mr

45 See footnote 43 at p.34346 The Holy Bible, Psalm 89:1447 (2000) 7 NWLR (Pt 665)

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Bola Tinubu, the respondents took the view that S.308 of the 1999

Constitution of the Federal republic of Nigeria will be breached if they

continue with the investigations. The lower court acceded to the request of

the respondents as to the manifest effect of S.308 and thus prevented anyinvestigations whatsoever.

On appeal however, the predominant issue which pervaded the corridors of

justice was whether S.308 confers immunity from police investigation and a

lucid interpretation to the rather inscrutable provision. The Appeal court

without mincing words stated that S.308 does not shield or protect the

persons covered under S.308(3) from police investigation. In the words of

the court “…by employing “civil or criminal proceedings” the draftman

could not have been referring police investigation”.

The police in trying to discover whether, or by whom an offence has been

committed, is entitled to question any person, whether suspected or not from

whom, it is believed that useful information may be obtained. The star-

studded words of Aderemi JCA lays this issue to rest when he said

conclusively;

“let me say in closing treatment of the two issues

formulated for determination by the appellant that

public office is public property. And because that

office inures to the benefit of the society it mustremain sacrosanct. It follows that all those who

aspire or are called upon to occupy such offices

must like Caesar’s wife, be above board. It is not

only important but it is divinely commanded that

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all holders of public and even private offices which

offices have to relate with society must, by their

conduct, thoughts, actions and appearance, sanctify

such offices. In answering the question which I posed above I have no hesitation in saying that the

constitutional provision which confers immunity

from prosecution on the Governor cannot be

breached if the governor is investigated.” 48

This momentous proclamation has bolstered the already towering posture of

the Judiciary and oiled the wheel of the law in its enervating gravitation

towards the installation of true governance, transparency, probity and

accountability in our great nation. Like a heavy stone dropped into the still

waters, the ripple effect of this judgment has opened a vista through which

shady and shoddy acts of public office holders can be effectively

checkmated. It is with grandiose elation that it be mentioned that this judicial leeway occasioned and empowered the birth of the Economic and

Financial Crimes Commission which today has served as a proactive

watchdog in the combat against the seemingly intractable corruption that has

hitherto held our dear nation in eternal restraint. This is not an offshoot of

laziness, laxity and a shrug of indifference but a determined affront on

society’s greatest ills via the instrumentality of the law.THE LAW AND THE PROMOTION OF GOOD GOVERNANCE

As earlier pointed out, good governance could be seen as the responsibility

and responsiveness of public officers whether elected and appointed, to the

48 Ibid at p.530

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governed or electorate. Responsibility here implies good judgment, a sense

of fairness, honourable conduct, efficiency and effectiveness, while

responsiveness could mean sensitivity to the wishes, desires and aspirations

of the governed as well as acting in accordance with their dictates. Time andagain the Nigerian hoi polloi have been treated unconscionably and had their

lofty hopes and aspirations reduced to a mere illusion.

What role has the law played in mitigating this harshlean reality, a curious

mind may ponder. In the case of Independent National Electoral

Commission v Musa, Fawehinmi and ors 49 the court had a golden

opportunity to prove its mettle. The civilian government inaugurated in May

1999, had three Political parties, viz Peoples’ Democratic Party (PDP), All

Peoples Party (APP) and Alliance for Democracy (AD). In 2002,

Independent National Electoral Commission (hereinafter referred to as

INEC) saw the need for the registration of more political associations as

political parties. The commission set the ball rolling by setting up guidelines

which were purportedly set up in the exercise of the power conferred on it

by the Constitution of the Federal republic of Nigeria and the electoral Act

2001.

INEC put up the necessary advertisements in the national papers and

political associations responded by applying for registration under the

guidelines. In applying the guidelines INEC found only three registrable as political parties. The Respondents who were Plaintiffs in the Federal high

court did not like the action of INEC. They approached the courts and

sought fourteen (14) declarations centred on INEC’s guidelines.

49 (2003) 3NWLR (Pt 806)

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They felt that the guidelines were a nullity as they flagrantly flouted S.222

Constitution (1999). The learned trial judge, Adah J. “met the Respondents

some way; less than half way” and granted only about five (5) of the reliefssought. Dissatisfied with the judgments the Respondents appealed to the

Court of Appeal. The Court upheld the Respondents’ appeal and granted all

the reliefs sought by the respondents. Aggrieved by the outcome the

appellants approached the Supreme Court.

The full court of the Supreme Court, in a unanimous decision allowed the

appeal in part, but upheld substantially the judgment of the Court of Appeal.

It is gladdening to note that once again the Apex court’s judgment is

monumentally historic in that it widened unprecedently the political

landscape of Nigeria. Flowing from this landmark decision about 24 more

political parties were registered by INEC at the time and subsequently

another 20 were also added to make the sum about 50 which conducted the

2007 general elections.

CONCLUSION

Without a scintilla of doubt or iota of uncertainty, the law has stood firm andunfettered in the quest for the promotion and furtherance of good

governance in this nation. The instrumentality of the courts is novel, their

insight and foresight is simply ingenious. The Nigerian state indeed

deserves a society brimming with justice, accountability and good

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governance as these ageless virtues are inextricably linked to the attainment

of a prosperous, harmonious and respectable society.

Justice in its real sense must not be a one way traffic, nor a two way traffic, but a three way traffic. Justice for the litigant, justice for the victim and

justice for the society. Very few men of character and moral rectitude can

tread the path Chief Gani Fawehinmi (SAN) strove so hard to traverse. His

sheer doggedness and stark determination in the usage of the law to amend

society’s anomalous posture is to say the least loudly commendable. Like

the words of scripture, “a virtuous woman, who can find”, I ask, another

Gani, who can be?

the role of law in the promotion of justic1

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