By Johnmary Chukwukasi Jideobi,
Esq.
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EXORDIUM:
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The emergence of insurgency and terrorism on the geographical
landscape of the Nigerian Nation has yielded an avalanche of
hitherto non-existent vocabulary in the country’s criminal and
human rights law jurisprudence. While the mindless erosion of
fundamental rights of citizens signposts the operation of
insurgents and terrorists, the various approaches adopted for
curtailing and or ending the startling impunity of these daredevil
elements by state-actors have provoked wide-ranging intellectual
debates principally orbiting around the elasticity and contours of
the fundamental rights embedded in Chapter Four of the amended 1999
Constitution of the Federal Republic of Nigeria [henceforth in this
enquiry called the Constitution]. To squire up with the confounding
daredevilry of the insurgents/terrorists, the National Assembly
enacted into law the Terrorism Prevention Act,
2010 [henceforth referred to as the TPA in this
discuss] which was subsequently amended in 2013. The TPA, among
other provisions, made far-reaching provisions especially on the
issues of hot pursuit, arrest, detention, proscription and
prosecution of terrorist suspects. Section 2 of the TPA outlines
the procedures for the proscription of a group as a terrorist
outfit with pervasive legal consequences on the members of the
proscribed group and their affiliates that transcends the
territorial boundary of Nigeria. Following the proscription of the
Indigenous People of Biafra [called the IPOB henceforth in this
article] as a terrorist group by the Federal High Court of Nigeria,
the proscription order has expectedly ignited divergent reactions
from notable legal minds in the country especially as to the
propriety or otherwise of the perceived permanent nature of the
Court’s Order [even though ex-parte] which appears to have
drowned the constitutional right to fair hearing of the IPOB as
consecrated in Section 36 (1) of the
Constitution. The present academic enquiry is
targeted at interrogating the constitutional validity of both the
order proscribing the IPOB and its legislative ancestry [the TPA]
from which the order flowed. Implicit in this first basis of this
enquiry is the second that seeks to determine to what extent the
Nigerian State is bound by the indubitable constitutional
prescriptions as to human rights adherence when confronted with
terrorism related matters. Before proceeding into the crux of this
engagement, it is not out of place to preface our discussion with a
survey of the factual antecedents that congregated in yielding the
ensuing extrapolations.
FACTUAL BACKGROUND:
On the 20th day of September, 2017, in a suit marked
FHC/ABJ/CS/871/2017: Attorney-General
of the Federation vs. Indigenous People of Biafra
[IPOB], the Federal High Court of Nigeria, per
Kafarati, Ag. C.J., while proscribing the IPOB, declared, inter
alia, as follows:
AN ORDER of this Honourable Court proscribing the
existence the Respondent [The Indigenous People of Biafra] in any
part of Nigeria, especially in the South-East and South-South
Regions of Nigeria, either in groups or as individuals by whatever
names they are called and publishing same in the official gazette
and two (2) National Dailies.
AN ORDER restraining any person or group of persons
from participating in any manner whatsoever in any form of
activities involving or concerning the prosecution of the
collective intention or otherwise of the Respondent [Indigenous
People of Biafra] under any other name or platform however called
or described is granted.
In proceeding to examine the thrust of the issues in
controversy, we make haste to state that the scope of the present
enquiry is not commodious enough as to accommodate [within its
canopied ambience] the politically besmirched question of whether
or not the cumulative of the activities of the IPOB actually
warranted the designation of the group as a terrorist group. In
other words, the proximate impulsion of this exercise is not the
determination of the question whether or not the Honourable
Attorney-General of the Federation ought to have activated the
provisions of Section 2 of the TPA against the IPOB but the
constitutional validity, vel non, of the said provision
and the consequential proscription order flowing therefrom.
THE THRUST:
The entirety of our investigation springs forth from and zeros
in on Section 2 of the TPA. That is the
cynosure of this enterprise. It is the opening line and the bottom
line. This being so, we therefore move to begin from the beginning
by recasting this all-important Section 2 of the
TPA:
- Where two or more persons associate for the purpose
of or where an organization engages in—
(a) Participating or
collaborating in an act of terrorism;
(b) promoting,
encouraging or exhorting others to commit an act of terrorism;
or
(c) setting up or
pursuing acts of terrorism, the judge in Chambers may on an
application made by the Attorney General, National Security Adviser
or Inspector General of Police on the approval of the President;
declare any entity to be a proscribed organization and the notice
should be published in official gazette.
(2) An order made under
sub-section (1) of this section shall be published in the official
gazette, in two National newspapers and at such other places as the
judge in Chambers may determine.
Section 2 of the TPA has five (5) subsections.
Subsections (1) and (2) thereof adequately circumscribe the object
of our enquiry and we shall limit ourselves to them.
ANALYSIS:
From the above provisions, three important issues have
crystalized for our consideration and they are as follows;
- The decision to bring an application before the Court based on
whether or not an organization is participating or collaborating in
an act of terrorism, promoting, encouraging or exhorting others to
commit an act of terrorism; or setting up or pursuing acts of
terrorism lies with either the Honourable Attorney-General of the
Federation, the National Security Adviser or the Inspector-General
of Police. - The application to be made to the Court by any of the potential
applicants must be preceded by the approval of the President. - In Chambers, the Judge before whom the application is brought
may declare any entity to be a proscribed organization.
For good reasons, it is to be noted that the above provision of
the TPA has been activated by the Federal Government of Nigeria
only on two different occasions since the TPA was midwifed by the
National Assembly. The first instance was against the members of
the Boko Haram sect operating in the North-Eastern part of Nigeria
while the second occasion was in September, 2017 against the IPOB
operating mainly in the South-Eastern/South-Southern part of
Nigeria. It is to be admitted here that the protestations that
greeted the proscription of the IPOB was never witnessed when Boko
Haram was proscribed. To make the point clearer, unlike the Boko
Haram, the IPOB is now back in court challenging the proscription
order of the Court which they seek to have the Court set aside upon
the twin principal grounds, among others, of the IPOB allegedly not
being a juristic person and the purported suppression of facts by
the Federal Government of Nigeria which misled the Court into
issuing the proscription Order. We shall now clinically examine the
issues on their individual merit.
THE JURISPRUDENCE OF EX-PARTE
ORDER:
That the Honourable Attorney-General of the Federation initiated
the two proscription applications ex-parte [without
putting the defendant(s) on notice] seems to have been dictated by
the tenor of the TPA itself which stipulates that such application
be taken by “the Judge in Chambers”. From practice
experience, whenever the Rules of any Court demands that an
application is to be taken by “the Judge in Chambers”,
most likely that application is one made ex-parte as the
other party would not be put on notice, Allport v.
Securities Corporation (1895) 64 L.J. CH 491. All
orders of the Court given in consequence of an ex-parte application
are ex-parte orders, Beecham Croup Ltd. v. Bristol
Laboratories Pty Ltd. 118 C.L. R. 61X, 623. More
importantly, ex-parte orders have limited life span and cannot
operate in perpetuity, Re Johnson ex parte Abrams
(18X4) 50 LT184. An order is said to be
ex parte when it is granted by a judge at
the request of and for the benefit of one party only, without
notice to or contestation by the other party, Beese v.
Woodhouse (1970) 1 A.E.R. 769 at 773. Etymologically,
ex parte is a Latin adjective meaning “for one party,” referring to motions, hearings or
orders granted on the request of and for the benefit of one party
only. This is an exception to the basic rule of court procedure
that both parties must be present at any argument before a judge,
and to the otherwise strict rule that an attorney may not notify a
judge without previously notifying the opposition. Ex parte matters
are usually temporary orders (like a restraining order or temporary
custody) pending a formal hearing or an emergency request for a
continuance. [See http://dictionary.law.com/Default.aspx?selected=696[1]]. Ex parte order is made
for a short duration and in making it the court should exercise
great care in not granting the applicant a favour that would turn
out to be a great injustice to the respondent, Global
Medical Care (UK) Ltd. & Ors. v. Medicair (west africa) Ltd. &
Anor. (1997) LPELR-6296(CA); G.M.C. (UK)
Ltd. v. Medicair WA Ltd. (1998) 2 NWLR (Pt.536). No
wonder most Rules of Court provide that the ex-parte order abates
after fourteen (14) days of making the order. In this connection,
Order 26 Rule 12 (1) and (2) of the Federal High Court
(Civil Procedure) Rules, 2009 provides as
follows:
(1) No order made on motion ex parte shall last for more
than fourteen days after the party or person affected by the order
has applied for the order to be varied or discharged or last for
another fourteen days after application to vary or discharge it has
been argued.
(2) If a motion to vary or discharge an exparte order is not
taken within fourteen days of its being filed, the exparte order
shall lapse.
The jurisprudential foundation for the entertainment of ex-parte
applications and grant of ex-parte orders [which is an
extraordinary jurisdiction being exercised] by the Courts appear to
have been laid down by Lord Griffith C.J. [in Thomas
Edison Ltd. v. Bullock (1912) 15 C.L.R. 679, at p.
68I] as appeared in this effulgent passage of
venerable antiquity:
“There is a primary precept governing the administration of
justice, that no man is to be condemned unheard; and therefore, as
a general rule, no order should be made to the prejudice of a party
unless he has the opportunity of being heard in defence. But
instances occur where justice could not be done unless the
subject-matter of the suit were preserved, and if that is in danger
of destruction by one party, or if irremediable or serious damage
be imminent, the other may come to the court, and ask for
interposition even in the absence of his opponent, on the ground
that delay would involve greater injustice than instant
action.”
There is a striking convergence of juristic views tending to
support the inflexible prescription of the law that ex-parte orders
should be most sparingly made against the backdrop of the avalanche
of abuses which this extra-ordinary jurisdiction of the Courts has
been subjected to by both lawyers and Judges. Leading the pack in
warning against the dangers inherent in ex-parte order is the
Nigerian Supreme Court. In Kotoye v C.B.N. (1989) 1
NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated
as follows on the dangers of ex-parte orders;
“Above all, this Court ought to take notice of the numerous
cases of abuse of ex-parte injunctions that have come up in recent
times. The operation of a bank has been halted on an ex parte order
of injunction, granted to a person who had been removed as a
director of the bank. Installation ceremonies of chiefs have been
halted in the same way even though the dispute had been dragging on
for years. The convocation ceremony of University has been halted
on an ex parte application by two students who failed their
examinations. As the courts cannot prevent such applicants from
exercising their constitutional rights by stopping such
applications, they can, and ought at least see that justice is done
to the victims of such ex parte applications and orders by ensuring
that the applicant fully undertakes to pay any damages that may be
occasioned by any such order which may turn frivolous or improper
in the end.”
In that same judgment, Karibi-Whyte, J.S.C. said at page
465:
“Although an ex parte application for injunction can be
made, the court may refuse to make the order sought where the
interest of justice demands that the other party to be affected
ought to be put on notice, or it will be contrary to the general
provisions of the law or inconsistent with the interest of
justice.”
Uwaifo, J.C.A. in Okechukwu v. Okechukwu (1989) 3
NWLR (Pt. 108) 234, in berating the abuse of ex-parte
Orders by lawyers and Judges had this to teach us:
“It is most disturbing that the use of ex-parte injunction
by some judges cannot be supported in any measure either on the
applicable principles or on the facts. They do not seem to advert
to the need for caution in the exercise of that extraordinary
jurisdiction. They appear to give impression that the discretion is
so personal that it does not matter if others see it as a means of
inflicting undeserved punishment and hardship on another party or
other persons. It has again become necessary to issue a reminder
that even where everything points favourably to the granting of an
ex-parte injunction, there is always this need to make its life
very short, and indeed for an undertaking by the person who obtains
it” See also Fenner v. Walson (1893) & Ch. 656.
Expressing his utter displeasure over the same issue, Ubaezonu,
J.C.A. also articulated the same view in Okafor v.
Onedibe (2003) 9 NWLR (Pt. 825) at 415, where he
said:
“The reason for frowning on ex-parte order by this court is
clear. There is no justice in making an order behind a party when
no papers for such an order are served on him. Such orders make the
court look small. They must be avoided”.
In a tone of finality, the Court of Appeal in the case of
Asogwa v. Abel Chukwu (2003) 4 NWLR (Pt. 811)
540 intoned as follows:
“A practice which has acquired the force of law is that
orders of ex-parte injunctions should be discouraged”.
The Nigerian Courts, like other commonwealth Courts which apply
equitable remedies in cases brought before them, have admirably
warehoused a robust corpus of what may be termed “the
jurisprudence of ex-parte order.”
What emerges from our intimate reading and understanding of all
binding authorities on the point is the ineluctable view that
ex-parte orders [such as the proscription Order under the TPA] pose
a dangerous threat to the fair hearing right trenchantly
consecrated by Section 36(1) of the amended 1999
Constitution of the Federal Republic of Nigeria
[henceforth in this article called the Constitution] which is the
fons et origo [the source and origin] of all our laws. The
inexorable question germinating from this extrapolation is whether
Section 2 of the TPA is not in conflict with the combined
provisions of Sections 36(1) and 1 (1) & (3) of the Constitution
hence invalid?.
FAIR HEARING RIGHT:
To turn the full circle, it has become necessary to remind us
that Section 36(1) of the Constitution consecrates the irrefragable
right to fair hearing in this lucid language;
In the determination of his civil rights and obligations,
including any question or determination by or against any
government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality.
THE PURPORT:
Barrels of ink have flowed from the highest Bench in Nigeria in
giving life to this sacrosanct provision. Akinfe v. The
State (1988) 3 NWLR (pt. 85) 729; There is no doubt
that Section 36(1) encapsulates the twin
pillars of natural justice which, in the Latin heydays of the law,
are expressed as: nemo judex in causa sua [no man should
be a Judge in his own cause] and audi alteram partem
[please hear the other party]. Audu v FRN (2013) LPELR
-19897 (SC) 13. More importantly, the wisdom of our
courts has insisted that this particular provision must be
expansively interpreted, Bamgboye v. University of
Ilorin [1999] 10 NWLR (Pt. 622) 290, 333;
Adebisi v State (2014) LPELR -22694 (SC) 40;
A-C. Per Nweze, J.S.C. (P. 24, Paras. A-C). Under no
circumstance shall this right be denied a party for when the
inviolate principles ingrained therein are departed from, ‘justice
is but a hoax’, Emeka vs. Okoroafor [2017] 11 N.W.L.R.
(Pt. 1577) S.C. 410, per Eko, J.S.C. Emphasizing the
ubiquity of this fair hearing right, the ebullient Nweze, J.S.C.,
in Kanu v. State (2017) LPELR-42101(SC)
made this charming revelation:
Instructively, this Court in cases too numerous to be cited
here, has endeavoured to “give to individuals the full measure of
the fundamental rights and freedoms referred to.” In particular,
its attitude to the fair hearing provisions has been to seek after
the highest possible ideal of justice and fairness.
Little wonder then that the law has long taken the undisturbed
view that once there is a breach of the right of fair hearing, the
whole proceedings in the course of which the breach occurred and
the decision arrived at by the Court become a nullity.
Yusuf v State (2011) 18 NWLR (Pt. 1279) 853 at
870; Effiom v State (1995) 1 NWLR (pt
373) 507; Madu v State (1997) 1 NWLR (Pt.
482) 386. In ONUWA KALU v. THE STATE
(2017) LPELR-42101(SC), Nweze J.S.C. gave a
far-reaching insight into the entire purport of Section 36(1). For
its beneficial impact on the fortune of our discussion, we take the
liberty of this exercise to quote his leading judgment in
extensor;
This, unarguably was the context that yielded this Court’s
opinion in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E that:
Human rights in our written Constitution mark a standard of
behavior which we share with all civilized countries of the word.
Since the United Nations Universal Declaration of Human Rights in
1948, though it is still left for various member nations to
determine which rights from the plethora of rights then declared
they would wish to incorporate into their domestic laws, once
incorporated, their application lose the character of insular
isolationism. Rather they assume a universal character in their
standard of interpretation and application. One of those universal
characters of their breach is that, in case of a right to fair
hearing, once it is duly established that it has been breached in a
judicial proceeding, it vitiates the proceeding. If therefore, I
find that it was breached in this case, I shall have no alternative
but to allow the appeal. See- Michael Uda Udo v. The State (1988) 3
NWLR (Pt. 82) 316; Galas Hired v. The King (1944) A.C. 149; Dixon
Gokpa v. IGP (1961) All NLR 423; R v. Mary Kingston 32 C. App. R.
183; and Godwin Josiah v. The State (1985) 1 NWLR (pt 1) (sic). And
fair hearing in this respect compendiates not only compliance with
the two rules of natural justice – audi alteram partem and nemo
judex in Causa sua. It entails complying with all the provisions of
that section of the Constitution. It also entails doing, during the
course of the trial, all things which will make an impartial
observer leaving the Court room to believe that the trial has been
balanced and fair to both sides to the trial. From its tenor,
therefore, the Court is required to conduct the trial or hearing of
a case with all fairness to both parties to the suit and without
bias or partiality in favour of, or against either party. That is
the rationale for the prescription that a complaint of breach of
fair hearing is usually against the Court or Tribunal, whether the
parties before the Court were afforded equal opportunity to fully
ventilate their grievance. Okanlawon v State (2015) LPELR-24838
(SC) 52-53; E-B; Peters Pam and Anor v Mohammed and Anor (2008) 5-6
SC (pt.1) 83; Deduwa v Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.
Such is its primacy in our administration of justice that no
decision can be regarded as valid unless the trial Judge or Court
has heard both sides in the conflict. State v Onagoruwa (1992)
LPELR -3228 (SC) 33; D-E; Deduwa v. Okorodudu (supra). This test of
fair hearing applies once a trial has commenced, after issue has
been joined, State v Onagoruwa (supra); nay more, it applies from
the beginning to the end of the trial. Oyewole v Akande and Anor
(2009) LPELR- 2879 (SC) 36-37; Deduwa v. Okorodudu (1976) 9 -10 SC
329; News Watch Comm. Ltd. v. Attah (2006) 12 NWLR (pt 993) 144; A.
G Rivers State v. Ude (2006) 17 NWLR (pt 1008) 436. It is this
logic that yielded the reasoning in the decisions of this Court:
decisions which are remarkable for their unanimity on the point
that it [that is, fair hearing] imposes an ambidextrous standard of
justice in which the Court must be fair to both sides of the
forensic conflict. Ndu v. The State [1990] 7 NWLR (pt.164) 550,
578; Ekpeto v Wanogho [2005] All FWLR (pt 245) 1191, 1203;
Amamchukwu v FRN [2009] All FWLR (pt 465) 1672, 1679. It therefore
does not anticipate a standard of justice which is biased in favour
of one party but prejudices the other. Ekpeto v Wanogho (supra).
Above all, it is not a technical doctrine, but one of substance,
Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14 -15; Kotoye v C.B.N (1989)
1 NWLR (Pt. 89) 418, 448. The touchstone for determining the
observance of fair hearing in trials is not the question whether
any injustice has been occasioned on a party due to want of
hearing. It is rather the question whether an opportunity of
hearing was afforded to parties entitled to be heard. J.C.C. Inter
Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu v. FRN (2009)
LPELR -455 (SC) 11-12. It is thus outrageous to deny a party an
opportunity of hearing, Onyeneh v. Egbuchula (1996) 5 NWLR (pt.
448) 255, 265, Gyang and Anor v COP, Lagos State and Ors (2013)
LPELR -21893 (SC) 12- 13; A.R v. Electricity Joint Commission
(1968) NMLR 102; Adeyemi v. A.G. Federation [1984] 1 SCNLR
525.”
I entirely agree. Indeed, one could not have done better in this
enchanting array of juristic expatiation.
SUMMATION:
The agglomeration of all the analysis so far advanced, festooned
with entrancing galaxy of judicial authorities, affords us with the
jurisprudential beacons in arriving at the inevitable conclusion
that the Proscription Order of the Federal High Court sanctioned
under Section 2 of the TPA bears many dead wounds on its face,
Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14
-15 just as the Section 2 of the TPA from which the
order flows is equally standing on a wobbly wicket,
Onyeneh v. Egbuchula (1996) 5 NWLR (pt. 448)
255. This is because, within the wide domain of the
law on fair hearing, Courts of law are without powers to make
ex-parte order with a tenor of perpetuity as if eventuating from
the merit of the case after a plenary hearing, Kotoye v
C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. Such a strange
order is redolent with raw injustice, State v Onagoruwa
(1992) LPELR -3228 (SC) 33 and does not resonate with
the peremptory dictates of natural justice, Galas Hired
v. The King (1944) A.C. 149. This can only be so
since the weight of all existing authorities, Bakare v
L.S.C.C. (1992) 8 NWLR (pt.266) 641, lean heavily
against the making of such order, Ekunola v CBN (2013)
15 NWLR (pt. 1377) 224. Mention must be made at this
juncture that the tirade of this discussion is neither directed at
the person of the Judge who made the proscription order nor at the
Honourable Attorney-General of the Federation [AGF] who set the law
in motion ab initio. This is because, the presiding Judge
merely gave effect to the law [the TPA] as invoked and presented to
him by the AGF. After all, the TPA is an existing law which a Judge
is bound to enforce until successfully challenged and set aside. In
this regard, the dictum of the Supreme Court in Federal
Republic of Nigeria v Alhaji Mika Anache & Others (2004) 14 WRN
1-90 61 comes to mind. Therein, Tobi, J.S.C. [beatae
memoria] forcefully stated thus;
An academic or scholarly criticism of the greatest learning
of an existing law does not wipe out the existing law. And the
courts are bound to interpret the existing law and not a critique
of it
What is more, the Supreme Court itself has conceded the right of
interrogating its pronouncements in legal write-ups to scholars as
affirmed by Nweze, J.S.C. in Emeka vs. Okoroafor
[supra]. Listen to this:
Scholars, undoubtedly, relishing their liberty under the
well-cherished canon of academic freedom, have the right to
interrogate any judicial pronouncement. Interestingly, this Court
has responded, constructively, to such criticisms of its judgments
in law journals. For example, in Abioye v Yakubu (1991) 5 NWLR (pt
) 130, this Court acknowledged that:
“[a]academic writers in various Law Journals have criticized
the approach of the Courts in the interpretations of
statutes]
What we have just done is to interrogate the proscription order
of the Federal High Court under the TPA and the constitutional
validity, vel non, of the Section 2 of the TPA itself.
END:
Certainly, it is now clear that the National Assembly, in
enacting the impugned Section 2 of the TPA exceeded its legislative
competence by attempting to denude the sacred fair hearing right
enshrined in Section 36(1) of the
Constitution which admits of no derogation.
They have no constitutional warrant for such legislative
aberration, Musa vs. INEC (2003) 3 NWLR (Pt.806)72. 2,
(2003) 1 S.C (Pt.I) 106. Terrorism is a grave offence
in every civilised clime. Being labelled a
“Terrorist” presupposes that you have been tried
and found guilty of the offence of terrorism by a court of
competent jurisdiction. The National Assembly [nay the TPA] goofed
by attempting to proclaim any person or group of persons
“terrorist” or “terrorist group” by an ex-parte order without a
proper criminal trial thereby sidestepping that time-hallowed
process of determination of the guilt or innocence of a criminal
suspect sanctioned by the Constitution itself. The TPA punched
above its weight. No doubt, it is a constitutional taboo, if not a
legislative apostasy, that its victims [such as the IPOB] ought to
put squarely before the Court for even a state organ [such as the
National Assembly] is without powers to bludgeon the fundamental
rights of citizens, F.R.N. vs. Ifegwu (2003) 15 NWLR
(Pt. 842) 113 at 185.
Challenging squarely the constitutionality of the
Section 2 of the TPA will serve a broader
cause and assure composite justice for all persons bound by the
amended 1999 Constitution of the Federal Republic of Nigeria.
Indeed, nobody is excluded from the beneficial right to fair
hearing guaranteed by the laws of our land. I find here a
convenient place to stop.
BY JOHNMARY CHUKWUKASI JIDEOBI,
Esq.
The author may be reached on: 08131131942 or through:
joannesmaria2009@yahoo.com[2]
By Johnmary Chukwukasi Jideobi,
Esq.
EXORDIUM:
The emergence of insurgency and terrorism on the geographical
landscape of the Nigerian Nation has yielded an avalanche of
hitherto non-existent vocabulary in the country’s criminal and
human rights law jurisprudence. While the mindless erosion of
fundamental rights of citizens signposts the operation of
insurgents and terrorists, the various approaches adopted for
curtailing and or ending the startling impunity of these daredevil
elements by state-actors have provoked wide-ranging intellectual
debates principally orbiting around the elasticity and contours of
the fundamental rights embedded in Chapter Four of the amended 1999
Constitution of the Federal Republic of Nigeria [henceforth in this
enquiry called the Constitution]. To squire up with the confounding
daredevilry of the insurgents/terrorists, the National Assembly
enacted into law the Terrorism Prevention Act,
2010 [henceforth referred to as the TPA in this
discuss] which was subsequently amended in 2013. The TPA, among
other provisions, made far-reaching provisions especially on the
issues of hot pursuit, arrest, detention, proscription and
prosecution of terrorist suspects. Section 2 of the TPA outlines
the procedures for the proscription of a group as a terrorist
outfit with pervasive legal consequences on the members of the
proscribed group and their affiliates that transcends the
territorial boundary of Nigeria. Following the proscription of the
Indigenous People of Biafra [called the IPOB henceforth in this
article] as a terrorist group by the Federal High Court of Nigeria,
the proscription order has expectedly ignited divergent reactions
from notable legal minds in the country especially as to the
propriety or otherwise of the perceived permanent nature of the
Court’s Order [even though ex-parte] which appears to have
drowned the constitutional right to fair hearing of the IPOB as
consecrated in Section 36 (1) of the
Constitution. The present academic enquiry is
targeted at interrogating the constitutional validity of both the
order proscribing the IPOB and its legislative ancestry [the TPA]
from which the order flowed. Implicit in this first basis of this
enquiry is the second that seeks to determine to what extent the
Nigerian State is bound by the indubitable constitutional
prescriptions as to human rights adherence when confronted with
terrorism related matters. Before proceeding into the crux of this
engagement, it is not out of place to preface our discussion with a
survey of the factual antecedents that congregated in yielding the
ensuing extrapolations.
FACTUAL BACKGROUND:
On the 20th day of September, 2017, in a suit marked
FHC/ABJ/CS/871/2017: Attorney-General
of the Federation vs. Indigenous People of Biafra
[IPOB], the Federal High Court of Nigeria, per
Kafarati, Ag. C.J., while proscribing the IPOB, declared, inter
alia, as follows:
AN ORDER of this Honourable Court proscribing the
existence the Respondent [The Indigenous People of Biafra] in any
part of Nigeria, especially in the South-East and South-South
Regions of Nigeria, either in groups or as individuals by whatever
names they are called and publishing same in the official gazette
and two (2) National Dailies.
AN ORDER restraining any person or group of persons
from participating in any manner whatsoever in any form of
activities involving or concerning the prosecution of the
collective intention or otherwise of the Respondent [Indigenous
People of Biafra] under any other name or platform however called
or described is granted.
In proceeding to examine the thrust of the issues in
controversy, we make haste to state that the scope of the present
enquiry is not commodious enough as to accommodate [within its
canopied ambience] the politically besmirched question of whether
or not the cumulative of the activities of the IPOB actually
warranted the designation of the group as a terrorist group. In
other words, the proximate impulsion of this exercise is not the
determination of the question whether or not the Honourable
Attorney-General of the Federation ought to have activated the
provisions of Section 2 of the TPA against the IPOB but the
constitutional validity, vel non, of the said provision
and the consequential proscription order flowing therefrom.
THE THRUST:
The entirety of our investigation springs forth from and zeros
in on Section 2 of the TPA. That is the
cynosure of this enterprise. It is the opening line and the bottom
line. This being so, we therefore move to begin from the beginning
by recasting this all-important Section 2 of the
TPA:
- Where two or more persons associate for the purpose
of or where an organization engages in—
(a) Participating or
collaborating in an act of terrorism;
(b) promoting,
encouraging or exhorting others to commit an act of terrorism;
or
(c) setting up or
pursuing acts of terrorism, the judge in Chambers may on an
application made by the Attorney General, National Security Adviser
or Inspector General of Police on the approval of the President;
declare any entity to be a proscribed organization and the notice
should be published in official gazette.
(2) An order made under
sub-section (1) of this section shall be published in the official
gazette, in two National newspapers and at such other places as the
judge in Chambers may determine.
Section 2 of the TPA has five (5) subsections.
Subsections (1) and (2) thereof adequately circumscribe the object
of our enquiry and we shall limit ourselves to them.
ANALYSIS:
From the above provisions, three important issues have
crystalized for our consideration and they are as follows;
- The decision to bring an application before the Court based on
whether or not an organization is participating or collaborating in
an act of terrorism, promoting, encouraging or exhorting others to
commit an act of terrorism; or setting up or pursuing acts of
terrorism lies with either the Honourable Attorney-General of the
Federation, the National Security Adviser or the Inspector-General
of Police. - The application to be made to the Court by any of the potential
applicants must be preceded by the approval of the President. - In Chambers, the Judge before whom the application is brought
may declare any entity to be a proscribed organization.
For good reasons, it is to be noted that the above provision of
the TPA has been activated by the Federal Government of Nigeria
only on two different occasions since the TPA was midwifed by the
National Assembly. The first instance was against the members of
the Boko Haram sect operating in the North-Eastern part of Nigeria
while the second occasion was in September, 2017 against the IPOB
operating mainly in the South-Eastern/South-Southern part of
Nigeria. It is to be admitted here that the protestations that
greeted the proscription of the IPOB was never witnessed when Boko
Haram was proscribed. To make the point clearer, unlike the Boko
Haram, the IPOB is now back in court challenging the proscription
order of the Court which they seek to have the Court set aside upon
the twin principal grounds, among others, of the IPOB allegedly not
being a juristic person and the purported suppression of facts by
the Federal Government of Nigeria which misled the Court into
issuing the proscription Order. We shall now clinically examine the
issues on their individual merit.
THE JURISPRUDENCE OF EX-PARTE
ORDER:
That the Honourable Attorney-General of the Federation initiated
the two proscription applications ex-parte [without
putting the defendant(s) on notice] seems to have been dictated by
the tenor of the TPA itself which stipulates that such application
be taken by “the Judge in Chambers”. From practice
experience, whenever the Rules of any Court demands that an
application is to be taken by “the Judge in Chambers”,
most likely that application is one made ex-parte as the
other party would not be put on notice, Allport v.
Securities Corporation (1895) 64 L.J. CH 491. All
orders of the Court given in consequence of an ex-parte application
are ex-parte orders, Beecham Croup Ltd. v. Bristol
Laboratories Pty Ltd. 118 C.L. R. 61X, 623. More
importantly, ex-parte orders have limited life span and cannot
operate in perpetuity, Re Johnson ex parte Abrams
(18X4) 50 LT184. An order is said to be
ex parte when it is granted by a judge at
the request of and for the benefit of one party only, without
notice to or contestation by the other party, Beese v.
Woodhouse (1970) 1 A.E.R. 769 at 773. Etymologically,
ex parte is a Latin adjective meaning “for one party,” referring to motions, hearings or
orders granted on the request of and for the benefit of one party
only. This is an exception to the basic rule of court procedure
that both parties must be present at any argument before a judge,
and to the otherwise strict rule that an attorney may not notify a
judge without previously notifying the opposition. Ex parte matters
are usually temporary orders (like a restraining order or temporary
custody) pending a formal hearing or an emergency request for a
continuance. [See http://dictionary.law.com/Default.aspx?selected=696[1]]. Ex parte order is made
for a short duration and in making it the court should exercise
great care in not granting the applicant a favour that would turn
out to be a great injustice to the respondent, Global
Medical Care (UK) Ltd. & Ors. v. Medicair (west africa) Ltd. &
Anor. (1997) LPELR-6296(CA); G.M.C. (UK)
Ltd. v. Medicair WA Ltd. (1998) 2 NWLR (Pt.536). No
wonder most Rules of Court provide that the ex-parte order abates
after fourteen (14) days of making the order. In this connection,
Order 26 Rule 12 (1) and (2) of the Federal High Court
(Civil Procedure) Rules, 2009 provides as
follows:
(1) No order made on motion ex parte shall last for more
than fourteen days after the party or person affected by the order
has applied for the order to be varied or discharged or last for
another fourteen days after application to vary or discharge it has
been argued.
(2) If a motion to vary or discharge an exparte order is not
taken within fourteen days of its being filed, the exparte order
shall lapse.
The jurisprudential foundation for the entertainment of ex-parte
applications and grant of ex-parte orders [which is an
extraordinary jurisdiction being exercised] by the Courts appear to
have been laid down by Lord Griffith C.J. [in Thomas
Edison Ltd. v. Bullock (1912) 15 C.L.R. 679, at p.
68I] as appeared in this effulgent passage of
venerable antiquity:
“There is a primary precept governing the administration of
justice, that no man is to be condemned unheard; and therefore, as
a general rule, no order should be made to the prejudice of a party
unless he has the opportunity of being heard in defence. But
instances occur where justice could not be done unless the
subject-matter of the suit were preserved, and if that is in danger
of destruction by one party, or if irremediable or serious damage
be imminent, the other may come to the court, and ask for
interposition even in the absence of his opponent, on the ground
that delay would involve greater injustice than instant
action.”
There is a striking convergence of juristic views tending to
support the inflexible prescription of the law that ex-parte orders
should be most sparingly made against the backdrop of the avalanche
of abuses which this extra-ordinary jurisdiction of the Courts has
been subjected to by both lawyers and Judges. Leading the pack in
warning against the dangers inherent in ex-parte order is the
Nigerian Supreme Court. In Kotoye v C.B.N. (1989) 1
NWLR (Pt. 98) 419 at 450, Nnaemeka Agu, J.S.C. stated
as follows on the dangers of ex-parte orders;
“Above all, this Court ought to take notice of the numerous
cases of abuse of ex-parte injunctions that have come up in recent
times. The operation of a bank has been halted on an ex parte order
of injunction, granted to a person who had been removed as a
director of the bank. Installation ceremonies of chiefs have been
halted in the same way even though the dispute had been dragging on
for years. The convocation ceremony of University has been halted
on an ex parte application by two students who failed their
examinations. As the courts cannot prevent such applicants from
exercising their constitutional rights by stopping such
applications, they can, and ought at least see that justice is done
to the victims of such ex parte applications and orders by ensuring
that the applicant fully undertakes to pay any damages that may be
occasioned by any such order which may turn frivolous or improper
in the end.”
In that same judgment, Karibi-Whyte, J.S.C. said at page
465:
“Although an ex parte application for injunction can be
made, the court may refuse to make the order sought where the
interest of justice demands that the other party to be affected
ought to be put on notice, or it will be contrary to the general
provisions of the law or inconsistent with the interest of
justice.”
Uwaifo, J.C.A. in Okechukwu v. Okechukwu (1989) 3
NWLR (Pt. 108) 234, in berating the abuse of ex-parte
Orders by lawyers and Judges had this to teach us:
“It is most disturbing that the use of ex-parte injunction
by some judges cannot be supported in any measure either on the
applicable principles or on the facts. They do not seem to advert
to the need for caution in the exercise of that extraordinary
jurisdiction. They appear to give impression that the discretion is
so personal that it does not matter if others see it as a means of
inflicting undeserved punishment and hardship on another party or
other persons. It has again become necessary to issue a reminder
that even where everything points favourably to the granting of an
ex-parte injunction, there is always this need to make its life
very short, and indeed for an undertaking by the person who obtains
it” See also Fenner v. Walson (1893) & Ch. 656.
Expressing his utter displeasure over the same issue, Ubaezonu,
J.C.A. also articulated the same view in Okafor v.
Onedibe (2003) 9 NWLR (Pt. 825) at 415, where he
said:
“The reason for frowning on ex-parte order by this court is
clear. There is no justice in making an order behind a party when
no papers for such an order are served on him. Such orders make the
court look small. They must be avoided”.
In a tone of finality, the Court of Appeal in the case of
Asogwa v. Abel Chukwu (2003) 4 NWLR (Pt. 811)
540 intoned as follows:
“A practice which has acquired the force of law is that
orders of ex-parte injunctions should be discouraged”.
The Nigerian Courts, like other commonwealth Courts which apply
equitable remedies in cases brought before them, have admirably
warehoused a robust corpus of what may be termed “the
jurisprudence of ex-parte order.”
What emerges from our intimate reading and understanding of all
binding authorities on the point is the ineluctable view that
ex-parte orders [such as the proscription Order under the TPA] pose
a dangerous threat to the fair hearing right trenchantly
consecrated by Section 36(1) of the amended 1999
Constitution of the Federal Republic of Nigeria
[henceforth in this article called the Constitution] which is the
fons et origo [the source and origin] of all our laws. The
inexorable question germinating from this extrapolation is whether
Section 2 of the TPA is not in conflict with the combined
provisions of Sections 36(1) and 1 (1) & (3) of the Constitution
hence invalid?.
FAIR HEARING RIGHT:
To turn the full circle, it has become necessary to remind us
that Section 36(1) of the Constitution consecrates the irrefragable
right to fair hearing in this lucid language;
In the determination of his civil rights and obligations,
including any question or determination by or against any
government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality.
THE PURPORT:
Barrels of ink have flowed from the highest Bench in Nigeria in
giving life to this sacrosanct provision. Akinfe v. The
State (1988) 3 NWLR (pt. 85) 729; There is no doubt
that Section 36(1) encapsulates the twin
pillars of natural justice which, in the Latin heydays of the law,
are expressed as: nemo judex in causa sua [no man should
be a Judge in his own cause] and audi alteram partem
[please hear the other party]. Audu v FRN (2013) LPELR
-19897 (SC) 13. More importantly, the wisdom of our
courts has insisted that this particular provision must be
expansively interpreted, Bamgboye v. University of
Ilorin [1999] 10 NWLR (Pt. 622) 290, 333;
Adebisi v State (2014) LPELR -22694 (SC) 40;
A-C. Per Nweze, J.S.C. (P. 24, Paras. A-C). Under no
circumstance shall this right be denied a party for when the
inviolate principles ingrained therein are departed from, ‘justice
is but a hoax’, Emeka vs. Okoroafor [2017] 11 N.W.L.R.
(Pt. 1577) S.C. 410, per Eko, J.S.C. Emphasizing the
ubiquity of this fair hearing right, the ebullient Nweze, J.S.C.,
in Kanu v. State (2017) LPELR-42101(SC)
made this charming revelation:
Instructively, this Court in cases too numerous to be cited
here, has endeavoured to “give to individuals the full measure of
the fundamental rights and freedoms referred to.” In particular,
its attitude to the fair hearing provisions has been to seek after
the highest possible ideal of justice and fairness.
Little wonder then that the law has long taken the undisturbed
view that once there is a breach of the right of fair hearing, the
whole proceedings in the course of which the breach occurred and
the decision arrived at by the Court become a nullity.
Yusuf v State (2011) 18 NWLR (Pt. 1279) 853 at
870; Effiom v State (1995) 1 NWLR (pt
373) 507; Madu v State (1997) 1 NWLR (Pt.
482) 386. In ONUWA KALU v. THE STATE
(2017) LPELR-42101(SC), Nweze J.S.C. gave a
far-reaching insight into the entire purport of Section 36(1). For
its beneficial impact on the fortune of our discussion, we take the
liberty of this exercise to quote his leading judgment in
extensor;
This, unarguably was the context that yielded this Court’s
opinion in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E that:
Human rights in our written Constitution mark a standard of
behavior which we share with all civilized countries of the word.
Since the United Nations Universal Declaration of Human Rights in
1948, though it is still left for various member nations to
determine which rights from the plethora of rights then declared
they would wish to incorporate into their domestic laws, once
incorporated, their application lose the character of insular
isolationism. Rather they assume a universal character in their
standard of interpretation and application. One of those universal
characters of their breach is that, in case of a right to fair
hearing, once it is duly established that it has been breached in a
judicial proceeding, it vitiates the proceeding. If therefore, I
find that it was breached in this case, I shall have no alternative
but to allow the appeal. See- Michael Uda Udo v. The State (1988) 3
NWLR (Pt. 82) 316; Galas Hired v. The King (1944) A.C. 149; Dixon
Gokpa v. IGP (1961) All NLR 423; R v. Mary Kingston 32 C. App. R.
183; and Godwin Josiah v. The State (1985) 1 NWLR (pt 1) (sic). And
fair hearing in this respect compendiates not only compliance with
the two rules of natural justice – audi alteram partem and nemo
judex in Causa sua. It entails complying with all the provisions of
that section of the Constitution. It also entails doing, during the
course of the trial, all things which will make an impartial
observer leaving the Court room to believe that the trial has been
balanced and fair to both sides to the trial. From its tenor,
therefore, the Court is required to conduct the trial or hearing of
a case with all fairness to both parties to the suit and without
bias or partiality in favour of, or against either party. That is
the rationale for the prescription that a complaint of breach of
fair hearing is usually against the Court or Tribunal, whether the
parties before the Court were afforded equal opportunity to fully
ventilate their grievance. Okanlawon v State (2015) LPELR-24838
(SC) 52-53; E-B; Peters Pam and Anor v Mohammed and Anor (2008) 5-6
SC (pt.1) 83; Deduwa v Okorodudu (1976) NMLR 236, 246; 9-10 SC 329.
Such is its primacy in our administration of justice that no
decision can be regarded as valid unless the trial Judge or Court
has heard both sides in the conflict. State v Onagoruwa (1992)
LPELR -3228 (SC) 33; D-E; Deduwa v. Okorodudu (supra). This test of
fair hearing applies once a trial has commenced, after issue has
been joined, State v Onagoruwa (supra); nay more, it applies from
the beginning to the end of the trial. Oyewole v Akande and Anor
(2009) LPELR- 2879 (SC) 36-37; Deduwa v. Okorodudu (1976) 9 -10 SC
329; News Watch Comm. Ltd. v. Attah (2006) 12 NWLR (pt 993) 144; A.
G Rivers State v. Ude (2006) 17 NWLR (pt 1008) 436. It is this
logic that yielded the reasoning in the decisions of this Court:
decisions which are remarkable for their unanimity on the point
that it [that is, fair hearing] imposes an ambidextrous standard of
justice in which the Court must be fair to both sides of the
forensic conflict. Ndu v. The State [1990] 7 NWLR (pt.164) 550,
578; Ekpeto v Wanogho [2005] All FWLR (pt 245) 1191, 1203;
Amamchukwu v FRN [2009] All FWLR (pt 465) 1672, 1679. It therefore
does not anticipate a standard of justice which is biased in favour
of one party but prejudices the other. Ekpeto v Wanogho (supra).
Above all, it is not a technical doctrine, but one of substance,
Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14 -15; Kotoye v C.B.N (1989)
1 NWLR (Pt. 89) 418, 448. The touchstone for determining the
observance of fair hearing in trials is not the question whether
any injustice has been occasioned on a party due to want of
hearing. It is rather the question whether an opportunity of
hearing was afforded to parties entitled to be heard. J.C.C. Inter
Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91, 104; Amamchukwu v. FRN (2009)
LPELR -455 (SC) 11-12. It is thus outrageous to deny a party an
opportunity of hearing, Onyeneh v. Egbuchula (1996) 5 NWLR (pt.
448) 255, 265, Gyang and Anor v COP, Lagos State and Ors (2013)
LPELR -21893 (SC) 12- 13; A.R v. Electricity Joint Commission
(1968) NMLR 102; Adeyemi v. A.G. Federation [1984] 1 SCNLR
525.”
I entirely agree. Indeed, one could not have done better in this
enchanting array of juristic expatiation.
SUMMATION:
The agglomeration of all the analysis so far advanced, festooned
with entrancing galaxy of judicial authorities, affords us with the
jurisprudential beacons in arriving at the inevitable conclusion
that the Proscription Order of the Federal High Court sanctioned
under Section 2 of the TPA bears many dead wounds on its face,
Ogundoyin v. Adeyemi [2001] 33 WRN 1, 14
-15 just as the Section 2 of the TPA from which the
order flows is equally standing on a wobbly wicket,
Onyeneh v. Egbuchula (1996) 5 NWLR (pt. 448)
255. This is because, within the wide domain of the
law on fair hearing, Courts of law are without powers to make
ex-parte order with a tenor of perpetuity as if eventuating from
the merit of the case after a plenary hearing, Kotoye v
C.B.N (1989) 1 NWLR (Pt. 89) 418, 448. Such a strange
order is redolent with raw injustice, State v Onagoruwa
(1992) LPELR -3228 (SC) 33 and does not resonate with
the peremptory dictates of natural justice, Galas Hired
v. The King (1944) A.C. 149. This can only be so
since the weight of all existing authorities, Bakare v
L.S.C.C. (1992) 8 NWLR (pt.266) 641, lean heavily
against the making of such order, Ekunola v CBN (2013)
15 NWLR (pt. 1377) 224. Mention must be made at this
juncture that the tirade of this discussion is neither directed at
the person of the Judge who made the proscription order nor at the
Honourable Attorney-General of the Federation [AGF] who set the law
in motion ab initio. This is because, the presiding Judge
merely gave effect to the law [the TPA] as invoked and presented to
him by the AGF. After all, the TPA is an existing law which a Judge
is bound to enforce until successfully challenged and set aside. In
this regard, the dictum of the Supreme Court in Federal
Republic of Nigeria v Alhaji Mika Anache & Others (2004) 14 WRN
1-90 61 comes to mind. Therein, Tobi, J.S.C. [beatae
memoria] forcefully stated thus;
An academic or scholarly criticism of the greatest learning
of an existing law does not wipe out the existing law. And the
courts are bound to interpret the existing law and not a critique
of it
What is more, the Supreme Court itself has conceded the right of
interrogating its pronouncements in legal write-ups to scholars as
affirmed by Nweze, J.S.C. in Emeka vs. Okoroafor
[supra]. Listen to this:
Scholars, undoubtedly, relishing their liberty under the
well-cherished canon of academic freedom, have the right to
interrogate any judicial pronouncement. Interestingly, this Court
has responded, constructively, to such criticisms of its judgments
in law journals. For example, in Abioye v Yakubu (1991) 5 NWLR (pt
) 130, this Court acknowledged that:
“[a]academic writers in various Law Journals have criticized
the approach of the Courts in the interpretations of
statutes]
What we have just done is to interrogate the proscription order
of the Federal High Court under the TPA and the constitutional
validity, vel non, of the Section 2 of the TPA itself.
END:
Certainly, it is now clear that the National Assembly, in
enacting the impugned Section 2 of the TPA exceeded its legislative
competence by attempting to denude the sacred fair hearing right
enshrined in Section 36(1) of the
Constitution which admits of no derogation.
They have no constitutional warrant for such legislative
aberration, Musa vs. INEC (2003) 3 NWLR (Pt.806)72. 2,
(2003) 1 S.C (Pt.I) 106. Terrorism is a grave offence
in every civilised clime. Being labelled a
“Terrorist” presupposes that you have been tried
and found guilty of the offence of terrorism by a court of
competent jurisdiction. The National Assembly [nay the TPA] goofed
by attempting to proclaim any person or group of persons
“terrorist” or “terrorist group” by an ex-parte order without a
proper criminal trial thereby sidestepping that time-hallowed
process of determination of the guilt or innocence of a criminal
suspect sanctioned by the Constitution itself. The TPA punched
above its weight. No doubt, it is a constitutional taboo, if not a
legislative apostasy, that its victims [such as the IPOB] ought to
put squarely before the Court for even a state organ [such as the
National Assembly] is without powers to bludgeon the fundamental
rights of citizens, F.R.N. vs. Ifegwu (2003) 15 NWLR
(Pt. 842) 113 at 185.
Challenging squarely the constitutionality of the
Section 2 of the TPA will serve a broader
cause and assure composite justice for all persons bound by the
amended 1999 Constitution of the Federal Republic of Nigeria.
Indeed, nobody is excluded from the beneficial right to fair
hearing guaranteed by the laws of our land. I find here a
convenient place to stop.
BY JOHNMARY CHUKWUKASI JIDEOBI,
Esq.
The author may be reached on: 08131131942 or through:
joannesmaria2009@yahoo.com[2]