The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
I really didn’t see the need to discuss #EndSARS during the third anniversary of this unfortunate event towards the end of October, because in terms of positives, the Protest didn’t yield much results. All it did, was bring to global knowledge what we already know concerning the brutality of our law enforcement agents, with a special focus on SARS and the Nigeria Police Force (NPF). Apart from the change of Inspector Generals of Police (IGP) between 2020 and 2023, that is, from Mohammed Adamu to Usman Alkali Baba and now, Kayode Egbetokun, there have been no real institutional reforms in the NPF which we can point to. If there had been, a Police Officer at the rank of Assistant Superintendent of Police would not have shot and killed our learned colleague, Mrs Bolanle Raheem, who was pregnant and unarmed, I might add, on Christmas Day 2022, for absolutely no justifiable reason. Let me go further to say that, I dare the IGP to invite my team before the end of the first quarter of 2024, on a thorough inspection of Police College, Ikeja, Lagos, to show us how he has upgraded the place to be fit for human habitation, as a part of Police reforms. We look forward to the visit.
In my piece of 26/10/21 to mark its first anniversary, “#EndSARS Protest: Picking the Pieces”, I stand by what I said then, as it still remains valid today: “The disbandment of SARS in favour of SWAT, is simply a change in nomenclature, and nothing more. The Police are still poorly paid, their mode of selection suspect, conditions of service abysmal, and the “I will kill you, and nothing will happen” narrative which Police Personnel are infamous for, is still very much at play today, despite the #EndSARS Protest. Isn’t it ironical, tragicomic really, that the body whose constitutional mandate is to maintain law and order and protect the people, is one of the worst lawbreakers in our society? See Section 4 of the Nigeria Police Act 2020. Also see the case of Fawehinmi v IGP 2002 7 N.W.L.R. Part 767 Page 602 per Uwaifo JSC on the duties of the Police.
“Their slogan, “Police Is Your Friend”, which features prominently at Police Stations around the country is a sham – meaningless, worthless, and mostly, the opposite of what actually obtains in reality. On the contrary, Nigerians are scared of the Police, because they are largely trigger-happy, corrupt to the highest levels of criminality, vicious and bloodthirsty. The fear of the Nigeria Police Force and all weapon-bearing security agencies in Nigeria, is the beginning of wisdom! I would venture to declare that, ‘Au contraire, Police Is Your Enemy’!”
Brutalisation of Joe Ajaero, NLC President
Even though I might not necessarily agree with the NLC (Nigeria Labour Congress) and some of their ‘strike’ tactics (because I believe that, ultimately, it is the innocent Nigerians who suffer most during these strikes, and not the Federal Government that they are targeting), the brutalisation of Joe Ajaero, the NLC President, is reprehensible, backward (reminiscent of the draconian military era), savage and condemnable; and the fact that accusing fingers have been pointed at the Imo State Police Command as being the culprits responsible for orchestrating the beating of Mr Ajaero, in cahoots with the Imo State Government is even worse, and totally unacceptable.
In any civilised country, heads would have been on the way to being rolled, if they hadn’t already rolled. But, in our case, not only has the Federal Government remained silent, the Imo State Government which was also fingered as the main instigator and active participant in this unfortunate incident, with Governor Uzodinma as the spokesperson, made a highly unsatisfactory statement that Mr Ajaero is an indigene of Imo State and alleged that his actions had political undertones. So what, if Mr Ajaero is anti-APC and anti-Governor Uzodinma? The pertinent issue here, is whether Imo State is owing workers salaries and pensions, and whether the reasons for the rally were justifiable. Furthermore, I’m not aware that Mr Ajaero is exempted from the fundamental rights of freedom of expression, assembly and association, and movement, guaranteed for all Nigerians in Sections 39(1), 40 & 41(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) respectively, because he is the President of the NLC! See the case of Olufunmilayo Ransome-Kuti & 3 Ors v AGF, Chief of Army Staff & 7 Ors 1985 2 N.W.L.R. Part 6 Page 211 on the uniqueness and importance of fundamental rights. Also see the case of IGP v Nigeria People’s Party 2008 12 WRN 65, where the Court upheld the right of Nigerians to protest without Police Permit. In fact, Section 84 of the Police Act 2020 (PA) mandates the Police to provide security where there will be such a meeting. If the Police took Joe Ajaero into protective custody, how come he emerged therefrom battered and injured, not in the condition that he was taken in? That means the Police failed in their duty to protect him. In Egheghe v State (2020) LPELR-50552(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, the Supreme Court held inter alia about the Police thus: “The weapons they carry are not for the settlement of personal scores with individual citizens”. It certainly seems as if this was exactly what transpired in Mr Ajaero’s case – brutalisation by the authorities in order to settle a personal score against him, for his opposition and seeming attempt to thwart the chances of the incumbent in the Gubernatorial election with NLC’s activities. In Dikko v State (2022) LPELR-57098(CA) per Gabriel Omoniyi Kolawole, JCA, the Court of Appeal held that the role of the Police does not include the summary execution of suspected criminals, no matter how clear the investigation evidence has proved. In the same vein, even if Mr Ajaero allegedly committed a crime by being an indigene of Imo State, or not supporting Governor Uzodinma, or flouting the NICN ex-parte order, the Police also has no right to brutalise him.
The Ex-Parte Order
The flimsy excuse given by Imo State was that there was an ex-parte order issued by the National Industrial Court of Nigeria (NICN) which was renewed, preventing the NLC from holding any rally. In the case of flouting the court order, what ever happened to committal proceedings for contempt of court, that is, if it is even applicable in this case? Order 22 Rules 1(2) & (3) of the NICN (Civil Procedure) Rules 2017 provides for motion ex-parte for urgent relief, granted on the terms that the court deems fit.
Be that as it may, it is trite law that while filing an ex-parte application for some urgent cogent reason, it is accompanied by a motion for interlocutory injunction so that the other party is aware of the application and given the right to fair hearing on why such an application should be refused (see Section 36(1) of the Constitution). See the case of Azuh v Union Bank (2014) LPELR-22913(SC) per Mahmud Mohammed, JSC (later CJN). However, at the NICN, it appears that an ex-parte application not only doesn’t have to be accompanied by a motion on notice, the originating process in the matter can be issued after the ex-parte order has been granted, forming part of the said ex-parte order of the court .
However, an ex-parte order is just a temporary measure that is not meant to last more than a few days, or until the Respondent is put on notice – see the case of Kotoye v CBN & Ors 1989 1 N.W.L.R. Part 98 Page 419 at 450 per Adolphus Godwin Karibi-Whyte, JSC; Unibiz (Nig) Ltd v Commercial Bank Credit Lyonnais Ltd (2003) LPELR-3380(SC) per Akintola Olufemi Ejiwunmi, JSC. The court may order that the ex-parte order stay in place, until the hearing and determination of the motion for interlocutory injunction – this happened in the Supreme Court Naira Redesign case of AGF Kaduna & Ors v FGN. In that case, the ex-parte order was granted to protect the interest of the Nigerian people, and somewhat alleviate our suffering caused by a thoughtless CBN policy (public interest). But, the Federal Government was still given an opportunity to be heard within a few days, as they were served with a motion for interlocutory injunction.
Using Lagos as an example, Order 43 Rule 3(3) of the High Court of Lagos State (Civil Procedure) Rules 2019 provides that an injunction granted on an ex-parte order abates after seven days, unless such order is extended (Order 43 Rule 3(4)). If the order isn’t extended, it appears that there is no need for a specific application that such ex-parte order be vacated, as seems to be the practice, because it automatically abates by effluxion of time.
But, in this latter scenario, why should an ex-parte order be extended as the one against the NLC was said to have been, without giving the opposing party the opportunity to be heard in the interest of justice? This is unfair, and possibly unconstitutional. But, one complaint against the courts, especially at State level has always been that, once the State Governor or State Government is involved in a matter, the court is automatically biased in his or its favour (lack of judicial independence); the court somehow descends into the arena, and enjoys a consensus ad idem with the Governor or the State!
Two Wrongs Don’t Make a Right
The threat by NLC and other Workers’ Unions to go on strike if their demands are not met, will only inflict more hardship on Nigerians who are already passing through untold hardship. While the assault of Mr Ajaero cannot be condoned under any circumstances, the question as to whether retaliation forms one of the lawful reasons that NLC can go on strike, arises. The National Union of Electricity Employees (NUEE) cutting off electricity supply in Imo State, is unlawful. The provision of electricity is an essential service (see Paragraph 2(a) First Schedule to Section 48 of the Trade Disputes Act (TDA)). Section 41(1) of the TDA prohibits essential services workers inter alia from not performing their work without giving 15 days notice. Additionally, cutting off electricity supply amounts to sabotaging the Imo State economy, and in some instances, an act of terrorism under the Terrorism (Prevention and Prohibition) Act 2022 (TPA), and erring workers can face up to 20 years imprisonment if found guilty of some of the offences in this law, like destabilisation of Imo State (or Nigeria, if they attempt to cut off the electricity nationwide like was done last year for a period of 12 hours) and attempt to influence the Government by coercion. As painful as it may be, NLC must seek sound legal advice so that it’s subsequent actions fall within the ambits of the law. Retaliating to Imo State Government and the Police Command for their own wrongs with another wrong, is not advisable.
Conclusion
Contrary to his promise of ‘Uhuru’, the Buhari administration gave Nigerians a ‘Change’ for the worse and the ‘Next Level’ of suffering. Nigerians therefore, voted for President Bola Tinubu because of the ‘Renewed Hope’ he promised us, and not renewed hopelessness. Borrowing for consumption and Police brutality were some of the hallmarks of the immediate past administration, and they still seem to be going on strong. The optics are bad, for the Nigerian Government to seem to condone State Sponsored/Police Brutality. President Tinubu has held himself out as, and is considered to be a committed democrat whose goal is to turn the fortunes of Nigeria around, and it is therefore, shocking that what transpired with the NLC President in Imo State not only happened under his watch, but the perpetrators are set to get away with their oppressive and criminal behaviour. This must not be allowed to happen. Governor Uzodinma must be called to order, while the perpetrators of the violence against Mr Ajaero, since they do not enjoy immunity from legal proceedings like Governor Uzodinma does for now, brought to justice.
The story circulating on social media, which I hope is nothing more than a rumour, that the Federal Government is seeking a N1.7 trillion Ways and Means loan to fund the 2023 Supplementary Budget which is comprised of a considerable amount of needless expenditure, is distressing. The fact that the Buhari administration has already breached the provisions of Section 38 of the Central Bank of Nigeria Act 2007 (CBN Act) with regard to non-adherence to the conditions related to this type of advancement by exceeding it and being indebted to the tune of about N22 trillion, if it is true that this loan is also being sought, appears that, just like its predecessor, this administration may not have too much regard for the rule of law. I hope that I am wrong, and it will not be business as usual. At this point, one can only say that, God willing, the hopes of Nigerians will not be dashed. But, then again, I guess it may still be early days, and too soon to judge?
