THE ROLE OF LAW IN THE PROMOTION OF JUSTICE,

ACCONTABILITY AND GOOD GOVERNANCE IN NIGERIA-

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

“The role of law in a free society is that it affords

the 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 Ajomo2 aptly opined

1
Per Pats-Acholonu, JCA in Fawehinmi v Akilu (1994) 6 NWLR (pt 351) 473
2
Ajomo: “Of Order and Disorder: The Relevance of International Law”, Inaugural lecture delivered at the
University of Lagos on 17th of January 1984. p. 3

1
 “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 the
hypothesis 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 Institutes3 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 the
enervating 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.69
5
R.W.M. Dias, Jurisprudence (4th ed Butterworth 1976) pp.18-19

2
challenges, yet seems elusive. Jurisprudential scholars have taken great
strides at taming this mammoth hydra; Ehrlich6 for example links justice to
just decisions, he asserts thus;
“A just decision is a decision based on grounds
which 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. Jega9
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 view
subscribed to by Megarry V.C. in Tito v Waddell (1977) Ch 106, 209, when he refused imply an
enforceable trust for the benefit of the Banabions, stating their claims can only succeed if permitted by law
and 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 Government
8
Jegede M.I. “Principles of Equity (Ethiope Press, Benin City)
9
Jega A. (1998) “Sustainable Strategies for popular Empowerment and Good governance Towards a
Democratic Nigerian Society” in Human Dignity: Newsletter of the Human Rights Club, Oct-Dec, pp. 4-6

3
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 Nations10 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 it11.

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 nations12. To this end, Davies13
10
United Nations (1992) “Poverty Alleviation and Sustainable Development: Goods in Conflict? Report of
the United Nations Committee for Development Planning, New York: pp 62-63
11
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 whole
communities 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 Political
Situation”. In God: The Contemporary Discussion, Ago- Iwoye: NASR.
13
A.E.Davis (2003) “Reflections on the Imperative of Transparency and Accountability for Good
Governance” Ilorin Journal of Business and Social Sciences, Vol. 8, Nos, 1& 2

4
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 governed14.

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 it15.

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 Ibadan.
15
Ibid

5
 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 bottleneck17.

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

6
at delivering services to the masses in the state. Alamu18 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. Davis19 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. 258
19
A.E.Davis Op. Cit
20
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

7
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 casual
working 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
23
others.” 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.383
22
Lateef Adegbite: Towards The Evolution of a Corrupt-Free Society: The Role and Duties of the
Citizenry”
23
Black’s Law Dictionary, 6th Edition, p. 345.

8
2 of the Corrupt Practices and other Related Offences Act24 defines
corruption to include “bribery, fraud and other related offences.”

Be that as it may, Banfield25 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 2003
25
Banfield: “Corruption as a Feature of Government Organisation” (1975) 18 JNL, Law and Econs, p.587.
26
ibid
27
See http://www. Wilkepedia.ord/wilki/Talk:Political_corruption
28
J. F. medard, “Public Corruption in Africa: A Comparative Perspective” Corruption and Reform Vol. 1,
No 2, 1986 p. ii5
29
Arthur Nwankwo, “Corrupt Practices”. An opening speech delivered during the seminar on corruption
organized by FEM, Enugu, September 17, 1999.

9
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 areas
where 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 Times30 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

10
iniquities. This sordid and ugly trend traverses the three arms of government
not excluding the Police and its top echelon which have been smeared by
this unscrupulous development. The enormity of corruption exposed by the
Oputa Panel stares us in the face, but we cannot wish away these palpable
realities, neither can we pretend that all is well for to engage in such
delusion is tantamount to taking a concerted, deliberate descent into
perdition.

CORRUPTION AND THE LEGAL ELIXIR

“Corruption, the greatest single bane of our society
today will be tackled head-on… No society can
achieve anything near its full potential if it allows
corruption to become the full-blown cancer it has
become in Nigeria” 31
The judiciary without a scintilla of doubt is a crucial player in any anti-
corruption war and as Justice Oyeyipo32 aptly opines “Judges who will have
to sit in judgment over others must like Caesar’s wife be above board.” The
grandiose importance of the use of legal machinery to nip in the buds corrupt
practices can never be over emphasized.

Upon assumption of office, President Obasanjo launched a vigorous and

spirited campaign geared towards the obliteration of this debilitating
scourge. Thus the first major leap by the government was the promulgation
of the Independent Corrupt Practices and other Related offences Act 2000
31
The Presidential inaugural speech delivered by President Olusegun Obasanjo GCFR on May 29, 1999
32
Hon Justice Timothy A. Oyeyipo, “Strides in Anti-Corruption Campaign – The Nigerian experience”
cited in “Judicial Integrity, Independence and Reforms” (Snaaps Press ) 2006, p.9

11
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 the
same vein it is believed that Probe panels and Boards of Inquiry are
theatrical shams and vistas to occasion vindictive cravings.

12
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 cursory
look 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 Fawehinmi33 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 23rd 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

13
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

14
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 the

instant case it will be overly expedient to trace the path of events which led
34
Per Karibi-Whyte JSC
35
Let both sides be heard.
36
One cannot be a judge in his own case
37
Oluwatoyin Doherty, Criminal Procedure in Nigeria- law and practice, (Ashford colour press) 1990 p.20
38
(1994) 6 NWLR (Pt 351)

15
to its adjudication. The Late Dele Giwa was a co-founder and Chief
Executive of Newswatch, a popular magazine. On 19th 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 public
concern.

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 Code39 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 the
same 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

16
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 laborious

analysis 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 approach
of 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 and
inimitable 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

17
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 Abacha41 is illuminating

as regards the role of the courts in the promotion of justice. The synopsis of
the case is that on Tuesday 30th 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) Act42 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 the
UN 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) 634-767
42
CAP 10 Laws of the Federation of Nigeria 1990

18
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 secure
and 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

19
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 time
again as we shall soon decipher. Thus in Gani Fawehinmi v President of
the Federal Republic of Nigeria43 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) Act44 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) 210-440
44
No 6 of 2002

20
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 the
Plaintiff/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 3rd 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 he
said;
“it is a notorious fact that at times this country
employs expatriates with expert knowledge but the
3rd and 4th 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 foreign
currency 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 scripture46 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 Police47 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 that
while 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.343
46
The Holy Bible, Psalm 89:14
47
(2000) 7 NWLR (Pt 665)

22
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 any
investigations 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 must
remain 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

23
 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

24
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 and
again 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 ors49 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)

25
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 reliefs
sought. 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 and
unfettered 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

26
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?

27