Nkem Okoro & Co

09/02/2024

https://thenigerialawyer.com/court-affirms-nepzas-exclusive-powers-over-abuja-centenary-city-free-zone-awards-n155-million-for-encroachment/

A federal high court sitting in Abuja has ordered Arab Contractors (OAO) Nigeria Limited to immediately vacate the portion of the Centenary Economic City Free Zone which it forcefully and illegally occupied. The court also declared that Nigeria Export Processing Zone Authority has the exclusive powe...

11/12/2023

A LAWYER, AS A MINISTER IN THE TEMPLE OF JUSTICE, OUGHT NOT TO BE PUNISHED FOR PRESENTING THE COURSE OF HIS CLIENTS BEFORE THE TEMPLE OF JUSTICE;

The Constitution of the Federal Republic of Nigeria is the yardstick through which the actions of the three arms of government in Nigeria are usually measured. The three arms of the government of the Federal Republic of Nigeria are, therefore, subject to the provisions of the Constitution of the Federal Republic of Nigeria. In the case of CHIEF ADEBIYI OLAFISOYE v. FEDERAL REPUBLIC OF NIGERIA (2004) LPELR-2553(SC), the apex court had this to say:
As our Country is sovereign, so too our Constitution and this Court will always bow or kowtow to the sovereign nature of our Constitution, a sovereignty which gives rise to its supremacy over all laws of the land, including decisions by foreign Courts..."Per TOBI ,JSC (P. 87, paras. B-C)

Also, in the case of PROF. STEVE TORKUMA UGBA & ANOR v. GABRIEL TORWUA SUSWAM & ORS (2014) LPELR-22882(SC), the apex court further held as follows:
"Following from the foregoing therefore, the supremacy of the Constitution is obvious as being the only instrument which is imbued with absolute power to create and confer jurisdiction. It is the ultimate and can be compared to none. The Learner's Dictionary Concise Edition defines the word supreme as thus: "the greatness of a quality or thing.", Also in the famous words of Uwaifo, JSC in the case of A.G. Ondo State V. A.G. Federation (supra) at 418 - 419 his Lordship had this to say:- "It must be recognized that our Constitution is an organic instrument which confers powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law." Again the learned jurist Onnoghen, JSC did not also mince his words in the case of ANPP V. Goni (supra) when he said: "Jurisdiction is a creation of statute or the Constitution...it is not inherent in an appellate Court neither can it be conferred on a Court by order of Court."Per OGUNBIYI ,JSC (Pp. 66-67, paras. C-A)

The apex court in Nigeria recently awarded a cost of N40,000,000.00 against Chief Mike Ozekhome, SAN, for what the court viewed as a frivolous appeal. This was not the first time the Supreme Court awarded such punitive costs against senior and eminent lawyers appearing before it. The court had, in February 2020, equally awarded such punitive cost against two very eminent lawyers in Nigeria in the person of Aare Afe Babalola SAN, and Wole Olanipekun, SAN.
The award of punitive costs against lawyers and situations where lawyers are forced to withdraw pending appeals before the Supreme Court, with the threat of punitive sanctions, have continued to raise more questions than answers regarding the fairness and constitutionality of such awards by the apex court. This is bearing in mind that the Supreme Court is made up of humans and is, therefore, capable of making mistakes.

Legal practice in Nigeria is highly regulated; hence, every infraction of the rules of professional conduct should be referred to the Legal Practitioner’s Disciplinary Committee, which, in exercise of its adjudicatory powers and disciplinary powers over a lawyer, gives such a lawyer an opportunity to defend himself, before making any adverse decision against the Lawyer, for which the Lawyer, will also have a right of appeal to the Supreme Court.

Every perceived breach of rules of professional conduct by Courts against a Lawyer ought to be referred to and dealt with in accordance with the Rules of Professional Conduct. Without prejudice to the powers of the court to punish for contempt infra curie, it is not fair for the Supreme Court to punish lawyers for representing their clients in court or force lawyers to withdraw appeals pending before the Supreme Court without hearing such appeals or giving lawyers, the opportunity to make representations before punishing them, bearing in mind, that lawyers are not parties before the Court.

Constitutional rights of litigants to litigate, and which in the course of briefing a Counsel is donated to the Counsel, must not be seen to be taken away by the Supreme Court, either by awarding monetary cost against lawyers or forcing lawyers to withdraw their appeals, which has been a recent reoccurring trend with the Supreme Court of Nigeria.

Punishing Lawyers for bringing the case of their clients to court and also forcing lawyers to withdraw cases legitimately brought to Court by the Supreme Court is with the due respect to the Supreme Court justices, not in accord with sections 6(6b) and 36(1) of the Constitution of the Federal Republic of Nigeria. In the case of Ladejobi v. Oguntayo (2004) 18 NWLR (pt. 904) p. 149 at 178, the Supreme Court had this to say;

I view with fear and apprehension any attempt by the Court to shut off someone who can show how he is affected by the dispute and decides to seek for a remedy and the Court with a wave of a hand gives a decision barring him from ready access to the counts on the ground that he has not disclosed sufficient interest to show his connection or what he stands to lose. It is desirable and in fact essential that a party should be given as much latitude as possible the opportunity to canvass his case where the Court would then sieve the wheat from the chaff. Let it not be said that a Plaintiff is chased out peremptorily from the temple of justice because the Court does not feel strongly satisfied that he has shown a strong connection and interest in the matter." The above dictum is premised on the reasoning that the Court must do everything it legitimately can, to uphold a citizen's right of access to the Court; save where there is a commanding or compelling reason not to do so. After all, that a person has approached the Court for the ventilation of his grievance, does not mean that he will or must ultimately succeed."

With respect to the duty of a lawyer who represents his client in Court, the Supreme Court has this to say, in the case of FESTUS L. ADEWUNMI v. PLASTEX NIGERIA LIMITED (1986) LPELR-164(SC)
"There is no doubt that a counsel is duty bound to present his clients' case with utmost devotion. But such devotion must be coloured with professional discretion. In other words counsel must be the master in the conduct of his client's case and should not be dictated to by his client as to how to conduct the case. It is in recognition of that authority of counsel that Rules 14(c) and 18(a) of the Rules of Professional Conduct in the Legal Profession, published as Government Notice No.69 in Federal Official Gazette No.5 of 18th January, 1980 which deal with how far a lawyer may go in supporting a client's case and the right of the lawyer to control the incidents of the trial respectively provide as follows - "14(c) The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of the client's rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the rules of law legally applied. No fear of judicial disfavour or public unpopularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to expect his lawyer to assert every such remedy or defence. It must however be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client." "18(a) The lawyer is to be judge of incidental matters not affecting the merits or operating to prejudice substantially the rights of his client; and client has no right to demand that his lawyer do or refrain from doing anything repugnant to his lawyers sense of honour or propriety. In matter not directly affecting the merits or operating to prejudice the right of the client his lawyer may, to the exclusion of his client determine the accommodation to be granted to opposing counsel."
Per UWAIS ,JSC (Pp. 34-35, paras. A-C)

Lawyers in appearing before the courts, especially the Supreme Court, come to the Supreme Court in the hope that their matters will be heard and determined one way or the other by the Supreme Court, which is the apex court in the land. A situation where the lawyer is forced to withdraw his appeal for fear of sanction or sanctioned for bringing the appeal before the court should be reviewed and reversed with the greatest respect to the Justices of the Supreme Court.

Lawyers, as ministers in the temple of justice, ought to appear in the temple, with high reverence and solemnity, deserving of the temple of justice, but not in fear and trembling, as they know not the punishment that might be meted against them, for exercising their constitutional rights, as minister in the temple.

In the case of RT. HON. ROTIMI CHIBUIKE AMAECHI v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) LPELR-446(SC) the Supreme Court held as follows:
"I wish to say that this Court (the Supreme Court) being the final Court of the land, is under a compelling duty to settle all issues arising from or appurtenant to any appeal before it. The judgments of this Court must not be final only in name, but must be seen to be really final in the sense that they have legal bite that makes the judgments truly conclusive. All issues that will make its judgments reasonable and conclusive must be clearly addressed by the Supreme Court."

It would amount to abdication of the constitutional duties of the Supreme Court and a breach of the same Constitution for the Supreme Court to force Lawyers to withdraw appeals pending before them without hearing the appeals or awarding punitive costs against lawyers for insisting that their course be heard by the court. It is a saddening and worrying situation, which the Supreme Court has to urgently look into and ensure that justice is deservedly done to every case that comes before it, initiated by due process of law.

This is more so, given the fact that the Supreme Court now has the constitutional numbers to fulfil this sacrosanct and constitutional obligation of adjudication. This, however, should not be interpreted to mean that litigants and lawyers alike suffered the effect of the gap that existed due to the delayed appointment of Justices to fill up the gap created by either the retirement or death of some of the Supreme Court Justices.

We acknowledge the fact that the Supreme Court of Nigeria is the highest court in Nigeria, and therefore, its decisions are final. This is not in any way saying that the decisions of the Supreme Court are always correct. The Honourable Justices of the Supreme Court are human beings and, therefore, not infallible. They can make mistakes or commit errors at any time, like any other mortals. That is why the law allows for correcting errors in its judgment when called upon to do, for instance, under the slip rule or pencil rule. In other words, in deserved situations or circumstances, the Supreme Court, when invited, can revisit the judgment it delivered earlier or previously if such judgment is not in accord with desired justice by setting same aside, or varying same or even overruling such judgment. Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250.

The Supreme Court Rules, which provides for cost to be awarded against Lawyers who appear for clients, even when such lawyers are not parties before the court, is unconstitutional and ought to be invalidated to the extent of its inconsistency with section 36(1) of the Constitution.

Section 36 of the Constitution of the Federal Republic of Nigeria provides as follows:
(1) 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.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.

A situation where the Supreme Court punishes a lawyer who appears for a client by awarding punitive costs against the lawyer without hearing the Lawyer, constitutes a breach of the lawyer’s right to fair hearing and cannot even be justified by the provisions of section 236 of the Constitution, which gives the Supreme Court powers to make rules, as every such rule made by the Court, are subject to sovereign and overriding provisions of the Constitution of the Federal Republic of Nigeria.

Rules of court are not laws and cannot be elevated to such by any stretch of the imagination. Neither Practice Directions nor rules of court can overrule statutory provisions. In other words, rules of court are not as sacrosanct as statutory provisions of law. [University of Lagos v. Aigoro (1984) 11 S.C. 152.

The practice of asking Lawyers to withdraw their appeals at the risk of being sanctioned by the Supreme Court is not in conformity with the provisions of sections 232(1) and 233(1) of the Constitution of the Federal Republic of Nigeria. Asking Lawyers to withdraw appeals filed legitimately before the Supreme Court without hearing the appeal is equally unconstitutional and does not accord with the previous decisions of the Supreme Court.

Ministers in the temple of justice must not be made to approach the temple with trepidation. Supreme Court should not be a place where Lawyers are punished but a place where justice is dispensed in accordance with the provisions of the Constitution.
SIR, NKEM OKORO, ESQ (LL.M)

10/06/2022

WHERE THEN IS THE JUSTICE: AN URGENT NEED FOR A CONSTITUTIONAL AMENDMENT

The cry of where is the justice by Ogbonnaya Onu, is a clarion call on all politicians, to drop all primordial vestiges of selfishness and greed, and to form a common, indivisible and united front for the benefit of the of all regions in Nigeria, despite divergent political affiliations.

There is need for the members of the National Assembly to begin to push for a constitutional amendment to entrench rotational presidency between the South and North and further to the various sub rejoins that make up each of the two central zones in Nigeria.

Given the numerical advantage of the north over the south, the hopes of having justice, by the minority regions producing the President of the FRN of Nigeria, will only continue to be a fading mirage, which will never come to fruition.

The only universal talisman, the waver of which will cure this perennial malady,is an urgent constitutional amendment.

While I congratulate the Presidential candidates of the PDP,APC, Labour Party and all other presidential candidates, for emerging from their respective presidential primaries, I wish to remind them, of the rhetorical questions by Ogbonnaya Onu,”Where is the justice ?“

If they have this notion of justice, central in their minds, they will ensure equitable distribution of Federal appointments to the marginalized zones in Nigeria.

They will engender a constitutional amendment that will ensure that the justice, which had eluded some of the zones in Nigeria, is entrenched in our Constitution, by quickly working out an amendment that will bring about rotational presidency in the constitution and the eventual stability in our polity.

They should work towards democratizing the process of selecting would be leaders in Nigeria, at all levels. The tradition of governors single handedly choosing their cronies to replace them in office, must be stopped forthwith. The Local Governments in Nigeria must be liberated from their colonial task masters, “the Governors”. This also has to be entrenched in the constitution by a constitutional amendment.

Nigerians must be afforded freely, the opportunity to nominate their leaders through a sincere and democratic process. This should also be reflected in a constitutional amendment.

Nigeria today, is overwhelmed by innumerable problems, ranging from terrorism, banditry, agitations for self determinations, and above all, Corruption.

Given these hydra headed problems, leading Nigeria in this season, should not be a party or regional affairs, there has to be concerted efforts to address injustices as replete in every sphere of our National development.

May God help our dear country Nigeria.

By:

Sir Nkem Okoro Esq.
Constitutional Lawyer and Human Rights Activist

19/02/2022

*Abba Kyari: Nigerians Will No Longer Have Confidence In NDLEA’s Drug War Says lawyer Nkem Okoro*

_*Says The Solution Is To Investigate Kyari Thoroughly_

_“Consequently, despite the commendable actions of the officers of NDLEA by exposing Abba Kyari, lots of Nigerians, by what transpired, will no longer have confidence in the ability of the NDLEA to effectively fight drug war in Nigeria._

*Says The Solution Is To Investigate Kyari Thoroughly

18/02/2022

*Abba Kyari: NDLEA’s Drug War now in Bad Light - Lawyer makes suggestions*

*" _The fact that even during suspension, that Abba Kyari, still had the temerity , to attempt to divert recovered illicit drugs from NDLEA, tells a lot by itself_ ."*

Legal practitioner and Rights activist, Nkem Okoro Esq. has said the attitude of the NDLEA officers have placed Nigerian drug war in bad light.

18/02/2022

The Abba Kyari’s saga, has certainly put the NDLEA’s drug war in a bad light, before Nigerians and indeed the international community at large.

The fact that even during suspension, that Abba Kyari, still had the temerity , to attempt to divert recovered illicit drugs from NDLEA, tells a lot by itself.

Conseqiently, despite the commendable actions of the officers of NDLEA by exposing Abba Kyari, lots of Nigerians, by what transpired, will no longer have confidence in the ability of the NDLEA to effectively fight drug war in Nigeria.

One can only imagine the quantity of illicit drugs, that could have escaped in the country through the conducts of the said Abba Kyari and his cohorts. When we talk about increase in the spate of crimes in Nigeria, drug, is one of the catalyst for such increased criminal activities in both the northern and southern parts of Nigeria. The spiraling effect of the conducts of Abba Kyari and his cohorts in NDLEA, must have contributed enormously to the precarious security situation currently being faced by the country.

The airport is just one of the many routes manned by both the NDLEA and the Police, through which these illicit drugs get into Nigeria. What could be happening in the land boarders, and the Sea ports?

NDLEA definitely need to do more now, to restore the confidence of Nigerians, and also the bartered image of NDLEA in the eyes of the Nigerians.

This they can do, by thoroughly investigating Abba Kyari, and also any of the officers of NDLEA that might have been complicit in the commission of these atrocities by Abba Kyari and his group. They must ensure the timely prosecution of the matter, and also constantly update the Nigerian public of the progress of the matter. This way, they will be able to redeem, whatever is left of their already battered shattered image, in Nigeria and the world at large!

01/02/2022

*It Is Illegal, Unlawful And Unconstitutional For Any State Or Region In The Federal Republic Of Nigeria To Establish By Law, Any Government Security, In The Federating States*

_By Nkem Okoro Esq_

_The Constitution of the Federal Republic of Nigeria, as amended, provides the limits of the executive powers of both the Federation and the states. See section 5(1) of the Constitution of the Federal Republic of Nigeria which provides as follows:👇🏽_

By Nkem Okoro Esq

01/02/2022

IT IS ILLEGAL, UNLAWFUL AND UNCONSTITUTIONAL FOR ANY STATE OR REGION IN THE FEDERAL REPUBLIC OF NIGERIA TO ESTABLISH BY LAW, ANY GOVERNMENT SECURITY, IN THE FEDERATING STATES

Since the return to democratic rule in 1999, Nigeria has continued to face a myriad of low-intensity conflicts which pose threats to national security. These conflicts include ethnoreligious crises, farmer-herders clashes, communal conflicts, Boko Haram terrorism/insurgency, militancy in the Niger Delta, to mention but a few.

The government, at all levels, has been making attempts at addressing these conflicts some of which have proved intractable, stretching the country’s security apparatus, especially the Police Force to the limit.

Consequent upon the inability of the Federal Government to adequately protect the lives and properties of the citizen, some states, and regions in Nigeria have decided to either create their regional security outfit or state security, for diverse political reasons.

This piece, is, therefore, aimed at examining the constitutionality and the legality of such acts by some of the states/regions in the Federal Republic of Nigeria.

All the actions of the government, either the Federal or State, in Nigeria are governed by the provisions of the Constitution. By virtue of section 1(1) of the 1999 Constitution, the provisions of the Constitution are superior to every provision made in any Act or Law and are binding on and must be observed and respected by all persons and authorities in Nigeria. The Constitution is the grundnorm and the fundamental law of the land. All other legislations take their hierarchy from the provisions of the Constitution. The provisions of the Constitution take precedence over any law enacted by the National Assembly even though the National Assembly has the power to amend the Constitution itself. By the provisions of the Constitution, the law made by the National Assembly comes next to the Constitution, followed by those made by the House of Assembly of a State. See the case of Okorocha V PDP (2014) 7 NWLR (Pt. 1406) 213, where the Supreme Court held as follows:

The court must do all it can to jealously guard its powers and the supremacy of the constitution as the grundnum, which is above all other authorities. The court, as the custodian of the constitution, must not, therefore, be seen to ridicule the very institution that puts it in place. (P. 269, paras. C-D)

The Constitution of the Federal Republic of Nigeria, as amended, provides the limits of the executive powers of both the Federation and the states. See section 5(1) of the Constitution of the Federal Republic of Nigeria which provides as follows:

Subject to the provisions of this Constitution, the executive powers of the Federation:
(a). Shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be executed by him either directly or through the Vice President and Ministers of the Government of the Federation or officers in the public service of the federation; and
(b). Shall extend to the ex*****on and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws
(2). Subject to the provisions of this Constitution, the executive powers of a state-
(a). Shall be vested in the Governor of that State and may subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that state or officers in the public service of the state; and
(b). Shall extend to the ex*****on and maintenance of this Constitution, all laws made by the House of Assembly of the state and to all matters with respect to which the House of Assembly has, for the time being, power to make laws.

See also the provisions of section 5(3a) of the Constitution of the Federal Republic of Nigeria, as follows:
The executive powers vested in a State under subsection (2) of this section shall so be exercised as not to_
(a). impede or prejudice the exercise of the executive powers of the Federation.
(c). endanger the continuance of a federal government in Nigeria.

The National Assembly has the powers to make laws for the peace, order and good government of Nigeria, in respect of the 68 items listed in the exclusive legislative list under part 1, to the Second Schedule of the Constitution of the Federal Republic of Nigeria, and the other items listed on the concurrent legislative list in Part 2, Second Schedule to the Constitution of the Federal Republic of Nigeria. See the provisions of section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, which provides as follows:

The National Assembly shall have powers to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the exclusive legislative list set out in Part 1 of the Second Schedule to this Constitution.

The House of Assembly of a State also has such powers to make laws for the peace, order and good government in respect of the State or any part thereof and with respect to matters listed in subsection (7) (a)-(c) of section 4 of the Constitution, which also provides as follows:

The House of Assembly of State shall have power to make laws for the peace, order and good government of the state or any part thereof with respect to the following matters, that is to say-
a. Any matter not included in the Exclusive Legislative List set out in Part 1, of the Second Schedule to this Constitution.
b. Any matter included in the Concurrent Legislative List set out in the first column of Part 11 of the Second Schedule to this Constitution to the extent prescribed in the Second Column opposite thereto; and
c. Any other matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.

It would be preposterous for the House of Assembly of a State to contend that because it has the power to make laws for the peace, order and good government of the State, it could enact a law for the State on a matter on the Exclusive Legislative List. Such a law would simply be invalid and of no effect whatsoever. Each of the National Assembly and the House of Assembly of a State can only operate, orbit, or gravitate, within the parameter, circumference, or fulcrum, laid down by the Constitution. Nigeria operates a constitutional democracy, with a written Constitution and the powers of each organ are to be discerned from the Constitution.

See the case of AG Lagos State V AG Federation & Ors (2003) LPELR-620(SC) where the Apex Court held as follows:

"Nigeria is no doubt a Federal Republic with a Federal Constitution in which the Legislative powers of the Federal Government through the National Assembly and the legislative powers of the State Governments through the State Assemblies were clearly defined. These consist of the Exclusive Legislative list on which only the National Assembly can legislate; the Concurrent Legislative List which is shared between the National Assembly and the State Assemblies and the remaining which is called the residual list not included in the Exclusive or Concurrent List which only the State Assemblies can legislate on. It is therefore the function of the court when any dispute arises on the competence of either of them to legislate on any matter, to ensure that each legislative arm operates within its limit as provided by the Constitution. And in order to determine the competence to legislate as in this case, the interpretation of the relevant provisions of the Constitution must be invoked."

See Items 38, 45and 68 of the Second Schedule Part 1, of the Constitution of the Federal Republic of Nigeria 1999, as amended. Item 38 provides for, military(Army, Navy and Air Force) including any other brand of the armed forces of the Federation. However, for this article, we shall be focusing on item 45, which provides for the police and other government security services established by law(Emphasis supplied). Item 68, provides to the effect that any matter incidental or supplementary to any of the items mentioned in the exclusive legislative list is exclusively within the legislative competence of the National Assembly. By virtue of the inclusion of item 45, in the exclusive legislative list, it means, that only the National Assembly can legislate on these issues, especially government security services, established by law. See the case of AG Lagos State V AG Federation (2013) 16 NWLR (Pt. 1380) 383. By extension, as these items are not within the legislative competence of the House of Assembly, the State Governors, have no executive competence, to make any declarations, by which government security could be established. See Sections 4(7) and 5(2b) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Neither the House of Assembly nor the Governor of any State in the Federal Republic of Nigeria has any constitutional powers to establish by law, any security in the federating states of the Federation, the description or appellation of such security, notwithstanding, as the powers of the governor and House of Assembly of a State, are circumscribed by the provisions of the constitution.

Consequently, where the governor of a state, exceeds the limits of its constitutional powers as provided for in the Constitution, the Courts can always intervene. See the case of Gov of Akwa Ibom State V Umah (2002) 7 NWLR (Pt. 767) 738, where the intermediate court held as follows:

In exercising his executive powers, the Governor of a State must act within the Constitution and under any law validly made by the House of Assembly of the State. In Nigerian democratic set up, a blank or Arbitrary power outside the Constitution and the law is not vested in or possessed by the Governor of a State. (P. 776, paras. G-H)

See the case of Gov of Akwa Ibom V Umah (Supra), where it was further held as follows by the Court of Appeal;
By virtue of section 5(2) of the Constitution of the Federal Republic of Nigeria, 1999, subject to the provisions of the Constitution, the executive powers of a State shall extend to the ex*****on and maintenance of the Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws. (P. 770, paras. D-D)13. On Limit of powers of Governor of a State under section 5(2), 1999 Constitution -The provisions of section 5(2) of the 1999 Constitution is subject to provisions of the Constitution and it means that the section is qualified as it is rendered dependent upon and subjected to other provisions of the Constitution. And, the mere fact that the House of Assembly of a State has the powers to make laws under the provisions of the Constitution does not automatically empower the Governor to act under the provisions where the House of Assembly has not made any law under the relevant section of the Constitution. In any event, there must be a law which must authorize a Governor to act upon under the provisions and such a law must not be inconsistent with the provisions of the Constitution. (P. 771, paras.A-G)

See the case of Alakpi V Gov of Rivers State (1991) 8 NWLR (Pt. 211) 575, where it was also held as follows;

Per OMOSUN, J.C.A. at page 606, paras. E-F:"The Governor is bound by the Law which the Government has made. The constitution which is the supreme law of the land binds him. It is not within his powers to swap the functions of the Civil Service Commission in disciplinary matters. The 1979 Constitution made pro- visions for the functions of the three arms of Government and the 1st respondent cannot unilaterally arrogate to himself the functions of any organ of the Government. 1st respondent's termination of the appointment of the appellant was Arbitrary and unlawful.

We submit that it is not within the constitutional powers donated to the Governors in Nigeria, to establish, a regional security outfit, or state security outfit for any purpose whatsoever. The governors’ powers are exercised within the items for which the State Houses of Assembly have powers to make laws. The Houses of Assembly in Nigeria, by virtue of items 45 and 68 of Part 1, Second Schedule to the Constitution of the Federal Republic of Nigeria, have no legislative powers over government security, established by law. Consequently, no state in Nigeria has powers to establish regional or state security.

The legislative powers of the State Houses of Assembly can only be exercised in accordance with the limits, as placed on the State House of Assembly by the Constitution of the Federal Republic of Nigeria. See the case of A.-G., Abia State v. A.-G., Fed.2006)( 16 NWLR,(Pt 1005) 291, where the apex court held as follows:

The Constitution of a nation is the fans et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer with which all statutes are measured. In line with this kingly position of the Constitution, all the three arms of Government are slaves of the Constitution, not in the sense of undergoing servitude or bo***ge, but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State.The supremacy clause is provided for in section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999. All the three arms of Government must dance to the music and chorus that the Constitution beats and sings, whether the melody sounds good or bad. Regarding the first place section 1 occupies in the Constitution, I regard and christen it as the golden section of the Constitution, the adjectival variant of the noun gold. It is the same golden position in sports that the Constitution occupies in any jurisprudence and legal system, including ours.
While I recognise the constitutional right of the legislatures, that is, the National Assembly and the House of Assembly of the States, to amend the Constitution, until that is done, they must kowtow (using the Chinese expression) to the provisions of the Constitution, whether they like it or not.
Where the National Assembly qua legislature moves from the constitutional purview of section 4(2) of the Constitution or vice versa, as it relates to the House of Assembly of a State in respect of section 4(7), issue or question or constitutionality or constitutionalism arises, and courts of law in the exercise of their judicial powers, when asked by a party, will move in to stop any excess in exercise of legislative power. This is what I am doing and section 6 of the Constitution is my authority for doing so.

It is only the National Assembly that can make laws incidental or supplementary to any matter, mentioned in the exclusive legislative list. Consequent upon the foregoing, we submit most humbly, that the Houses of Assembly of the States of the Federation, have no legislative competence to make any law pertaining to the security of any State in the Federal Republic of Nigeria, as it is the exclusive preserve of the National Assembly given the provisions of items 45 and 68 of Part 1, Second Schedule to the Constitution of the Federal Republic of Nigeria.

Item 45 Part 1, of the Second Schedule to the Constitution, provides as follows:

Police and other government security services established by law.

Whereas item 68 Part 1, of the Second Schedule to the Constitution, provides as follows:

Any matter incidental or supplementary to any matter mentioned elsewhere in this list.

We submit, that given the two provisions above, no House of Assembly in the Federation, has the legislative competence to legislate on any government security service established by law, or any other matter incidental or supplementary thereto. We submit that any legislation by any House of Assembly in the Federal Republic of Nigeria, establishing any state security, no matter the name given to such security outfit, is void, as same would conflict with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended. It is also ultra vires any state House of Assembly to make such laws, given the clear and succinct provisions of the constitution referred to, above. See the case of Chevron Ltd V Imo State House of Assembly (2016) LPELR- 41563(CA).

We submit that, given the provisions of section 4(7a-c) of the Constitution of the Federal Republic of Nigeria, and items 45 and 68 Part 1, of the Second Schedule to the Constitution, any law made by any State House of Assembly, establishing any security outfit in Nigeria, is null, void, invalid and of no effect whatsoever. See the case of A.G. OF Lagos State V A.G of the Federation (2003) 2 NWLR (Pt. 833) 1, where it was held as follows:

If the provisions of any law are inconsistent with any of the provisions of the Constitution, they are liable to be struck down under the "blue pencil rule" in accordance with the provisions of section 1(3) of the 1999 Constitution. [Balewa v. Doherty (1963) 2 SCNLR 155; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt.763) 264; A.-G., Ondo State v. A.- G., Federation (2002) 9 NWLR (Pt.772) 222 referred to.] (Pp. 119, paras. A-D; 244, paras. A-D) Per TOBI, J.S.C. at page 244, paras. A-D:

"The Constitution is the barometer on which the constitutionality or otherwise of a statute is measured. Where a statute is inconsistent or in conflict with any provision of the Constitution, the provision of the statute will be null and void. This is essentially the language of section 1(3) of the Constitution."

It is also important, that we x-ray the provisions of the 2nd Schedule Part 2, of the Constitution of the Federal Republic of Nigeria, as it relates to the concurrence legislative list, to determine, whether anything, as it relates to the establishment of government security by law, was provided for in the said part of the constitution, in favour of a state House of Assembly.

The House of Assembly of a state can only legislate on 13 items, on the concurrent legislative list, in Part 11, Second Schedule of the Constitution of the Federal Republic of Nigeria as follows:

1. Grants and Loans. 2. Antiquities and Monuments. 3. Archives and Public Records. 4. Collection of any Tax, fee or rate. 5. Laws with respect to the election of local government Council. 6. Electricity, its distribution and transmission in a state. 7. Censorship of cinematograph film and to prohibit or restrict the exhibition of such films. 8. Industrial, commercial or agricultural development. 9. Scientific and technological research. 10. Statistics. 11. Trigonometrical, cadastral and topographical surveys. 12. Establishment of an institution for the purposes of a university, technological or professional education.13. technical, vocational, post primary, primary or other forms of education.

See the case of A.G. Lagos State V Eko Hotels Ltd (2006) 18 NWLR (Pt. 1011) 378, where the Supreme Court held as follows:
Under section 4(7) of the Constitution of the Federal Republic of Nigeria, 1999 the House of Assembly of a State is restricted to make laws on matters not included in the Exclusive Legislative List set out in part 1 of the Second Schedule to the Constitution. It can only make laws on matters included in the Concurrent Legislative List set out in the first column of part II of the Second Schedule to the said Constitution, to the extent prescribed in the second column opposite thereto. The House of Assembly of a State can also make laws on any other matter with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. The subsection clearly vindicates the concept of federalism which Nigeria operates. [A.-G., Abia State v. A.-G., Fed. (2002) 6 NWLR (Pt. 763) 264; A.-G., Ondo State v. A.-G., Fed. (2002) 9 NWLR (Pt. 772) 222; A.-G., Lagos State v. A.-G., Fed. (2003) 12 NWLR (Pt. 883) 1 referred to.] (P.457, paras. C-F)

In the case of AG Lagos State V Eko Hotels Ltd (Supra) the Supreme Court further held as follows:
Since the Companies and Allied Matters Act, 1990 has copiously and comprehensively provided for the floatation of and transfer of shares, the terms of reference of the Tribunal of Inquiry set up by the appellant fall within the precinct or purview of Item 32 of the Exclusive Legislative List of the 1999 Constitution, which is within the legislative competence of the National Assembly. Moreover, the respondents qualify as bodies corporate within the meaning of Item 32 as they are companies within the meaning of the Companies and Allied Matters Act, 1990. The purported making of Lagos State Legal Notice No. 10 of 1999 constituting the Tribunal of Inquiry was, therefore, ultra vires. Accordingly, the Lagos State Government had no legislative competence to set up a Tribunal of Inquiry to probe the acquisition of shares of the 2nd respondent by the 1st respondent (P. 430, paras. A-B)

We submit most humbly, that given the clear provisions in the concurrent legislative list, in Part 11, Second Schedule to the Constitution, state Houses of Assembly in Nigeria, lack the competence, to legislate, or make laws as it relates to government security established by law and cannot purport to make any law establishing a state or regional security.

Furthermore, the powers of the Governor of a State are limited only to the items for which the state House of Assembly for the time, has the powers to legislate on. We humbly refer this Honourable Court to the case of APC V ESIEC (2021) 16 NWLR (Pt. 1801) 1, where the Supreme Court held as follows:

The powers of the governor of a state are as circumscribed under section 5(2) of the 1999 Constitution (as amended), which states that subject to the provisions of the Constitution, the executive powers of a state: shall be vested in the governor of a State and may subject as stated in the provision and the provisions of any law by a House of Assembly, be exercised by him either directly or through the Deputy Governor, Commissioners of the Government of that State or officers in the public service of the (a) state; and shall extend to the ex*****on and maintenance of the Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has, for the time being, (b) powers to make laws. (P. 69, paras. D-G)
See the case of Towoju V Gov of Kwara State (2005) 18 NWLR (Pt. 957) 324, where it was held as follows:
By virtue of section 5(2) of the 1999 Constitution, a governor of a State has the executive powers to run the affairs of his State. Such powers include but is not limited to the ex*****on and maintenance of the Constitution, all laws made by the House of Assembly and to all matters with respect to which the House of Assembly has for the time being power to make laws. (Pp. 352-353, paras. G-D)

See further, the case of A.G of Lagos V Eko Hotels Ltd (Supra) where it was further held as follows:

By virtue of section 20 of the Tribunals of Inquiry Law, Cap. 20, Laws of Lagos State, 1994 which provides that the powers conferred by the law upon the Governor may be exercised by him in respect of any matter in the legislative competence of Lagos State, the Governor of Lagos State is only competent to set up a Tribunal of Inquiry in respect of matters which the House of Assembly of Lagos State can legislate under section 4(7) of the Constitution. The Governor of Lagos State cannot set up a Tribunal of Inquiry in respect of matters in the Exclusive Legislative List, which are reserved for the National Assembly to legislate. Thus, in the instant case, the act of Governor of Lagos State in setting up the Tribunal cannot be said to be ultra vires, but the powers conferred on the Tribunal being related to shares in a company, are ultra vires, null and void. (P. 459, paras. D-F)

It is our respectful submission that in interpreting the provisions of the Constitution cited above, a narrow meaning should not be given to it. Rather, a wide and liberal interpretation ought to be applied unless there is express provision to the contrary and this must be done to carry out or give effect to, the intention of the makers of the Constitution. See the following cases; [Rabiu v. State (1981) 2 NCLR 293; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506; A.-G., Ondo State v A.-G., Federation (2002) 9 NWLR (Pt. 772) 222; Alegbe v. Oloyo (1983) 2 SCNLR 35 referred to.] (Pp. 117, paras. G-H; 159, paras. C-E).

It is our respectful submission that the makers of the Constitution of the Federal Republic of Nigeria did not intend, given, the peculiar nature of Nigeria, to give the federating states, powers over regional securities in each state of the Federation. This is manifest given the provisions of items 45 and 68 in the exclusive legislative list.

We submit most humbly that the object of interpreting a statute or the Constitution is to discover the intention of the legislature, which intention is usually deduced from the language used. Therefore, the golden rule of interpretation of constitutional provisions is that the words of the Constitution must, prima facie, be given their ordinary meaning, which means that the court must look closely at the words used in the provisions and assign them their ordinary meanings if the words are not ambiguous. The court must also give the words a liberal interpretation. The approach of the court to the construction of the Constitution should be one of liberalism. It is not the duty of the court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve. [Rabiu v. State (1981) 2 NCLR 293; Senate v. Momoh (1983) 4 NCLR 269; A.-G., Bendel v. A.-G., Federation (1982) 3 NCLR 1; Awolowo v. Shagari (1979) 6 - 9 SC 51; Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt. 123) 539; Egolum v. Obasanjo (1999).

See also the case of AG Abia State V AG Federation (Supra) where the Apex Court held as follows:
The court should, when interpreting the provisions of the Constitution, bear in mind that the function of the Constitution is to establish a framework and principles of government, broad and in general terms, intended to apply to the varying conditions which the development of our plural and dynamic society must involve. Therefore, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should, whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the test or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution. [Rabiu v. Kano State (1982) 2 NCLR 117; Aqua Ltd. v. Ondo State Sports Council (1985) 4 NWLR (Pt.91) 622; Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt.117) 517; Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 referred to.]

We submit that the makers of the 1999 Constitution of the Federal Republic of Nigeria, knew, the diversities in ethnic, religious and cultural composition of Nigeria, hence they decided to centralize the issues about the establishment of government security by law, by including it as item 45, in the exclusive legislative list. We submit humbly, that by this singular act, the drafters of the 1999 Constitution effectively removed the establishment of any government security by law, within the powers of the federating states in Nigeria. To better understand this, we shall give a brief historical perspective and development of the Nigeria Police.

Nigeria Police exists as a force to provide, security for Nigerians. It was established in 1930 by the colonial government. Before 1930, we had the Hausa Constabulary, established in 1879, the Royal Niger Company Constabulary (1888), the Niger Coast Constabulary (1894), and the Lagos Police, which was established in 1896.

like Nigeria before it in 1914, the different police forces were merged for, administrative convenience. From that moment on, the police was administered from Lagos.

In 1960, at our independence, the police was also centrally controlled by the Federal Government. However, Nigeria’s first Constitution after independence gave each region in Nigeria, the right to have regional police forces while the FG retained oversight with Nigeria Police Force. However, because of the role of the Northern Police forces in the pogroms of 1966, the Gowon regime disbanded the regional police forces. The process of disbandment started in October 1966 and was complete by the end of 1972.

The 1979 Constitution gave the Federal Government exclusive control over the Nigeria Police Force. This centralization of the control of the police was also retained by the 1999 Constitution of the Federal Republic of Nigeria, as amended. We submit given this brief history of the Nigeria Police, that the framers of the 1999 Constitution of the Federal Republic of Nigeria, never intended any state, or region to have separate police, under any guise or name whatsoever. It will have to take the amendment of the constitution before any state of the Federation, can legally create its police under any guise whatsoever.

See section 214 of the Constitution which provides as follows:
There shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions of this section no other police force shall be established shall be established for the federation or any part thereof.
See the case of IGP V Ikpala (2016) 9 NWLR (Pt. 1517) 236, where it was held as follows:
By section 214(2)(b) of the constitution of the federal republic of Nigeria, 1999 (as amended), the Nigeria Police Force established under section 214(1) is primarily saddled with the enormous responsibility of maintaining law and order in the society. A very difficult, tasking and at times dangerous duty every reasonable person living in this country would readily admit. The functions as are more specifically provided for in section 4 of the Police Act are for the prevention and detection of crime, apprehension of offenders, the preservation of life and property, the due enforcement of all laws and regulations which they are directly charged with and the performance of such military duties within and outside Nigeria as may be required of them by or under the authority of the Police Act or any other Act of Parliament in Nigeria. (P. 287, paras. E-G)
See section 2(1) of the Constitution of the Federal Republic of Nigeria, which provides as follows:
Nigeria is one indivisible and indissoluble sovereign state known by the name of the Federal Republic of Nigeria.
We submit that the reference to single police for Nigeria, in section 214 of the Constitution, clearly indicates that there cannot be any other further regional police in Nigeria under any guise whatsoever. This is especially given the provisions of items 45 and 68 in Part 1, of the Second Schedule to the Constitution, which took away the powers of a state in the Federation to legislate on government security services established by law.

We submit most humbly that the Constitution of the Federal Republic of Nigeria, 1999, as altered, having made exhaustive provisions as it relates to having one police in the entire Federation, has covered the field, of policing in Nigeria, consequently, no State House of Assembly, can make any other law about state policing, or establishment of any other state security to assist the police, in the performance of its duties. See section 214 and items 45 and 68 of the 1st Schedule Part 1 of the Constitution of the Federal Republic of Nigeria. See the case of INEC V Musa (2003) 3 NWLR (Pt. 806) 72, where it was further held as follows:
Howsoever it is described, where the constitution has covered the field as to the law governing any conduct, the provision of the constitution is the authority statement of the law on the subject. The constitution would not have 'covered the field' where it has expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the constitution has enacted must show that and how, it has derived its legislative authority to do so from the constitution itself.

The writer is, therefore, of the firm view, given the foregoing submissions, that it is not within the constitutional powers of either the state governors or the state houses of Assembly in the Federal Republic of Nigeria, to establish state security outfit under any name whatsoever. It is illegal, unlawful and unconstitutional for any state in the Federal Republic of Nigeria, to purport to establish its state security.

Nkem Okoro Esq
Human Rights Activist & Constitutional Lawyer