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| Oyewole. G. Sanmi: ‘When movement of election tribunal to another location is proper’ |
Oyewole Gboyega Sanmi (SAN) is the principal partner, Lords and Temple Attorneys. He was called to Bar in 1990. He got his LLB and LLM from Obafemi Awolowo University and later became Associate, Chartered Institute of Arbitrators (UK).
He served as the Attorney General and Commissioner for Justice, Ekiti State between 2006 and 2010. He was member, Body of Benchers, member, Council of Legal Education, member, Judicial Service Commission, Ekiti State, member and Ekiti State Economic Advisory Council.
He is a member of the governing council, Afe Babalola University, Ado-Ekiti since 2011 to date and also a member, governing council Baptist College of Theology.
The 2019 elections are over, but the fallouts are not. While those who are victorious are expectedly joyous, many of the “losers” definitely can’t take any of that. They are determined to test those electoral victories at the courts and there is the probability that most, if not all of those petitions would terminate at the apex court. However, some in the legal community are querying the legality of moving election petition tribunals out of the jurisdictions where the elections took place. A former Attorney General and Commissioner for Justice in Ekiti State, Oyewole Gboyega Sanmi (SAN) in this interview with YETUNDE AYOBAMI OJO said the movement of election petition tribunals to other jurisdictions or locations is in order. He also expressed views on other interesting issues.
Does the law support moving tribunal sitting out of jurisdiction?
In my view, the movement of an election tribunal to another jurisdiction or location is regular and proper upon due inauguration of the tribunal by the appropriate authority. This is in line with the decision of the Supreme Court in Wike’s case, which has been followed in several other cases, where the governorship election tribunal was moved from Rivers State to Abuja citing security reasons. The law provides that each State of the Federation shall have one or more election tribunals but the location/venue was not considered in the statute. The provision of Section 285 (2) 1999 Constitution leaves this issue open. It is a fact that election and election petitions are often contentious and heated, which often lead to breakdown of law and order. Therefore sitting of election tribunals out of jurisdiction for security reasons most especially for the safety of the tribunal members and witnesses is a valid ground provided it is approved by the tribunal. In most of the known cases, parties always agree on the movement to safer and more conducive venues.
How best can INEC reduce the numbers of political parties we currently have?
The powers of INEC are basically statutory. They are derived from the constitution and other enabling laws. It is the fundamental right of citizens to form or belong to any political party of their choice in accordance with Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and further affirmed by the Supreme Court in INEC V. BALARABE MUSA. However, pursuant to Section 78 (7a) (i)(ii) Electoral Act, 2010 (as amended), the Independent National Electoral Commission (INEC) is empowered to de-register political parties on the grounds of breach of any of the requirements for registration and for failure to win Presidential or Governorship election or a seat in the National or State Assembly election. The Independent National Electoral Commission (INEC) has been statutorily empowered to control and regulate the affairs of political parties under the enabling statute, and it is my view that such powers should be enforced to the letter in a bid to prevent a hopeless case of multiplicity of political parties without any meaningful contribution to the electioneering process as witnessed during the 2019 general elections.
What is your take on the campaign for the abolition of death penalty in Nigeria?
As against my personal opinion, the law remains the law. When I was Attorney General of Ekiti State, I was invited by the Federal High Court as amicus curiae to express my opinion on the subject matter. It was Hon Justice Ajakaye (rtd) of the Federal high court, who invited me. I stated clearly that by virtue of my stand as a believer in deterrence than retributive justice, death sentence should be abolished from our laws. The extant provisions of the law that mandates death sentence for some category of offences has failed to yield any meaningful results. Imagine a case where a 20 year old boy was charged to court for robing with a knife without any visible harm or injury to the victim, but was sentenced to death when obviously he may not be conscious of his action as a result of his age and susceptibility to delinquency associated with his age-bracket. I was able to use my office as the Attorney General in consultation with the Council of the State on prerogative of mercy to recommend commuttal of death sentence to life imprisonment for persons sentenced to death. Finally, we may have to resort to the amendment of the law as it stands now for us to change position of things.
There are also views that Land Use Act should be abolished. What is your position on this?
I want to believe that the Land Use Act is proper, right and good for the country. It is widely believed that the Act complicates things, but personally I am yet to see how it does. The Land Use Act makes the use and ownership of a land very predictable and certain. If all the land is vested in the government, government can use part of it for public purposes and also enable individuals acquire lands through the issuance of Certificate of Occupancy. The problem is not with the law but application of the law by the public officers. If they can act strictly and honestly, I do not see any problem with the law. The act of revoking certificate of occupancy citing overridden public interest only to re-allocate such land to private persons/cronies or allies of the government is a major impediment which I believe must be addressed as enunciated by the Supreme Court in Lawson v. Ogun State Government. The Land Use Act in ensuring that citizens are not unduly deprived of ownership of their land, also provides for payment of compensation after such revocation, but unfortunately most state governments have deliberately failed to pay them. We must however note the implication of the oil minerals act, which is however not an offshoot of the Land Use Act and other legislations that may be reviewed to empower land owners who have minerals embedded in them.
Do you subscribe to the view that academic qualifications for political office holders and legislatures be reviewed?
Yes, I think it is sufficient. What legislators need is to have knowledge of what the people require and not intelligence. A man may be educated but lacks the requisite knowledge of what his people want or what their expectations from government are, while another man may have no educational background but having lived within his immediate constituency, he can adequately make known the demands of his people and protect them where they may likely be infringed by any legislation or programme of government. Therefore, I advocate knowledge as a yardstick for public office as against educational qualification presently contained in the 1999 Constitution.
While governors and president have term limits, lawmakers have no such limitation. Do you support the call for term limit for the legislators?
I do not support limiting the term lawmakers can serve/spend in the legislature. The important point to be considered is whether he/she has the affirmation of his people who continue to vote him into the legislative house. However, I support part-time membership of the legislature and I also believe that they should be entitled to sitting allowances only, thereby enabling them to also play their respective roles in nation building. The legislature as presently constituted in Nigerian politics, starting from the councilors in the local government to the assembly members in the state houses of assembly and then the members of the national assembly are grossly overpaid. I feel that the earning should be based on the hours they spent on their assignments on daily basis. This way, the violence and the do or die contest would reduce considerably.
Is it legal to allocate oil block to individual?
The law is settled that allocation of oil blocks (often called Oil Prospecting License or Oil Mining Leases) is within the exclusive preserve of the Federal Minister of Petroleum Resources. However, the allocation of oil block/license may be granted only to a company incorporated in Nigeria under the Companies and Allied Matters Act or any corresponding law pursuant to Section 2 (2) of the Petroleum Act, Cap P10, Laws of the Federation of Nigeria, 2004. This position is good because it accommodates individuals with the necessary financial strength, who are behind corporate bodies, as oil exploration activities is capital intensive, which takes it beyond the reach of just anybody. I also support the recent clamour for allocation of oil blocks to States of the Federation as this will enable them raise adequate funds needed to drive the aims, objectives and programmes of government. Do not forget that oils and other minerals are our commonwealth. I also believe that the process should be made more open and transparent.
What is your view on local government autonomy?
The Constitution of the Federal Republic of Nigeria (Promulgation) Decree1989 was the only constitution, which expressly gave autonomy to the local government council as deduced from Article 5, Chapter VIII Part I, and Fourth Schedule Part I of the draft Constitution. The laudable provisions of the 1989 Constitution were unfortunately deleted/omitted from the 1999 Constitution, which made the local government subservient to the State government under the present Federal Accounts Allocation Committee (FAAC) arrangement. It is an established fact that the local government is the closest level of government to the people at the grassroots, and its autonomy is essential in bringing the dividends of democracy/government to the doorstep of the people.
Is it legal to withhold certificate of returns by the Independent National Electoral Commission (INEC) once results have been declared?
The law is trite that a candidate who is declared winner in an election duly conducted by the Independent National Electoral Commission (INEC) is entitled to a certificate of returns duly issued by the INEC within seven days of declaring the result of the election. The issuance of the certificate of returns is mandatory and does not give room to INEC to decide otherwise. It can therefore be deduced from the copious provision of Section 75 (1) of the Electoral Act, 2010 (as amended) that issuance of certificate of returns is subject to the declaration of a winner in the election by the INEC, and that INEC may not have any power to withhold the certificate of returns of a candidate who has been declared winner in an election as the provision of Section 75(1) appears mandatory. If the process is flawed, INEC is required to direct that fresh elections be conducted where elections were not held. Elections are held at polling stations, and subsequent collation remains only an arithmetic exercise. This matter may be subjudice hence, I do not want to say more, the courts will direct as
appropriate.
As an associate of Chartered Institutes of Arbitrators, how do you think arbitration can aid dispensation of justice?
I am personally of the view that parties should resort to arbitration or generally, alternative disputes mechanisms for obvious reasons, which include the facts of the congestion of the regular courts that often resorts in the slow-down of the adjudication process. A further factor is acrimony. There is a popular saying that you cannot go to court and remain friends. This obliterated in arbitration proceedings. Nigeria as a developing economy desires to attract investors. The terrain would be made less tedious, more predictable and friendly. This is what arbitration offers. Thankfully, the new Lagos Civil Procedure Rules 2019 favors this position where it clearly states in its overriding objectives that the court shall further the overriding objectives by actively managing cases and active managing cases includes mandating the parties to use an alternative dispute resolution mechanism (ADR) where the court considers it appropriate and facilitating the use of such procedure in order 2(1)(c).
In this article:
He served as the Attorney General and Commissioner for Justice, Ekiti State between 2006 and 2010. He was member, Body of Benchers, member, Council of Legal Education, member, Judicial Service Commission, Ekiti State, member and Ekiti State Economic Advisory Council.
He is a member of the governing council, Afe Babalola University, Ado-Ekiti since 2011 to date and also a member, governing council Baptist College of Theology.
The 2019 elections are over, but the fallouts are not. While those who are victorious are expectedly joyous, many of the “losers” definitely can’t take any of that. They are determined to test those electoral victories at the courts and there is the probability that most, if not all of those petitions would terminate at the apex court. However, some in the legal community are querying the legality of moving election petition tribunals out of the jurisdictions where the elections took place. A former Attorney General and Commissioner for Justice in Ekiti State, Oyewole Gboyega Sanmi (SAN) in this interview with YETUNDE AYOBAMI OJO said the movement of election petition tribunals to other jurisdictions or locations is in order. He also expressed views on other interesting issues.
Does the law support moving tribunal sitting out of jurisdiction?
In my view, the movement of an election tribunal to another jurisdiction or location is regular and proper upon due inauguration of the tribunal by the appropriate authority. This is in line with the decision of the Supreme Court in Wike’s case, which has been followed in several other cases, where the governorship election tribunal was moved from Rivers State to Abuja citing security reasons. The law provides that each State of the Federation shall have one or more election tribunals but the location/venue was not considered in the statute. The provision of Section 285 (2) 1999 Constitution leaves this issue open. It is a fact that election and election petitions are often contentious and heated, which often lead to breakdown of law and order. Therefore sitting of election tribunals out of jurisdiction for security reasons most especially for the safety of the tribunal members and witnesses is a valid ground provided it is approved by the tribunal. In most of the known cases, parties always agree on the movement to safer and more conducive venues.
How best can INEC reduce the numbers of political parties we currently have?
The powers of INEC are basically statutory. They are derived from the constitution and other enabling laws. It is the fundamental right of citizens to form or belong to any political party of their choice in accordance with Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and further affirmed by the Supreme Court in INEC V. BALARABE MUSA. However, pursuant to Section 78 (7a) (i)(ii) Electoral Act, 2010 (as amended), the Independent National Electoral Commission (INEC) is empowered to de-register political parties on the grounds of breach of any of the requirements for registration and for failure to win Presidential or Governorship election or a seat in the National or State Assembly election. The Independent National Electoral Commission (INEC) has been statutorily empowered to control and regulate the affairs of political parties under the enabling statute, and it is my view that such powers should be enforced to the letter in a bid to prevent a hopeless case of multiplicity of political parties without any meaningful contribution to the electioneering process as witnessed during the 2019 general elections.
What is your take on the campaign for the abolition of death penalty in Nigeria?
As against my personal opinion, the law remains the law. When I was Attorney General of Ekiti State, I was invited by the Federal High Court as amicus curiae to express my opinion on the subject matter. It was Hon Justice Ajakaye (rtd) of the Federal high court, who invited me. I stated clearly that by virtue of my stand as a believer in deterrence than retributive justice, death sentence should be abolished from our laws. The extant provisions of the law that mandates death sentence for some category of offences has failed to yield any meaningful results. Imagine a case where a 20 year old boy was charged to court for robing with a knife without any visible harm or injury to the victim, but was sentenced to death when obviously he may not be conscious of his action as a result of his age and susceptibility to delinquency associated with his age-bracket. I was able to use my office as the Attorney General in consultation with the Council of the State on prerogative of mercy to recommend commuttal of death sentence to life imprisonment for persons sentenced to death. Finally, we may have to resort to the amendment of the law as it stands now for us to change position of things.
There are also views that Land Use Act should be abolished. What is your position on this?
I want to believe that the Land Use Act is proper, right and good for the country. It is widely believed that the Act complicates things, but personally I am yet to see how it does. The Land Use Act makes the use and ownership of a land very predictable and certain. If all the land is vested in the government, government can use part of it for public purposes and also enable individuals acquire lands through the issuance of Certificate of Occupancy. The problem is not with the law but application of the law by the public officers. If they can act strictly and honestly, I do not see any problem with the law. The act of revoking certificate of occupancy citing overridden public interest only to re-allocate such land to private persons/cronies or allies of the government is a major impediment which I believe must be addressed as enunciated by the Supreme Court in Lawson v. Ogun State Government. The Land Use Act in ensuring that citizens are not unduly deprived of ownership of their land, also provides for payment of compensation after such revocation, but unfortunately most state governments have deliberately failed to pay them. We must however note the implication of the oil minerals act, which is however not an offshoot of the Land Use Act and other legislations that may be reviewed to empower land owners who have minerals embedded in them.
Do you subscribe to the view that academic qualifications for political office holders and legislatures be reviewed?
Yes, I think it is sufficient. What legislators need is to have knowledge of what the people require and not intelligence. A man may be educated but lacks the requisite knowledge of what his people want or what their expectations from government are, while another man may have no educational background but having lived within his immediate constituency, he can adequately make known the demands of his people and protect them where they may likely be infringed by any legislation or programme of government. Therefore, I advocate knowledge as a yardstick for public office as against educational qualification presently contained in the 1999 Constitution.
While governors and president have term limits, lawmakers have no such limitation. Do you support the call for term limit for the legislators?
I do not support limiting the term lawmakers can serve/spend in the legislature. The important point to be considered is whether he/she has the affirmation of his people who continue to vote him into the legislative house. However, I support part-time membership of the legislature and I also believe that they should be entitled to sitting allowances only, thereby enabling them to also play their respective roles in nation building. The legislature as presently constituted in Nigerian politics, starting from the councilors in the local government to the assembly members in the state houses of assembly and then the members of the national assembly are grossly overpaid. I feel that the earning should be based on the hours they spent on their assignments on daily basis. This way, the violence and the do or die contest would reduce considerably.
Is it legal to allocate oil block to individual?
The law is settled that allocation of oil blocks (often called Oil Prospecting License or Oil Mining Leases) is within the exclusive preserve of the Federal Minister of Petroleum Resources. However, the allocation of oil block/license may be granted only to a company incorporated in Nigeria under the Companies and Allied Matters Act or any corresponding law pursuant to Section 2 (2) of the Petroleum Act, Cap P10, Laws of the Federation of Nigeria, 2004. This position is good because it accommodates individuals with the necessary financial strength, who are behind corporate bodies, as oil exploration activities is capital intensive, which takes it beyond the reach of just anybody. I also support the recent clamour for allocation of oil blocks to States of the Federation as this will enable them raise adequate funds needed to drive the aims, objectives and programmes of government. Do not forget that oils and other minerals are our commonwealth. I also believe that the process should be made more open and transparent.
What is your view on local government autonomy?
The Constitution of the Federal Republic of Nigeria (Promulgation) Decree1989 was the only constitution, which expressly gave autonomy to the local government council as deduced from Article 5, Chapter VIII Part I, and Fourth Schedule Part I of the draft Constitution. The laudable provisions of the 1989 Constitution were unfortunately deleted/omitted from the 1999 Constitution, which made the local government subservient to the State government under the present Federal Accounts Allocation Committee (FAAC) arrangement. It is an established fact that the local government is the closest level of government to the people at the grassroots, and its autonomy is essential in bringing the dividends of democracy/government to the doorstep of the people.
Is it legal to withhold certificate of returns by the Independent National Electoral Commission (INEC) once results have been declared?
The law is trite that a candidate who is declared winner in an election duly conducted by the Independent National Electoral Commission (INEC) is entitled to a certificate of returns duly issued by the INEC within seven days of declaring the result of the election. The issuance of the certificate of returns is mandatory and does not give room to INEC to decide otherwise. It can therefore be deduced from the copious provision of Section 75 (1) of the Electoral Act, 2010 (as amended) that issuance of certificate of returns is subject to the declaration of a winner in the election by the INEC, and that INEC may not have any power to withhold the certificate of returns of a candidate who has been declared winner in an election as the provision of Section 75(1) appears mandatory. If the process is flawed, INEC is required to direct that fresh elections be conducted where elections were not held. Elections are held at polling stations, and subsequent collation remains only an arithmetic exercise. This matter may be subjudice hence, I do not want to say more, the courts will direct as
appropriate.
As an associate of Chartered Institutes of Arbitrators, how do you think arbitration can aid dispensation of justice?
I am personally of the view that parties should resort to arbitration or generally, alternative disputes mechanisms for obvious reasons, which include the facts of the congestion of the regular courts that often resorts in the slow-down of the adjudication process. A further factor is acrimony. There is a popular saying that you cannot go to court and remain friends. This obliterated in arbitration proceedings. Nigeria as a developing economy desires to attract investors. The terrain would be made less tedious, more predictable and friendly. This is what arbitration offers. Thankfully, the new Lagos Civil Procedure Rules 2019 favors this position where it clearly states in its overriding objectives that the court shall further the overriding objectives by actively managing cases and active managing cases includes mandating the parties to use an alternative dispute resolution mechanism (ADR) where the court considers it appropriate and facilitating the use of such procedure in order 2(1)(c).
In this article: