Delta State Attorney General and the Warri North LG case
By
Shed of Justice FOM Atake’s occasional excursions down memory lane in his article titled "Justice Odita should please explain," published in Vanguard newspaper of 18th January, 2001, and the incredible insults, insinuations and innuendos contained in Delta State Attorney General, Professor Amos Utuama’s press release/rejoinder," also published in "Vanguard" newspaper of 12th March, 2001, the issues in the above mentioned suit institute by the Itsekiri of Warri South-West Local Government Area of Delta State (represented by Pa Mene Asin and others) against the Delta State government (represented by the State’s Attorney General and Commissioner for Justice) and others, are simple and easily comprehensible even to non-lawyers.
Warri South-West Local Government with headquarters at Ogidigben, an ancient Itsekiri town strategically located at the heart of the potential Escravos-Benin River (Odo-Okun) industrial triangle, in the Western Niger Delta, was one of the new local governments created by the federal government in the states and local governments creation exercise of 1966/97 under Decrees Nos. 36 of 1996 and 7 of 1997. It is the third local government in the Itsekiri homeland, the other two being Warri South Local Government with headquarters at Warri, and Warri North Local Government with headquarters at Koko.
Details of the genocidal unleashed on the defenseless Itsekiri, their settlements and property by Ijaws in Delta State, supported by their kith and kin across the Niger Delta, claiming that Warri South-West Local Government (the local government) was created for their ethnic group with headquarters at Ogbe-Ijoh (an Ijaw enclave on the Warri mainland close to Aladja in Udu Local Government Area of Delta State), and the encouragement and support which they received from Colonel John David Dungs, Delta State Government, with the acquiescence of General Sani Abacha’s administration in Abuja, need not detain us. Suffice it to say that when the incumbent Chief James Ibori’s Delta State Government assumed office on 29th May, 1999, the headquarters of the local government was at Ogidigben.
One of the instant measures taken by the government, albeit for reasons of political expediency and regardless of principle and legality, was to appease the Ijaws in their simmering attacks on the Itsekiri. This it did by getting the State House of Assembly to enact the Local Government Law No.3 headquarters from Ogidigben to Ogbe-Ijoh. Suit No. A/777/99 is all about the validity and effect, if any, of the state government’s action.
Decree No. 7 of 1997 was repealed by Decree No. 16 of 1998, leaving Decree No. 36 of 1996 as the only relevant law on the creation of local government areas and their respective headquarters. By virtue of Section 315 of the 1999 Constitution, Decree No. 36 is deemed to be an existing law (Act) duly enacted by the National Assembly. And Section 4(5) of the Constitution provides that "if any law enacted by state house of assembly is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and the other law (made by the state house of assembly) shall to the extent of the inconsistency be void."
With respect, Professor Utuama’s argument that the state government acted pursuant to Section 7 of the Constitution which deals with "local government system" is mere subterfuge, an attempt to avoid the fundamental issue raised by the Itsekiri, that the State Government’s Local Government Law No. 3 of 1999 is inconsistent with Decree No.36 of 1996 and therefore void.
Pa Mene Asin and others instituted their action to stop the unlawful and purported transfer of the local government headquarters from Ogidigben to Ogbe-Ijoh. "The position prevailing" and, therefore, "the status quo," even on the authority of Ayorinde v. A-G of Oyo State (1996) 3NWLR Part 434 at page 20 relied on by Professor Utuama in his press release/rejoinder under reference, is Warri South-West Local Government with headquarters at Ogidigben. If it were otherwise, a thief or trespasser can enter upon your land and claim that his presence there represents "the position prevailing" or "the status quo," and not the position prior to his entry on the land. See Gov. Of Lagos State v. Ojukwu (1986) 1NWLR Part 18 at Page 621.
The implications of Justice Odita’s failure to deliver judgement in Suit No. A/777/99 even after dribbling the parties around a la maradona for seven months, from the date of conclusion of final address on 15th May, 2000 until he retired from the bench in December, 2000, are particularly serious in the context of Delta State which is a geographical expression of mutually incompatible and antagonistic ethnic groups and the Urhobos by themselves constitute the largest and dominant single ethnic group in the state. The parties who are directly injured by Justice Odita’s unbelievable abdication of his responsibility in the circumstances are the Itsekiri who institute the action and are very anxious to have a judicial pronouncement on their claim.
As of May, 2000 there were 27 judges of the High Court of Delta State, comprising 16 Urhobo, seven Delta Ibo, two Itsekiri, one Ijaw and one Isoko. That notwithstanding, the state’s chief judge and senior judges in charge of the various judicial divisions seemed to have worked out an arrangement for assignment of contentious cases. Of particular interest is what appears to be an unwritten law that suits affecting the rights and duties of contending ethnic groups should, as far as possible, be assigned to a neutral judge, meaning, one who does not come from any of the contending ethnic groups.
To take just one example, when in January, 1992 the Felix Ibru Delta State Government purported to create for Urhobo settlers in Warri two posts of rival "traditional rulers" to the Olu of Warri, the clan head of Okere" and the "clan head of Agbarha" and the Itsekiri challenged the government’s action in court in Warri, it was Justice J.A. Obi, a Delta Ibo, who is neither Urhobo nor Itsekiri, who was assigned both cases by Justice M. Unurhoro, the then senior judge in Warri, and himself an Urhobo from Okpara in Ethiope Local Government Area of Delta State. Justice Unurohro did so to uphold the highest standards of his oath of office to ensure that justice must not only be done, it must be seen manifestly to have been done.
Justice Obi first heard the "clan head of Okere" suit, and in September, 1992, he delivered judgment in favour of the Itsekiri. His Lordship held that an "Okere Clan" or "Okere-Urhobo clan" does not exist and therefore, there can be no "clan head" or "Otota" of a non-existent clan in Warri township.
Obviously, the court’s decision in favour of the Itsekiri did not go down well with those Urhobos in politics, the professions, the civil service and the judiciary who see the Itsekiri and their cherished institutions, their culture and civilisation and the enormous resources of their homeland, as the issue in the government and politics of Delta State. They therefore, devised a scheme to ensure that the "Clan Head of Agbarha" suit was adjudicated upon by an Urhobo judge who would give judgement in their favour regardless of the law and the merits of the case. Justice J. Akpovi, an Urhobo from Agbarho in Ughelli Local Government of Delta State, was the chief judge of the state.
So, when the "Clan Head of Agbarha" suit came up for hearing before Justice Obi, there was tendered in court in order from Asaba transferring the case to Justice Unurhoro who, as senior judge in Warri, originally assigned the case to Justice Obi. Justice Unurhoro was obviously embarrassed, and when later the matter came up before him, he declined in open court to proceed with it unless and until the state counsel could satisfy him why he, and not Justice Obi, should hear and determine the matter. The state counsel was silent and the matter has been in the cooler ever since.
The Itsekiri who traveled all the way from Warri to Asaba to institute Suit No. A/777/99 believed that Justice Odita, being a Delta Ibo, who is neither Urhobo nor Itsekiri nor Ijaw, and as the most senior judge and head of the state’s judiciary, would do justice according to law and the merits of their case. They could not have imagined that the chief judge of a state could be so nonchalant and irresponsible. The universal call on Mr. President to publish the Justice Kayode Eso Report and implement its recommendations can bear repetition.
Professor Utuama’s "reaffirmation" of the Delta State Government’s confidence in the state’s judiciary and its independence and its belief in, and adherence to, due process and the rule of law, makes interesting reading. Good classroom, textbook stuff, no doubt! Fortunately, members of the public are more intelligent than he thinks. They know that many of those holding top positions at different levels of government in Nigeria today are the offshoot of late General Sani Abacha’s infamous regime. Many of them, before working for the maximum dictator, were jobless and koboless. But within a couple of years of joining the Abacha apparatchiki (men of the apparatus"), they had become so stingingly rich to the extent that some of them can beat their chest and arrogantly proclaim, even in official government publications, that they own vast financial and business interests across Europe and North America.
Like it is with dictators the world over, such people’s operational strategy in government in dealing with perceived opponents is well known. It is cool, calculated and precise. First, persuade them, and win them over to your side. If that fails, coerce them. And if that also fails, settle (bribe) them. Then if that fails, kill them. It is the height of intellectual dishonesty or political naivety to think that such people would care about, and support and enhance, the machinery of justice, democracy and the rule of law. The Delta State Attorney-General appeared personally for the state government during the proceedings. The law firm of Gani Fawenhinmi that appeared for the Itsekiri has not said or published anything outside the court room. It is Professor Utuama who has chosen to canvass the government’s case on the pages of newspapers in flagrant breach of the "sub-judice" rule, on the pretext of issuing a rejoinder to Justice Atake who was not a party, counsel or witness in the suit.
But, what did Justice Atake say to deserve the fire and brimstone from the Delta State Government? Is Justice Atake not entitled to ask Justice Odita to explain his failure to deliver judgement in this case? Does the Delta State Government not feel that Justice Odita’s conduct is capable of bringing the Delta State judiciary into disrepute? Does the Delta State Government care? Why is the government trying to cover up Justice Odita’s omission? The government is obviously pleased that justice has been frustrated and the case may be heard de novo, by an Urhobo judge, as the Ibru government tried to do in 1992 in the "clan head of Agbarha" suit mentioned above. We shall see. There is a certain aura of respect and respectability with which the general public endows university dons as the intellectual guardians of tomorrow’s leaders. In some countries, in difficult times of man’s inhumanity to man, some of them are often the lonely voices of their nation’s conscience. Professor Utuama, by his unwarranted and personal attacks on Justice Atake, may have forfeited much of the moral authority of his profession. The truth is that Amos Utuama sees himself principally as the political apologist of the Ibori government rather than the Commissioner (Minister) of Justice of, and for, all ethnic groups and the entire people of Delta State.
Mr. Golly, is a practicing attorney based in Warri, Delta State.