Maina: Malami Did Not Act In the Public Interest – Jiti Ogunye

Jiti Ogunye

Following the public outcry and condemnation that have trailed the revelation that the honourable attorney general of the federation, Abubakar Malami, SAN (the AGF) was the authority in the Federal Government of Nigeria who initiated and instigated the administrative processes that led to the reinstatement and promotion of Mr. Abdulrasheed Abdullahi Maina, the pension scam fugitive, the AGF, in breaking his deafening silence, was reported to have said in his own defence, that he acted in the public interest. Since then a number of Nigerians have come to the defence of the AGF. In doing so, they relied on the reports that there were two subsisting, valid and yet to be appealed “judgments of the courts”, in favour of Maina, which the AGF was merely rendering legal advice on. According to the AGF’s sympathisers now dotting the social media and cyber space, if Maina had obtained court orders which the EFCC did not appeal against, what could have been the good reason for the federal government to flout the orders, and why should the honourable AGF be crucified for advising the government to obey the orders, being the chief law officer of the federation?

In this intervention, we wish to provide clarifications on the “court judgments” that were won by Maina, and argue that the imports of the “judgments” do not support the legal advice and directive issued to the Federal Civil Service Commission (FCSC), Office of the Head of Civil Service of the Federation (OHCSF), and the Ministry of the Interior to make them recall Maina and reinstate him into the Civil Service of the Federation. The AGF, in our humble view, acted illegally, immorally, and improperly. He misled the above mentioned institutions and the Federal Government of Nigeria. Whether he did so, conspiratorially and deliberately, in concert with these institutions, in order to pervert the cause of justice, as a result of corrupt practices, or whether he did so inadvertently (or capriciously), owing to a lack of sound legal knowledge from his team of lawyers, may not be known at this point. But there can be no doubt that the AGF acted without legal justification. Having so acted, the least he can do is to accept responsibility instead of trying, through proxies, to wriggle out of the Maina mess by engaging in sophistry and spin. The AGF did not act in the public interest.

The truth is that there were no two judgments that were secured by Maina. He only secured a judgment of a high court and a ruling of a magistrate court in Abuja. When the Seventh Senate directed in 2013 that a warrant of arrest be issued against Maina upon his refusal to heed the summons of Senate Committees to appear for a hearing, Maina filed an action (Suit No. FHC/ABJ /CS/65/13 (Abdulrasheed Maina vs the Senate of the Federal Republic of Nigeria & 8 Ors), for the enforcement of his fundamental rights (to liberty and fair hearing) before a Federal High Court, Abuja, presided over by Hon. Justice Adamu Bello of the Abuja Division of the Federal High Court. The Respondents in the suit were the Senate, Senate president, clerk of the Senate, Senate Committee on Establishment and Public Service, Senate Committee on State and Local Government Administration, inspector-general of Police, attorney general of the federation, Senator Alloysius Etok and Senator Kabiru Gaya. Instructively, the FCSC, Maina’s employer, was not made a party to that Suit, and no relief pertaining to his employment was claimed or granted in that suit. No such relief could have been claimed in the suit, anyway, because his institution and filing of that suit predated his dismissal from service on account of his absconding from duty or absenting himself from work, without leave. The reliefs sought by Maina in the suit were to quash the warrant of arrest issued against him by the Police and to prohibit (by an order of perpetual injunction) his arrest, by the inspector-general of Police, based on that warrant.

In its Judgment, delivered on March 27, 2013, the Court quashed the warrant of arrest that was issued against Maina. The Court held that since the summons issued by the Senate to secure the appearance and attendance of Maina before a Senate Committee’s hearing was not in accordance with Section 88 (1) of the Constitution of the Federal Republic of Nigeria, 1999, the warrant of arrest predicated thereon, and issued against Maina for refusing to heed the summons, was illegal and thus must be set aside. Having set aside the warrant, the Court granted Maina an order of perpetual injunction restraining all the respondents, jointly and severally, from arresting him, based on that voided warrant of arrest.

It is clear that in his judgment, Hon. Justice Adamu Bello did not absolve Maina of any criminal allegations that were pending against him, and from being investigated by the Economic and Financial Crimes Commission (EFCC). The judgment, which was delivered on March 27, 2013, did not determine, and could not have decided the charges that were later filed in 2015 against Maina by the EFCC, before Hon. Justice Kolawole of the Federal High Court. It should be noted also that the warrant of arrest issued and procured by the Police, which was nullified by Hon. Justice Adamu Bello was different and separate from the warrant for the arrest of Maina, which was later procured by the EFCC from a magistrate court in 2015.

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Apart from that judgment, there was a ruling that was obtained by Maina against the warrant for his arrest, which the EFCC had procured on October 27, 2015 in the Chief Magistrate Court, FCT, Abuja, presided over by Chief Magistrate Ahmed Usman Shuaibu. The ruling secured by Maina (which is now being inappropriately referred to as the second judgment) was delivered in May, 2016. The ruling voided the said warrant of arrest earlier obtained by the EFCC. The chief magistrate based his ruling voiding the warrant of arrest on the ground that his court lacked the jurisdiction to have granted the warrant in the first instance. The ruling followed the application that was brought by Maina through his counsel. It should be noted, however, that by the vacation of that warrant of arrest, the EFCC was not precluded from obtaining another warrant of arrest in order to bring Maina, a fugitive, to justice.

In a separate criminal action, Maina was on July 21, 2015 charged by the EFCC, alongside Stephen Oronsaye, Osarenkhoe Afe and Fredrick Hamilton Global Services Limited, before Hon. Justice Gabriel Kolowole of the Federal High Court, Abuja in a 24-count charge bordering on procurement fraud and obtaining property by false pretences. While Stephen Oronsaye and the two others were in Court, Maina was not, for he was at large, although he was represented by counsel, Esther Uzoma. Since he was not produced in Court, the charge could not be prosecuted against him. Since the law does not permit that he be tried in absentia, he was not prosecuted and was neither discharged nor found guilty. It is, therefore, erroneous for anyone to argue that since Maina still enjoys the presumption of innocence until he is found guilty, he is entitled to be reinstated as a public servant.

It should be noted that all charges instituted by the EFCC are initiated and commenced in the name of the Federal Republic of Nigeria – FRN – and are deemed to be so instituted under the power of public prosecution donated to the AGF by Section 174 of the Constitution, meaning that the AGF is deemed, in a sense, to have initiated such charges and he is presumed to know that such charges are brought. Thus, the AGF ought to have ensured, upon Maina’s re-emergence and appearance, that he was made to face his prosecution, instead of assuming the role of his advocate and solicitor, insistently demanding for his reinstatement in the public service.

Now, let us examine how the AGF, the chief law officer of the federation, related to and interpreted these court decisions and proceedings in his letters, advising and directing that Maina be reinstated into office, more than four years after Maina’s dismissal on March 5, 2013.

The AGF first wrote a letter to the FCSC on February 21, 2017, demanding for the reinstatement of Abdulrasheed Maina. The letter was in response to the letter of the FCSC to the AGF, dated February 1, 2017. In other words, the first letter of the AGF was in response to the letter of the FCSC to him on the subject.

In the letter, entitled “Re: Demand for Update on the Reinstatement of Mr. Abdulrasheed Abdullahi Maina as Director in the Federal Civil Service”, the AGF reasoned that since the query issued to Maina, reference no. MI30040//1/3, dated February 15, 2013, and his eventual dismissal vide a letter dated March 5, 2013 were “predicated” on the warrant of arrest issued against him by the Police, his dismissal should be lifted and he should be reinstated, in view of the judgment of court voiding the said warrant of arrest.

The AGF wrote another letter dated April 27, 2017, reminding the FCSC of his earlier letter and directing that Maina be reinstated. The AGF’s letter of April 27, 2017, with Ref. No. HAGF/FCSC/2017/Vol. 1/3, addressed to the chairman, FCSC and entitled “Re: Demand for update on the re-instatement of Mr. Abdulrasheed Abdulahi Maina as Director in the Federal Civil Service”, read as follows:

“Your letter on the above captioned subject matter refrenced FCSC/CHMN/OC/17/Vol. XIV/209 dated 3rd March 2017 and the letters copied to the Office of the Honourable Attorney General of the Federation by the office of the Head of the Civil Service of the Federation on the same subject matter respectively referenced HCSF/LU/COR/FCSC/749/III/84 dated 27th March 2017 and 20th April 2017 refer (copies attached).

“You would recall that I wrote your office vide a letter refrenced HAGF/FCSC/2017/Vol. 1/2 dated 21 February 2017 wherein I drew your attention to the legal import of the judgment delivered by his Lordship, Honourable Justice A. Bello of the Federal High Court, Abuja Judicial Division on Wednesday the 27th day of March, 2013 in suit No FHC/ABJ/CS/65/13 (Abdulrasheed Maina vs the Senate of the Federal Republic of Nigeria & 8 Ors), a suit in which my office represented the Federal Government of Nigeria.

“In my said letter, I directed your office to give a consequential effect to the said judgment which voided the warrant of arrest issued by the Police against Dr. Abdulrasheed A. Maina, which warrant of arrest formed the basis for the query referenced MI/30040/1/1, dated the 15th day of Febraury, 2013 and his eventual dismissal from the service of the Federal Government of Nigeria on the 5th day of March 2013. Having reviewed all the correspondence vis-a-vis the court judgment. I hereby write to reiterate my earlier directive and further direct that you give a consequential effect to the aforesaid judgment by taking necessary steps to ensure immediate reinstatement of Dr. Maina to his duty post as a Director in the Federal Civil Service to enable him continue his service to the Federal Government of Nigeria.

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“Please accept, Honourable Chairman, the assurances of my best regards always”.

The letter was copied to the head of service of the federation and the permanent secretary, Ministry of Interior.

Based on the second letter of the AGF, the FCSC met on June 14, 2017. At the end of its meeting, it requested the Office of the Head of the Civil Service of the Federation (OHCSF), vide a letter referenced FC.4029/82/Vol. III/160, and dated June 21, 2017, to advise the permanent secretary of the Ministry of Interior to consider the AGF’s letter, the officer (Maina)’s case and make appropriate recommendations to the FCSC. The OHCSF was said to have advised the Ministry of Interior, as requested by the FCSC, to deliberate on the matter of Maina’s reinstatement. That role, however, has been disavowed by Mrs. Oyo Ita, the head of civil service of the federation, in a press statement issued by her office.

Subsequently and in line with the “directive” of the OHCSF, the Ministry of Interior, at its Senior Staff Committee’s meeting held on June 22, 2017, acted on the AGF’s letter and recommended that Maina be reinstated into the public service as deputy director on salary grade level 16. Thereafter, the FCSC, on August 16, 2017 approved the reinstatement of Maina with effect from the date he was earlier dismissed from service. The FCSC further gave approval for Maina to sit for the next promotion examination to the post of director (Administration) with salary grade level 17. By that reinstatement, Maina’s dismissal was totally obliterated from his employment record, and he was thus paid the backlog of his salaries and allowances, for the four years when he did not work for the Federal Government of Nigeria; salaries and allowances reportedly totaling over twenty million naira!

Having critically examined the trajectory and contents of the official communications and deliberations resulting in Maina’s purported reinstatement, it is our humble view that the Hon. AGF had no valid reason to have directed the FCSC, “to give a consequential effect to the said judgment which voided the warrant of arrest issued by the Police against Dr. Abdulrasheed A. Maina, which warrant of arrest formed the basis for the query referenced MI/30040/1/1 dated the 15th day of Febraury, 2013 and his eventual dismissal from the service of the Federal Government of Nigeria on the 5th day of March 2013.”

The interpretation given to the Judgment of Hon. Justice Adamu Bello was, to say the least, very wrong. Justice Adamu Bello’s judgment was in respect of the warrant that was issued by the Police to effect the arrest of Maina, for his failure to heed the Senate’s summons. If the Eighth Senate had resuscitated Maina’s probe and renewed the summons that was issued by the Committee of the Seventh Senate to Maina, and if the inspector-general of Police had revived the voided warrant of arrest with the intention to effect Maina’s arrest, the AGF could have issued an advice against such move, since there was no appeal against the Judgment of Adamu Bello, J. But that was not the case.

When he was dismissed from service, Maina did not challenge his dismissal by filing a court action in the Federal High Court or in the National Industrial Court, following the Third Alteration of the Constitution, which by Section 254C now vests exclusive jurisdiction in all labour and employment matters in the National Industrial Court. If there had been any such action leading to a judgment favourable to Maina, certainly that judgment nullifying the dismissal of Maina from the civil service would have been the fulcrum of the AGF’s recommendation of Maina for reinstatement. If such a judgment quashing Maina’s dismissal exists, let the AGF produce it to the Nigerian public.

By virtue of the provision of Section 2 of the Public Officer Protection Act, Cap P41, Laws of the Federation Nigeria 2004, if Maina had wanted to challenge his dismissal from the civil service, he should have done so within three months of the occurrence of his dismissal, or accrual of cause of action, that is three months from the date of his dismissal on March 5, 2013. Under the Section, the limitation of time for instituting an action against public officers (or offices) is three months. Any action commenced after the three month period is statute-barred and is liable to be dismissed. Therefore, having failed to file an action against his dismissal from the public service within the time allowed by law, Maina’s right of action against his dismissal is dead. Not today, but since 2013. It was, therefore, wrong for the Hon. AGF to seek to revive that right of action by disingenuously claiming that Maina’s query and dismissal was predicated on that warrant of arrest which was voided in Maina’s case for the enforcement of his fundamental rights.

Let us even assume, without conceding, that Maina’s dismissal from the civil service was predicated on the said warrant of arrest. The questions that will arise from such an assumption are many. Upon the voiding of that warrant of arrest by Hon. Justice Adamu Bello, in his judgment of March 27, 2013, why did Maina not thereafter challenge his dismissal in a court of law, since his dismissal from employment was a separate cause of action, distinct from the threat to arrest him and breach his right to liberty under the voided warrant? If Maina believed that the issue of the warrant for his arrest and dismissal from employment were one and the same cause of action, why did he not seek the enforcement of the judgment of Justice Adamu Bello against the FCSC (if indeed, the AGF was right in his position that the judgment had a bearing on Maina’s dismissal, to warrant his reinstatement being founded on the alleged consequential effect which should be given to the judgment)? Or why did Maina not petition Muhammed Adoke (SAN), the former AGF, who, incidentally is also now a “fugitive from justice”, to seek an administrative remedy of reinstatement? Why did Maina delay for four years “to reap the fruits of his judgment”, to which he was entitled under the Justice Adamu Bello judgment; “fruits” which the legal wizardry and interpretative ingenuity of the Hon. AGF have now pointed out to the FCSC and the Federal Government of Nigeria, who were not clear-eyed enough to have seen these “hanging fruits” all these years?

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Maina was issued a query on February 15, 2013 and was eventually dismissed on March 5, 2013. The judgment of Hon. Justice Adamu Bello vacating the warrant for his arrest was delivered on March 27, 2013. The Maina suit leading to that judgment was already pending in that Court, and was being litigated and adjudicated, when the disciplinary action of dismissal against Maina was taken by the FCSC. Thus, the issue of the disciplinary action that was taken against him by the FCSC, pursuant to Rule 04412 of the Public Service Rules, was not part of his claim in Court. Not being part of his claim, the Court could not have adjudicated on that issue. Since the Court did no determine the issue of his employment, there was no justification whatsoever for the Hon. AGF to have imported that into the judgment by relying on the voiding of the warrant of arrest therein to advise and direct that Maina be reinstated. Rule 04412 states clearly that, “any officer who absents himself from duty or from Nigeria without leave renders himself liable to be dismissed from the service and the onus shall rest on him, to show that the circumstances do no justify the imposition of the full penalty.”

In any case, it is settled law that an action seeking a declaration that an employee has been unlawfully dismissed or that an employment has been wrongfully terminated, and seeking orders of either reinstatement or damages, cannot be commenced by an originating motion or application for the enforcement of fundamental rights. Employment and the legal right thereto are not fundamental human rights which are enforceable in court vide the fundamental rights provisions or enforcement procedure rules. Obviously, therefore, the fundamental rights enforcement suit decided by Hon. Justice Adamu Belleo did not determine, and could not have determined the legal dispute of unlawful dismissal of Maina by the FCSC. The Court would have had no jurisdiction to entertain Maina’s action if the action, using the fundamental rights enforcement procedure mode of commencement of an action, had been filed in respect of his dismissal.

The judgment that the Hon. AGF relied upon to direct the reinstatement of Maina did not determine the issue of Maina’s employment. It was, therefore wrong for the Hon. AGF to twist the effect of that judgment to secure Maina’s reinstatement.

The Office of the Attorney General of any country under the rule of law is a very important office. In Nigeria, the office of the AGF, unlike the offices of the other ministers in the federal government, is specially created by Section 150 of the Constitution, and the AGF specifically is given powers by Section 174 of the Constitution, unlike the other ministers in the government of the federation, who are not specifically granted any powers by the Constitution. It is an office that demands that the occupant be learned in law, impeccable in character, high in morality and pure in professional ethics.

The honourable AGF knew when he was writing his letters and issuing his directives that Maina was a scofflaw and fugitive from justice. But he was not restrained by that knowledge. Abubakar Malami (SAN), by his action and conduct, has done incalculable harm to the integrity of the Buhari’s administration. He has done terrible damage to the anti-corruption fight, and has dishonoured the Office of the AGF.

He need not wait to be sacked. He should do the honourable thing. He should resign from office.

Jiti Ogunye, lawyer, public interest attorney, legal commentator, author, and essayist, is the legal adviser to PREMIUM TIMES.

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