An appraisal of the fundamental rights of shareholders in corporate governance under the Nigerian law

An appraisal of the fundamental rights of shareholders in corporate governance under the Nigerian law

 Introduction

When an individual or a group of persons purchase shares in a company, they become shareholders of that particular company. In Nigeria, there are over twenty million shareholders who own shares in public and private companies. A shareholder is a part owner of a company and is entitled to take part in making decisions for the running of the company. He is entitled to access information regarding the performance or otherwise of the company as contained in its annual report at the end of every year. He can vote on company issues at shareholders’ Annual General Meetings (AGMs) and other meetings. A shareholder benefits immensely whenever the company is doing well, then his shares would be worth more than when he bought them, and he may receive an income called dividend; as well as participate in the rights issued by the company.

Under the Companies and Allied Matters Act 1990, there are two principal organs of the company, to wit; the General Meeting and the Board of Directors. The General Meeting is the Shareholders acting in a properly convened meeting. The Board of Directors is given exclusive powers to manage the company. The powers of the shareholders under Companies and Allied Matters Act include default powers to act in any matter if the members of the board of directors are unable to act probably due to a deadlock, or are disqualified from acting in that respect; power to institute legal proceeding in the name of or on behalf of the company, where the board of directors refuse or neglect to do so; they also have power to ratify or confirm actions taken by directors, and to make recommendations to the board of directors regarding actions to be taken by the board of directors. Additionally the shareholders acting in the general meeting have power over the appointment and removal of directors and also to amend the articles of association to alter the powers of directors. Shareholders need to be protected against the increasing incidences of abuse of powers by Directors and holders of managerial posts. Recent advances in Nigeria have contributed to shareholder involvement in cooperate governance.

Nigeria has adequate laws intended to safeguard shareholders’ rights. There are numerous regulations and policies for ensuring that management of companies act in the shareholders’ interest.5 The early companies in Nigeria between 1876 and 1922 were virtue of colonization and British based. The applicable laws then were: common law, the doctrines of equity and the statute of general application in England as at January 1, 1900, subject to any relevant statute that had been enacted. This implied that doctrines such as that of separate legal personality of a company were received into Nigeria under the Companies Ordinance of 1912, which was the home enactment of the Companies (Consolidation) Act of England, 1908.

The Companies Ordinance of 1912 was in force only in the colony of Lagos, but by the amalgamation of Southern and Northern protectorates in 1914, the Ordinance was extended to the whole Country. The Companies Ordinance of 1912 was subsequently repealed by the Companies Decree 1922, which had it foundation from the United Kingdom Companies Act 1929. In 1968, a new Companies Decree was promulgated. This Decree replaced the 1922 Companies’ ordinance. The Company Act 1968 was mainly based on the United Kingdom Companies Act 1948 as part of the recommendations of the Jenkins Committee. Deficiencies in the 1968 Act gave birth to the Law Reform Commission in 1987 headed by his Lordship Hon Justice Dr Olakule Orojo (Rtd) whose Commission ushered in the current Companies and Allied Matters Act 1990.1 The Companies and Allied Matters Act 1990, Cap C 20 Laws of the Federation 2010 is currently the statute for regulating the registration and operation of all types of companies in Nigeria. Under the section 79 of Companies and Allied Matters Act, shareholders are recognized as members of the company and the directors owe duties to both the company and shareholders. The directors therefore do not have any legal liability or power to embark on any other duty apart from their duties to the Company. In Kotoye v. Saraki4 the Supreme Court of Nigeria conceded that shares are vested in the company directors but, the director hold such shares in trust for the shareholders. The Annual General Meeting is constituted by the Shareholders and is provided for under the law.5 Certain powers are conferred on shareholders by the law,6 which if exercised, are important in the administration of a company. These powers which are exercised at the General Meeting, including the power to appoint and remove directors, approve the remuneration of authors’ and even the power to institute legal proceedings to prevent the directors from entering into illegal or ultra vires actions, power to declare dividends, presentation of financial statements and the reports of Directors and Auditors and even the power to institute legal proceedings to prevent the directors from entering into illegal or ultra vires actions, power to declare dividends, presentation of financial statements and the reports of Director and Auditors, the election of directors in place of retiring ones, fixing remuneration and appointment of members of the audit committee.

The General Meeting thus, affords an opportunity for shareholders to supervise the management of the company. Since the Articles of Association regulates the management of the company, and the power to alter these articles lies in the shareholders, the shareholders can alter the Article for their own protection, and can also prevent the directors from perpetuating fraud. Every member is bound by the decisions of the Directors, who are the majority and this implies that while the majority shareholders will always have their say, the directors will always have their way.  It has been observed that most Annual General Meetings in Nigeria are fraught with dishonesty. These AGMs are prearranged in such a way that leaders of the shareholders association are induced by the majority shareholders, rather than look closely into the accounts presented by the Directors. Private enforcement of shareholders rights has provided means of regulating corporate conduct. Company law principles made recovery by shareholders very complex. At common law, shareholder actions were restricted in scope, fraught by procedural rules of complicated intricacy, and prohibitively costly.By Section 299 of CAMA, where irregularity has occurred in the course of a company’s affaires or any wrong has been done to the company, only the company can bring a legal action to remedy that wrong and only the company can ratify that irregular conduct. This is a statutory codification of the Rule in Foss v. Harbottle.  The legal derivative action was therefore enacted as legislative response to the apparent failure of the common law to effectively protect the interests of shareholders and the public from inequitable and dishonest company administration, and is contained in Section 310 – 312 CAMA, 1990. These Sections allow a shareholder to bring a derivative action for illegal or unfairly prejudicial and operative conduct, but in spite of these legal provisions, many impediments have discouraged a harmonized shareholder democracy in Nigeria such as “inadequacy of notices of statutory meetings”, “lack of information, apathy on the path of shareholders and a weak judicial system” as such impediments. Therefore, the legislative derivative action did not just inherit much of the intricacy of the common law, but also acquired additional obstacles of its own.

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Mar 14

COLONIAL BOUNDARIES AND ECONOMIC INTEGRATION IN AFRICA WITH PARTICULAR REFERENCE TO THE AEC AND ECOWAS TREATIES

COLONIAL BOUNDARIES AND ECONOMIC INTEGRATION IN AFRICA WITH PARTICULAR REFERENCE TO THE AEC AND ECOWAS TREATIES

Abstract:

Africa’s existing international boundaries are a product of the colonial partition in the 19th Century. Following independence, the colonial territories became sovereign nation states divided by the lines of colonial demarcation along with a series of commercial, linguistic, political and legal barriers. These barriers, imposed and reinforced by the international law regime relating to state boundaries, and sovereignty constitute impediments to inter-state or intra-regional intercourse and overall economic development on the continent. One major obstacle has been the narrow territorial frameworks or limited internal markets of individual countries which hamper economies of scale, higher productivity and international competitiveness. Several regional economic co-operation projects have been tried within the context of existing international law and inter-state diplomacy with little or no success. This work is an effort to assess current efforts at regional economic integration at the continental and sub-regional levels against the background of the rules governing international boundaries and their impact on inter-state or intraregional economic relations. Particular alien!ion is focused on the Treaties establishing the African Economic Community (1991) and the Economic Community of West African States (1975 as revised in 1993). Chapter one is the general introduction. It sets out the conceptual framework and objectives of the the work; the research problem and scope of the work. It also highlights the significance of the study, and its methodology. Chapter Two deals with the history of border and economic relations in Africa. It attempts to provide historical glimpses into the state of pre-colonial political economy and trade on the continent before the contact with Europe from about the 14th century. It also examines the notion of boundaries in Africa’s precolonial political formations. Lastly it looks at the European penetration and subsequent colonisation of Africa and their impact on indigenous commercial intercourse and state organisation. Chapter Three looks at the legal implications of independence for colonial territories in Africa and the associated problems of legal title to territory arising from the principles of classical international law. The chapter also examines the problems of stale boundaries in African economic relations especially in connection with informal transborder trade. Chapter Four considers the historical background to the idea of continental economic integration in Africa. It discusses existing integration projects on the continent. It also attempts to outline the legal framework, structure, status and scope of the African Economic Community as reflected in the Abuja Treaty of Chapter five examines the provisions of the Abuja Treaty which seek to address the constraints to inter-state or intra-regional trade, namely the rules stipulating for freedom of movement, residence and establishment for citizens of member states in each other’s territory. These are compared to free movement regimes in other regions and the legal harmonisation framework that supports those regimes. Chapter Six addresses the problems of integration in Africa with particular reference to the experiences of ECOWAS. Strict border maintenance policies and undue attachment to notions of sovereignty are identified as the major obstacles to integration against the socioeconomic realities in the sub-region. Chapter seven then identifies the major responses to the prevalence of strict border regimes in the Nigerian and African contexts and evaluates these against the wider imperatives of continental economic integration. It recommends an enabling framework for transborder co-operation that may be adopted from the European model. Chapter Eight summarises the major recommendations of the thesis. It concludes by reiterating the desirability of economic integration in Africa and the necessity for instituting more liberal border management policies that would reduce the negative, exclusionary functions of international boundaries on the continent while promoting free movement and intra-regional intercourse across the continent.

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Oct 08

AN ANALYSIS OF LEGAL FRAMEWORK ON COMBATING CYBER CRIME IN NIGERIA

ABSTRACT

 

This research provides a conceptual discourse into the challenges of cybercrimes and the modes of curbing it. The modern society today faces with the greatest achievements of technical and technological development, associated by rapid expansion of information technology and automation of work activities in all social life spheres. Such development in modern society has brought a large number of facilities on one side while, on the other side the presence of deliberate misuse of this technological achievement has also created a number of problems and risks towards individuals and groups in the society in general and national safety in particular, the approach how criminals (offenders) commit crimes has changed. Digital general approach has opened new opportunities for unscrupulous behavior. Millions of Nairas/Euros have been lost by businesses and customers from the use of computers as part of the commission of the crime. In absence of technology and trained personnel to deal with this new threat known as cybercrime, the security agencies are challenged by specialized cyber offenders which are known as hackers because apart from managing to break into state institution websites they are able to have unauthorized access to information classified as state secret and top-secret. The research will be focusing majorly on the Nigeria perspective, the research will also focus on the variety of approaches from other jurisdictions, as well as the related problem of cybercrime from the perspective of governments, the private sector, academia and international organizations and how to combat cyber related crimes. Due to the global nature of computer crime, the general action in preventing and combating this type of crime, consists on building bridges of cooperation and coordinated action of all countries, and in this case of Nigeria in order to set international standards in the field of defense and security of information systems which standard would guarantee the success of a sustainable national perspective in combating threats from cybercrimes. In this thesis, among others we will present the global aspect of cybercrime, the legal infrastructure defining cybercrimes and their forms, in, the role of security institutions in combating crime in general with particular focus on tackling cyber challenges, current threats and future threats related to cybercrimes, the legal research methodology adopted in the collection of information is the doctrinal method. The findings of the research reveal essentially, that cybercrime legal responses are inadequate to fight cybercrime; those available could address cybercrime menace. It is therefore recommended that legislation needs to keep pace with e-crime, while some need reform to meet prevalent and sophisticated cyber challenges. Apart from awareness and culture, security measures (technical and non technical) will need to be put in place and enforced, as part of the solutions. This might involve raising penalties and increasing the seriousness of e-offences. The right culture should create a high level of awareness amongst stakeholders.

CHAPTER ONE

GENERAL INTRODUCTION

 

1.1         Background to the Study

 

With the advent of the computer age, legislatures have been struggling to redefine the law to fit crimes perpetuated by computer criminals.1 The crime is amongst the newest and most constantly evolving areas of the law in many jurisdictions. The rise of technology and online communication has not only produced a dramatic increase in the nature of criminal activities. Criminals are using cyberspace to commit numerous cyber crimes. Growing trends of complex distributed and Internet computing raise important questions about information security and privacy.2The Information Communication Technology (ICT) revolution has had impacts in almost every area of human endeavour, from business, industry, government to not-for-profit organization; ICT has simplified business process such as sorting, summarizing, coding, editing customized and generic report generation in a real-time proceeding mode. However, ICT has also brought unintended consequences such as criminal activities, spamming, credit card frauds, ATM frauds, phishing, identify theft and other related cyber crimes. Technology has integrated nations and the world has become a global village. The economy of most nations in the world is accessible through the aid of electronic via the internet. Since the electronic market is opened to everybody (which also includes eavesdroppers and criminals) the internet is a borderless regime3. The internet is one of the fastest-growing areas of technical infrastructure development.Download Full Material-N5000

May 02

The concept and procedures of impeachment. A comparison between Nigeria and the United States of America

The concept and procedures of impeachment. A comparison between Nigeria and the United States of America

CHAPTER ONE

GENERAL INTRODUCTION

1.1 BACKGROUND OF THE STUDY

The presidential system of government is simply a democratic (government of the people, for the people and by the people) and republican (a state where supreme power is held by the people through their elected representatives which has an elected or nominated president rather than a monarch) system of government where a head of government leads an executive branch that is separate from the legislative branch and the judicial branch. The presidential system is deeply rooted in the foundations of the doctrine of separation of power propounded by French philosopher Baron de Montesquieu1, which posits that to ensure that each arm of government – executive, legislature and judiciary; performs a distinctive function in order to avoid consolidation of the powers of governance into one hand which is capable of promoting tyranny and accentuate human rights violations. Fundamentally, Montesquieu advocated that the legislature must make the law, the executive to execute the law made by legislature and the judiciary to interpret the laws in the case of ambiguity or where the law is sought to be interpreted. This will in a great way reduce the abuse of power.

However, due to the interdependent nature of the three arms of government, it became important for any government to align itself with the doctrine of checks and balances as formulated by A.V. Dicey. The only remedy to abuse of power is the effective employment of the principle of checks and balances within the three arms of government. As it is found in the presidential system of government, when officials of government are elected or appointed into their respective offices and they serve the will of the electorates for the term they have been elected or for the term allowed by the law in place. Through the doctrine of checks and balances, officials of government are held accountable for their actions and inactions while they serve the public and when they fail or come up short in the discharge of this responsibility, the doctrine posits impeachment for the executive, recall for the legislature and dismissal for the judiciary.

A reflection into the governance structure of Nigeria exposes that the doctrines of separation of power and that of checks and balances are underlying laces that the fabrics of the foundation of the Nigerian government. This work focuses on the procedure set in place by the law for the legislative arm to remove from office the executive officers at both the state and the federal level and the role the judiciary plays to affect the entire process. The Constitution of Nigeria like other democratic constitutions; creates the offices of the President,2 the Vice President,3 the Governor4 and the Deputy Governor5, it also proscribes how they leave office6 and the powers of the legislature to that effect7. A cursory look at the history of Nigeria will show that the power of impeachment has over the years been abused but for the timely intervention of the judiciary in some cases.

Impeachment is both constitutional and political arrangements to remove erring public officers from office for gross misconduct or grave violations of the constitution. The impeachment clause was enshrined in the 1999 Constitution as a result of the immunity that public officers enjoy8.

The abuse of office or power by the executive can only be reduce to the barest minimum through the proper use of the instrumentality of impeachment in the hands of the legislature. The power to impeach must effectively and efficiently be used by the legislature to remove from office any executive officer who goes contrary to his constitutional powers or conducts himself in a way or ways not fit and proper for such office he is holding.

In the exercise of this power however, the legislature must ensure that the proper procedure is followed to the core in order to avoid such impeachment procedure being declared null and void by the judiciary.

This work does not only examine the concept of impeachment of the executive in Nigeria under the 1999 Constitution but also compares the Nigerian procedure with that of the United States of America as regulated under the United States Constitution.

The United States of America as a federal democratic republic state like Nigeria also has in its own constitution the procedure for impeachment. The United States of America Constitution of 1776 provides for the procedure for impeachment. Article II Section 4 gives the Senate the sole power to try all impeachments. The Constitution also provides that “the President, Vice President and all civil officers of the United States shall be removed from office upon impeachment for and conviction of treason, bribery, or other high crimes and misdemeanours”9.

This long essay will examine primarily the procedures for impeachment in Nigeria and the United States of America and the reaction of the Courts both in Nigeria and the United States of America towards impeachments. It shall also examine the role of the legislature in impeachments and uncover the lapses in the impeachment procedure and proffer solution to such lapses.

1.2 STATEMENT OF THE PROBLEM

An executive officer leaves office not only at the expiration of his tenure, or his death, or incapacitation as it is the ideal, but also upon impeachment.

Impeachment is another potent and unusual way of removing an Executive Officer. However, impeachment which is supposed to be an instrument to check the excesses of executive officers in the hands of the legislature has become a tool in the hands of political parties and politicians to remove from office an executive officer who is from another political party or who is not a ‘loyalist’. This practice is more peculiar to Nigeria where impeachment has become a tool for settling political scores.

This therefore amounts to an abuse of the power of impeachment conferred on the legislature. This underscores the essence of this research because a comparative analysis of the procedure for impeachment in Nigeria and the United States of America will expose the lapses in both legal systems and proffer solution to such lapses. These lapses are the problem this research work intends to resolve. This research work intends to answer the following questions: what does impeachment entail in Nigeria and the United States of America? Who can be impeached in Nigeria and the United States of America? What is the procedure for impeachment in Nigeria and the United States of America? What are the differences in the procedure for impeachment in Nigeria and the United States of America? How can this procedure be breached? Should there be differences, will that amount to a gap? And which is the standard for impeachment to establish the basis for amending the other?

The researcher has no doubt that this work will be of tremendous help to researchers, legislators, politicians and the public at large due to its constitutional jurisprudential value. The gap between the two legal systems is the major problem this work seeks to breach.

1.3 AIM AND OBJECTIVES OF THE STUDY

The ultimate aim of this long essay is to critically analyse comparatively the concept of impeachment and its procedures in Nigeria and the United States of America.

The essence of this work can only be achieved through a comparative approach. The aim of the comparison is fully encapsulated in the opinion of some writers thus:

Comparison is fundamental to human thought … it is the only way we can understand our nation and comparing our experience with that of other nations deepens our understanding of our own institutions. Examining politics in other societies permit us to see a wider range of political alternatives and illuminates the virtues and shortcomings of our own political life. By taking us beyond our familiar arrangements and assumptions, comparative analysis helps expand our awareness of the possibilities of politics.10

The writers further stated that “comparison is the methodological core of the scientific study of politics. Comparative analysis helps us develop explanations and test theories of the ways in which political processes work and in which political change occurs.”11 The above clearly shows the place of comparison in this research. The objectives of this long essay on the other hand are:

1. To understand the procedure of impeachment and the attitude of the judiciary towards impeachment in Nigeria.
2. To understand the procedure of impeachment and the attitude of the judiciary towards impeachment in the United States of America.
3. To bring to bear the inadequacies in the procedure of impeachment in both Nigeria and the United States of America.
4. To compare both countries with the aim of improving their individual procedure of impeachment.
5. Proffer solutions to the problems discovered in the course of the research.

1.4 SCOPE AND LIMITATION OF THE STUDY

The legislature has a lot of powers in both Nigeria12 and the United States of America13. The scope of this research is limited to the examination of the non-legislative power to impeach a substantive public officer.

This research is also limited to only two democratic countries of the world which are Nigeria and the United States of America. However, reference may be made to other nations where it becomes absolutely necessary in aiding the proper understanding of the subject matter.

This long essay is limited to the examination of the impeachment procedures in Nigeria and United States of America.

This work is limited to the examination of the impeachment procedure of the President and the Vice President14, the Governor and the Deputy Governor15 and does not extend to other public officers generally. However, reference to such other public officers may be made where it is necessary for better understanding of the subject matter.

1.5 SIGNIFICANCE OF THE STUDY

The significance of this study is to give a general understanding of the concept of impeachment and buttress the necessity of the concept.

This work will aid the legislature in following due process in engaging in impeachment proceedings and also educate the general public on the procedures of impeachment and the attitude of the court towards matters of impeachment.

This work is of enormous importance because it will compare Nigeria and the United States of America and recommend ways to improve the observed weaknesses in both climes.

Finally, this research is of great importance as it will add to the current literature on impeachment and also open avenues for further research in the area.

1.6 RESEARCH METHODOLOGY

The method of legal research adopted by this researcher is the doctrinal method of research. The source materials employed by the researcher includes both primary sources and secondary sources, the primary sources include the 1999 Constitution of the Federal Republic of Nigeria as Amended 2018, the 1979 Constitution of the Federal Republic of Nigeria, the American Constitution of 1776 and case laws while the secondary sources include books, journals and online materials.

The method employed in the citation of consulted materials is the Nigerian Association of Law Teachers citation guidelines (NALT).

1.7 LITERATURE REVIEW

Impeachment over the years has attracted the attention and interest of many jurists, lawyers, political scientists and analysts, Judges, scholars and many other persons. Consequently, these set of persons have at one time or the other written on this subject matter.

Plethora of materials has been consulted by the researcher in the course of this research. Some of these materials are books, journals, newspapers, online materials, case law, etc. First among these materials is “Impeachment and Presidential Immunity from Judicial Process” by Joseph Isenbergh16. In this article, the author extensively elaborated on the concept of impeachment, the grounds of impeachment and the aftermath of impeachment in the United States of America drawing mostly from the impeachment of President Clinton. This article failed to identify the challenges faced by impeachment in the United States of America and since it did not identify the challenges to impeachment in the United States of America, it definitely did not provide for ways to improve the impeachment machinery also.

Another work reviewed is “Law and the Politics of Impeachment in Nigeria: Interrogating the Basis of Judicial Control of a Political Process” by Mojeed Olujinmi Alabi of the Department of Political Science, and Ibrahim Imam of the Department of Public Law, University of Illorin, Illorin, Nigeria. In that work17, they took out time to expound with decided cases the application of the concept of impeachment in Nigeria and the attitude of the judiciary towards such impeachments. This work looked indepth at the decisions of Nigerian Courts in relation to impeachment from the Second Republic down to the present Fourth Republic. The wrticle though failed to underline the reason why the courts have interfered even in the gale of outright removal and sincere respect for the ouster clause as contained in the Consititution.

Also, an article written by Michael Abiodun Oni of the Department of Political Science and Public Administration, Babcock University, Ilisa Remo, Ogun state on the topic “Judicial Review of Governors’ Ladoja and Obi Impeachment in Nigeria’s Fourth Republic”. In this work18, he critically examined the removal from office of Governor Ladoja of Oyo State and Obi of Anambra State. And describe such removal as an abuse of impeachment powers given to the legislature. He successfully pointed out the errors in the approach carried out by the legislature in both circumstances and how the judiciary intervened. The work though fails to provide much more proactive solutions to the challenge faced by impeachment in Nigeria but then advocated from the Realist Jurisprudence for more judicial activism on the part of the Nigerian Judiciary. This present work would proffer more proactive solutions to the challenge of impeachment in Nigeria.

Also, an article written by Dr. Imo Udofa, on “The Impeachment Power of the Legislature under the Nigerian and American Constitutions Compared”19 where he critically examined the nature, procedure and offences for impeachment under the Nigerian and the American Constitution. He though fails to elaborately discuss the points of comparison from the place of convergence to the place of divergence between both statutes and practice. This present work will elaborately point out points or places where the two systems come together (convergence) and where they do not agree (divergence).

Also, an article written by Offor Maculay Arinze, Eze Christopher and Nwaeze Oliver, on the topic ‘‘Politics of Impeachment in Nigeria; A Discourse on Causes and Implications for Democratic Consolidation”,20 where they narrated in detail the history of impeachment in Nigeria and the political causes of impeachment in Nigeria and the need for reforms of the laws governing impeachment in Nigeria; the work failed to look at impeachment from the legal standpoint but almost solely from the point of politics and to the extra emotional attachments towards impeachment within the political landscape. This present work would not only address impeachment from the light of politics but would also consider in-depth impeachment from the point of law in its siamesed form with politics.

Lastly, an article written by Oche, Patrick Ndubisi, on the topic “The President and Vice President: Loss of Office By Reason of Removal: Analytical Discourse of Procedure”21, where he analytically examined the concept of impeachment, the procedure and the implication of any breach in the procedure of impeachment. His article though is restricted to the impeachment of the President and the Vice President of Nigeria alone; it did not cover the impeachment of State Governors and Deputy Governors which this work will analyse critically.

A careful study of the works above show clearly the procedure for the impeachment of public officials and also show the attitude of the court once the procedure as laid down in the Constitution is not followed.

Gasioku22 opined in his book that “Research is a continuum”. It is on this premise that the researcher believes that though these various erudite scholars have written on this subject matter, there is still need to elaborate on the concept and procedures of impeachment in Nigeria in order to continue from whence these erudite hands have dropped the pen. In doing this, the researcher has adopted one of the most efficient approaches to research namely comparative approach, by comparing the concept and procedures of impeachment in Nigeria and United States of America.

This he believes will give a more comprehensive view on the subject matter of impeachment. The lapses in the procedure of impeachment in both countries and also proffer practicable result oriented recommendations that will help advance our political system.

1.8 SYNOPSIS OF CHAPTERS

Chapter one examined the background to the study, method of research employed in the course of the research, reviewed a plethora of materials which were relied upon in the course of the work. The chapter also limited the scope of the study to the impeachment of just executive officers at State and Federal levels and only to that of Nigeria and the United States of America. The chapter also stated the research problem, aim and the objectives of the study and the significance of the study.

Chapter two examined the history of impeachment in Nigeria and the United States of America. It also examined the various definitions of impeachment and distinguished Impeachment from the concept of removal from office under Section 143 and 188 of the 1999 Constitution.

Chapter three examined the legal framework for impeachment in Nigeria and the United States of America wherein an exposition is made about impeachment in Nigeria and the United States of America at State and Federal levels. It also examines the grounds and procedure for impeachment in Nigeria and the United States of America.

Chapter four carries out the comparative analysis of impeachment in Nigeria and the United States of America; it compares the attitude of courts in Nigeria and the United States of America towards impeachment. This chapter also examines comparatively the procedure for impeachment in both jurisdictions wherein the points of convergence (similarities) and points of divergence (differences) were analysed.

Chapter five gave a summary of the findings and observations made in the course of this research. This chapter also made some salient suggestions and recommendations towards the enhancement of the overall architecture of impeachment in Nigeria and the United States of America. This chapter also shows the contribution the present researcher has made to knowledge and the conclusion of the entire work.

CHAPTER TWO

CONCEPTUAL FOUNDATION/HISTORICAL DEVELOPMENT

2.1 HISTORY OF IMPEACHMENT

Over the course of man’s history, there were rulers of mankind from the ages of the strongest becoming kings to the ages were kings became born and had access to power as a birth right; and through these ages, these kings did as they deemed pleased in their eyes and willed as their might allowed them not having any or little regard for how they governed affected the populace that were governed. With the growth and advancement of man came the need to depose these authorities of their untouchable hold on power and this necessitated the devolution of power from the monarchs to the people. People needed to also check the powers given to those they had put in positions of authority and thus concept of checks and balances came about wherein different arms of government were employed to check the others misuse of governmental powers. From thence public officers were not to perform their duties according to their whim and caprices but according to the tenets of their laid down responsibility. But due to man’s unrivalled stubbornness, there needed a weapon to check the ultimate decision maker whenever he begins to err and thus impeachment has since developed in many democratic societies of the world due to the desire to abolish absolute power and arbitrariness.

According to Professor Ben Nwabueze, ‘concentration of government powers in the hands of one individual is the very definition of dictatorship and absolute power is by its very nature capricious and despotic.’23 The concept of impeachment evolved as man got wiser and the need to preclude the exercise of arbitrary power became necessary. Impeachment has now become the most potent tool that is being used to keep public officers actions within the boundaries of the law; it has long reaffirmed the principles of the rule of law and constitutionalism in the Nation. The origin of impeachment process dates back to British parliamentary practice in the 14th century24, when in 1376 Lord Latimer was impeached by the British Parliament – the ‘Good Parliament’25. Impeachment developed because certain officers of government were, for various reasons, placed beyond the reach of ordinary courts. High judicial and executive officers were not subject to complaints of private individuals in the ordinary courts. Private persons aggrieved by the actions of such officers, turned to parliament for redress. The House of Commons became the accuser and the House of Lords the body that tried cases of impeachment.26

Impeachment is not such to punish as to secure the state against its official`s misdemeanour. From the first case of impeachment in England in 1376, the practice developed and it was from the British example that the Americans learned the concept of impeachment. The history of impeachment is a continuum as each country improves on the procedure as their democracy advances.

2.1.1 HISTORY OF IMPEACHMENT IN NIGERIA

The History of impeachment is as old as mankind itself. All ancient communities had their own traditional ways of removing their erring officers from office. Nigeria is not an exception. In Nigeria, even before the advent of the British Colonial masters, our traditional communities had a way of removing from office any erring officer. For instance, in the old Yoruba kingdom, the Oyomesi could “impeach” an erring king by simply asking him to open or drink from a sacred calabash. This act signifies the withdrawal of the initial support given to him as a king.

The first formal impeachment case recorded in Nigeria was in the Second Republic. On the 8th of May, 1981, Governor Balarebe Musa of Kaduna State was impeached. The Governor was impeached under section 170 (3) of the Constitution of the Federal Republic of Nigeria 1979. It is noteworthy to state that the procedure for impeachment was not complied with stricto senso. Subsequently, the Deputy Governor of the Kano State was removed for refusal to perform duties assigned to him by the Governor. This was followed by threat of impeachment to Governors of Bendel, Cross River and Ondo States by the respective Houses of Assembly of the states27.

However, there was no impeachment recorded in the first four years tenure of President Olusegun Obansanjo.28 But unfortunately, his second tenure29 witnessed the highest rate of impeachment in the history of Nigeria as a nation. It was characterised with the impeachment of many Governors and Deputy Governors30.

Procedurally, the concept of removal from office was first introduced in Nigeria under the provisions of the Constitution of the Federal Republic of Nigeria 1963; in operation at that time was the parliamentary system of government with the President as the Head of State and the Prime Minister as the Head of Government. The Constitution of 1963 required that before a President is removed from office, a motion for his removal must have been passed in accordance with the provisions of Section 38 of the Constitution of 1963. This to hold that the procedure for the removal of the President from office under the Constitution of 1963 if a notice in writing is given to the President of the Senate a motion stating that the President of the Republic is guilty of misconduct in the performance of the functions of his office or he is unable to perform such functions31 and such notice must be signed by not less than one quarter of all the Senate or one quarter of all the members of the House of Representatives32 the President of the Senate shall then convene a joint meeting of both Houses of Parliament not earlier than seven days after the publication of the said notice and not later than fourteen days33 ; at this convened meeting, the President of the Senate shall cause for a vote without debate on the motion that the President be removed from office, if two-thirds or more of the votes cast on the motion is in favour of the motion, the motion is deemed as passed but anything less, the motion is deemed defeated34. Where the motion is passed, a committee would be set up to investigate the conduct of the President and the President may wish to appear himself before the committee or through a representative and no decision of the committee shall be contested before any court35 ; the committee in its report shall state conclusively and expressly if it finds the President guilty or not guilty and where the committee returns a declaration of guilty on the President, the President shall convene a meeting of both houses of Parliament to consider a motion for the removal of the President from office36. At this convened meeting, the sitting shall be allowed to debate on the motion and the person chairing the meeting if he thinks fit shall direct a vote be taken and if the votes cast in favour of the motion is not less than two-thirds of the number of all the members of the Parliament then the motion is deemed as passed and the President of the Republic from that moment is deemed as removed from office but if the votes casted on the motion is less than two-thirds of the members of the Parliament, the motion is deemed defeated.37

From the provisions of the Constitution of 1963, it does not make specific provisions for the removal of Regional Governors, rather it empowers Regional Assemblies to make constitutions for each of the then four regions and those constitutions shall carry in them the clause for the removal of Regional Governors. There were no provisions in the constitution of 1963 for the removal of the Prime Minister from office except when the House of Representatives is dissolved or the Prime Minister ceases to be a member of the House of Representatives38. It is very important to note that the word ‘impeachment’ was never mentioned in the Constitution of 1963, the first time the word ‘impeachment’ came in Nigerian statutes was with the coming of the Constitution of 1979.

Under the Constitution of the Federal Republic of Nigeria 1979, Section 132 made express provision as to the procedure of the removal for public officers and the circumstances which will permit such removal; and under the Constitution of the Federal Republic of Nigeria 1989, section 140 made provisions for the impeachment of the President and Vice President. This provision is almost identical with the provisions of section 132 of the constitution of 1979. The only difference is that under the constitution of 1979, the President of the Senate shall cause the allegation to be investigated by a committee of seven persons39 while under the Constitution of 1989,40 it is the Chief Justice who shall set up a panel to investigate, provided it is upon a request by the Senate President. This position was maintained under the constitution of 1999.41

2.1.2 HISTORY OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

Impeachment originated from England in the 14th century. However, the impeachment machinery as it is known today was developed upon following the American declaration of independence in 1776, where a number of measures were taken by the constitutional framers.42 This, the constitution of the United States America has done by proper employment of the principles of separation of powers in its constitution. It separated the Legislative43 from the Executive44 and the Judiciary.45

The American colonial government and early state constitutions followed the British pattern of trial before the upper legislative body on charges brought by the lower house.46

President Andrew Johnson became the President of the United States of America in 1865. The Tenure of Office Act, the violation of which was the legal basis for impeachment, was passed by Congress over Johnson’s veto on March 2, 1867. The Act forbade the president from removing any civil officers appointed with the consent of the Senate without the approval of the Senate. Despite the certain consequences, President Johnson decided to remove Secretary of War Edwin Stanton, an ally of the Radical Republicans. This act enraged Johnson’s political enemies and set in motion the first presidential impeachment, he was impeached successfully by congress but was then acquitted at the Senate trials47.

On two other American Presidents was the mechanism of impeachment in the United States of America initiated against, President Richard Nixon in 1974 and President Williams J. Clinton, in 1998. However, the former resigned office before his impeachment inquiry was completed in 1974, the later was fully impeached by congress but was also acquitted at the senate trials48. Since the founding of the Republic, only 65 persons have ever been considered for impeachment by the House of Representative. Of these, 12 have been impeached and charges dropped, and four have been convicted. From this statistics, it would seem that the impeachment process is little used and insignificant.49

2.2 CONCEPT OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

According to Thomas Jefferson,50 impeachment is “the scarecrow of the constitution.”

The concept of impeachment in the United States of America can best be explained by the quotation below:

The congress’s ultimate weapon against the president is known as impeachment. Most people think this means removal from office, but impeachment is only the first step in the process by which congress can remove a president from office. Impeachment means the formal bringing of charges against the President. It is the rough equivalent of an indictment in an ordinary criminal case. The constitution gives the sole power of impeachment to the House of Representatives. If the house decides there is sufficient evidence against a president, it impeaches- that is, it brings charges against-him. The president must then stand trial, with the senate acting as judge. If two third of the senate finds the president guilty, he is convicted and removed from office.51

The foregoing gives us a clear view on the concept of impeachment in the United States of American. The concept of impeachment is not the removal of an erring public officer from office but is only the first step in the process by which the congress removes a president from office; a part of the process of removing from office.

In the United States of America, before a person is properly removed from office, two processes must be complied with, which are the impeachment by the House of Representatives and the trial by the Senate which will be presided over by the Chief Justice of the United States of America.

2.3 CONCEPT OF REMOVAL FROM OFFICE IN NIGERIA

The word ‘impeachment’ though mostly used interchangeable with the word’ removal from office’, it is not the same. Impeachment is simply the preferring of charges against a person but does not mean that person would leave office.

In Nigeria, under the 1999 Constitution, what we practice is the concept of ‘removal from office’ and not ‘impeachment’. Although the word impeachment appeared in section 146, and 191, the main sections which provide for the removal of the President52 and Governor53 did not in any way mention the word impeachment.

The concept of removal from offices in Nigeria was distinguished from impeachment by the Supreme Court in case of Inakoju and ors v Adeleke and ors 54,where the Apex Court held thus:

“It is the use of the word “impeachment”. The word is used freely and indiscriminately by the parties. The two courts below also used the expression freely, though not indiscriminately. Where do they get the word in section 183 of the Constitution, I ask? it is clear from the section I have stated above that there is no such word in the section. And so ask once again, where do all counsel and the courts get the word? … Section 188 is not so worded. The section covers both civil and criminal conduct. Therefore, the word should not be used as a substitute for the removal provision of section 188 and section 188 procedures should simply be referred to as one for removal of Governor, not impeachment.”

From the decision of the Supreme Court, it is clear that the word impeachment is not to be used interchangeably with removal from office as they mean different things. This interpretation given to section 188 of the Constitution by the Apex Court, which provides for the removal of the Governor or Deputy Governor, will also apply to section 143 of the Constitution which provides for the removal of the President or Vice President. In other words, the word impeachment should not be confused with removal from office under the Nigerian Constitution, since they are not one and the same thing.

According to Jide Ogunsakin55 ‘while they are frequently used interchangeably in academic commentaries and legal publications, “impeachment” and “Removal” are(sic) not exactly same’ He went further to quote the dictum of Niki Tobi (as he then was) in Inakoju v Adeleke56, thus:

The word (“impeachment”) should not be used as a substitute for the removal provision of section 188. We call a spade its correct name spade and not machete because it is not one. The analogy here is that we should call section 188 procedure one of the removal of the Governor, not impeachment.

Accordingly, impeachment should not be seen as synonymous with removal from office. Impeachment is only a process by which a public officer is removal from office.

Hence in this work, the term removal from office will be used in the Nigerian context while impeachment will be used in the context of the United States of America.

2.4 DEFINITION OF IMPEACHMENT

Impeachment just like many other legal concepts cannot be defined with precision. Hence the word impeachment has defied a universal definition. However, an attempt will be made in this work to describe the concept as clear and unequivocal as possible.

Impeachment is the process by which charges are brought against a government official, which can result in his removal from office.57 It is the equivalent of “indictment” in the criminal law. It does not mean that the person impeached is guilty, only that a trial must be held to determine his innocence or guilt.58

The word “impeach” is derived from the Middle English “empechen” meaning to impede or accuse, and the Latin “impedicare” which means to entangle or put in fetters.59 The word impeachment therefore means the act by which a public official who is accused of any crime is ‘arraigned’ with the sole purpose of proving or disproving the alleged crime and subsequently ordering the removal of such official if the alleged crime is proved. Hence impeachment is not an end in itself but a means to an end. It is pertinent at this juncture to look at the definition of the term impeachment in Nigeria and in the United States of America since the term has no universal definition despite its ubiquitous status.

2.4.1 DEFINITION OF IMPEACHMENT IN NIGERIA

The 1999 Constitution of the Federal Republic of Nigeria did not in any way define the word impeachment. Likewise, Nigerian authors, jurists and writer have not been able to reach a consensus on what the word entail. An overview of some definitions at this juncture is pertinent.

Oyinloye60 quoted with approval the definition of impeachment by Chief Mike Ozekhome SAN thus:

The word impeachment connotes the practice and procedure by which political elected person are (sic) constitutionally removed from office by the legislature before the expiration of the tenure of office of such person. It is the modality adopted by the legislative arm of government to bring to an end or prematurely determine the tenure of a person’s term of office before its due expiration. It is the most powerful weapon in the hands of the legislature, which stands as a sword of Democles over other members of the legislature and executive.

Ogunsakin61 quoting the Oxford Advanced Learners Dictionary 6th edition stated, that to impeachment in the linguistic sense, means ‘to accuse a public officer or politician of committing a serious crime, especially against the against the state’.

The court of appeal in Jimoh v Olawoye 62 held impeachment to mean ‘… the act (by legislature) of calling for the removal from office of a public official accomplished by presenting written charge of the official alleged misconduct’. Although the 1999 Constitution failed to define the term impeachment, a careful perusal of the section shows what impeachment means in Nigeria. The section provides:63 The President or Vice President may be removed from office in accordance with the provisions of this section. The subsequent subsections only provided for the guidelines to be followed before removing such Public Officer from office. Similarly, section 188 (1) makes the same provision for the removal of the Governor or Deputy Governor.

From the above, it is clear that not even the constitution itself has clearly defined the term impeachment. However, our earlier concept of removal from office as is stated in the constitution is maintained and impeachment is only seen as means to remove a public official from office.

The word impeachment in Nigeria therefore represent the act by which a public official who is accused of any misconduct (the legislature sees as gross) is removed from office after a two-third majority votes of the Legislature has supported such removal from office.

2.4.2 DEFINITION OF IMPEACHMENT IN THE UNITED STATES OF AMERICA

The Constitution of the United States of America just like its Nigerian counterpart did not define what impeachment means. This work examines some meanings of the word impeachment. Impeachment can be seen as a formal accusation issued by a legislature against a public official charged with crime or other serious misconduct. This implies that the impeachment is a means of trying a public official suspected to have involved in any act of misconduct.

In the United States impeachment of public officials is provided for in the federal government and in most states. In the federal matters the U.S Constitution gives the House of Representatives the power to impeach civil officers of the United States, including the President and Vice President, but not including members of the congress.

[…]

1 B. Montesquieu, ‘(The Spirit of the Laws), Complete Works, Vol. 1’ < https://ia902701.us.archive.org/22/items/spiritoflaws01montuoft/spiritoflaws01montuoft.pdf> accessed 17th August, 2019

2 Section 130 CFRN 1999 (as amended)

3 Ibid Section 142

4 Ibid Section 176

5 Ibid Section 187

6 Ibid Sections 135, 143, 144, 180, 188 and 189

7 Ibid

8 Ibid Section 308

9 Article II Section 4, The Constitution of the United States of America

10 Gabriel A. Almond et al, Comparative Politics Today A World View (8th Edn, Pearson Education Pte. Ltd)P 31

11 Ibid

12 (n2) Section 4

13 (n9) Article I

14 (n2) Section 143(1)

15 Ibid section 188(1)

16 Joseph Isenbergh, ‘Impeachment and Presidential Immunity from Judicial Process’ Yale Law and Policy Review (1999) (18) 53-109.

17 Mojeed Olujinmi Alabi and Ibrahim Imam, ‘Law and the Politics of Impeachment in Nigeria: Interrogating the Basis of Judicial Control of a Political Process’, MOAA& II (17) (2) 17-30

18 Oni Michael Abiodun, ‘Judicial Review of Governors Ladoja and Obi Impeachment in Nigeria’s Fourth Republic’, Singaporean Journal of Business Economics and Management Studies [2013] (1) (6) 117-128

19 Imo Udofa, ‘The Impeachment Power of the Legislature under the Nigerian and American Constitutions Compared’, International Journal of Law and Legal Jurisprudence Studies [2015] (2) (4) 1-22

20 Offor Maculay Arinze, Eze Christopher and Nwaeze Oliver, ‘Politics of Impeachment in Nigeria; A Discourse on Causes and Implications for Democratic Consolidation’ Journal of Policy and Development Studies [2016] (10) (1) 48-56

21 Oche, Patrick Ndubisi, ‘The President and Vice President: Loss of Office By Reason of Removal: Analytical Discourse of Procedure’ JPL [2013] (1) (1) 1-19

22 Gasioku M.U, Legal Research Methodology (Jos University Press Ltd, 1993) P. 4

23 Ben Nwabueze, The Presidential Constitution of Nigeria. (Hurst and Co, 1982) P.32.

24 Peter Woll, America Government Readings and Cases (5th Edn, Little, Brown and Company Canada Ltd.) P.102-103.

25 Jack Simson Caird, ‘Impeachment: Briefing Paper’ <http://researchbriefings.files.parliament.uk/docume nts/CBP-7612/CBP-7612.pdf> accessed 12th October, 2019

26 Woll (n24) 103

27 Offor Maculay Arinze et al (n20) P. 56

28 Between the period of 1999-2003

29 Between the period of 2003-2007

30 Bernard Balogun, ‘History of impeachment in Nigeria’ <https://www.newsexpressngr.com/news/41971-History-of-impeachment-in-Nigeria-By-Bernard-Balogun/> accessed 10th October, 2019

31 Section 38(2)(a) CFRN 1963

32 Ibid Section 38(2)(b)

33 Ibid Section 38(3)

34 Ibid Section 38(4)

35 Ibid Section 38(5)

36 Ibid Section 38(6)

37 Ibid Section 38(7) and (8)

38 Ibid Section 87(8)

39 Section 140 (5) CFRN 1989

40 Section 143 (5) CFRN 1999 (as amended)

41 Aligba, A., ‘The Abuse and Misuse of the Impeachment Machinery under the 1999 Constitution of Nigeria’, BSUJPPL [2014] (1) (1) 61

42 ‘A Brief History of Presidential Impeachment’ <https://www.historyextra.com/period/modern/history-impeachment-president-trump-nixon-clinton-explained/ > accessed 12th October, 2019

43 Article I, The Constitution of the United States of America

44 Ibid Article II

45 Ibid Article III

46 ‘Impeachment’ <https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role .htm> accessed 13th October, 2019.

47 Ibid

48 Daniel H. Erskine, ‘The Trial of Queen Caroline and the Impeachment of President Clinton: Law As a Weapon for Political Reform’, 7 Wash. U. Global Stud. L. Rev. 1 (2008) <https://openscholarship.wustl.edu/law_globalstudies/vol7/iss1/2> accessed 12th October, 2019

49 Woll, (n24) 102

50 Jefferson T., Political and Government in the United States 2nd Edn. (Brace and World Inc., 1968) P. 36.

51 Krasner, M.A. Et al., American Government Structure and Process (Macmillan Publishing Co. Inc. New York 1977) P.57-58

52 (n2) Section 143

53 Ibid Section188

54 (2007) 4 NWLR (Pt. 1206) 427 at 668

55 Jide Ogunsakin, ‘Evaluation of Impeachment Proceedings under the Constitution of the Federal Republic of Nigeria 1999’ Journal of Law, Policy and Globalization [2015] (34) P.132

56 Inakoju v Adeleke (n54)

57 Alan Hirsch, ‘A Citizen`s Guide to Impeachment’ <http://essential-book.org/books/impeach/> accessed 13th October, 2019

58 Ibid.

59 Ibid.

60 “Ozekhome, The Impeachment Process in the Third Arm of Government” in Oyinloye, O. A. ‘Roles of Legislature in Impeachment Proceedings Under the 1999 Constitution.’ (Unpublished) P.12

61 Ogunsakin (n33) 131

62 (2001) 10 NWLR (Pt. 929) 307 at 336

63 (n2) Section 143 (1)

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