Appeal Court Orders Cross River Government To Set Up Privatization Panel

In Breaking News, National News, Reports

By CrossRiverWatch admin

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The Court of Appeal sitting in Calabar in a landmark judgment delivered on Friday, 1st July, 2016 has ordered the Government of Cross River State and the Attorney-General and Commissioner for Justice to without delay set up the Privatization Arbitration Panel as provided for under section 17(1) of the State Enterprises Privatization Law of Cross River State to hear all dispute emanating from the privatization exercise going on in the state since 2004.

The lead judgment, delivered by Hon. Justice J. O. K. Oyewole and unanimously concurred to by his two other fellow justices, Hon. Justice C. E. Nwosu-Iheme and Hon. Justice P. O. Elechi, who made up the three-man panel, was in Appeal No. CA/C/110/2013: George Ochui Ojei and 9 Others (suing on behalf of themselves and other 316 workers who constitute the ranks of the senior and junior staff of Oban (Nigeria) Rubber Estate Limited versus Government of Cross River State and Attorney-General and Commissioner for Justice, Cross River State.

CrossRiverWatch gathered that in 2004 the government of Mr. Donald Duke through the Cross River State Council on Privatization and the Bureau of State Enterprises privatized the rubber section of Oban (Nigeria) Rubber Estate Limited for fifty million naira to Kwale Rubber (Nigeria) Limited, a company owned by Chief Eric Opia from Delta State and was to pay the workers their terminal benefits and also settle outstanding claims owed trade creditors such as contractors, consultants and their likes.

Irked that some of them were either not paid at all or were underpaid, the workers through their appointed representatives, Mr. George Ochui Ojei and nine others as well as some of the trade creditors including Mrs. Violet Etuk of Gipatti Ventures, Jumal Rubber Processing Company Limited and M. N. I. Emori & Co. (a firm of legal practitioners) approached the High Court, Calabar with various suits in 2004, challenging the action of the Cross River State Council on Privatization and the Executive Secretary, Bureau of State Enterprises.

Defended by lawyers from the Chambers of the State Attorney-General and Commissioner for Justice, the Privatization Council and the Bureau launched preliminary objections to two of the suits, which were then pending before Hon. Justice Bassey Ikpeme, alleging that the suits ought to have been heard by the Privatization Arbitration Panel as established under section 17(1) of the State Enterprises (Privatization) Law of Cross River State. And that the High Court of Cross River State lacked the pre-requisite jurisdiction to entertain the suits.

Upholding the submissions of the state counsel, Barrister P. S. Bisong in that regards and coming to the conclusion that all cases relating to the privatization exercise ought to be heard by the ad hoc panel provided for under the said privatization law, the presiding Judge, Hon. Justice Bassey Ikpeme declined jurisdiction to hear the cases and so struck them out. That caused other litigants to immediately withdraw their suits from the other courts, expecting that the results might not be different.

However, on seeing that there was no such panel in existence, which of course was what initially informed the litigants’ decision to approach the High Court under its unlimited jurisdiction, counsel to the litigants, Barrister M. N. I. Emori through a letter from his law firm, Messrs M. N. I. Emori & Co. applied to the then Executive Governor of the State, Senator Liyel Imoke to set up the panel. His Excellency without delay gave approval to the then Attorney – General, Barrister Edward Ogon to set up the panel.

But following a major cabinet reshuffle and the redeployment of Barrister Ogon to the Ministry of Environment, the panel could not be achieved. Worse still, the then incoming Attorney – General, Barrister Attah Ochinke would not even say anything about it.

And, coincidentally, he was the Special Adviser, and later Commissioner, for Trade and Investment, when the privatization exercise took place. So, he was said to have superintended the controversial exercise.

Not impressed by the inaction of the government and its Attorney – General, Barrister Ochinke over the panel issue, the Oban Rubber workers and each of the above mentioned trade creditors returned to the High Court, Calabar with a suit, praying the court for an order of mandamus to compel the government and Attorney – General to establish the panel as provided for under the law made by them. They accused them of “executive lawlessness” and insisted they must obey their law by giving all aggrieved persons access to the panel to ventilate their grievances.

Then in yet another preliminary objection launched against each of these suits, the government and the Attorney – General through their new counsel, Barrister C. R. O. Agbor, Barrister (Mrs.) Ama Ekpo and Barrister Anthony Effiom alleged that since the grievances took place in 2004, when the rubber estate was privatized, the suits for the panel, which were actions brought against public officers, ought to have been instituted within six months from that time.

They asked the various courts, in which the suits were pending, to declare them as statute-barred under section 2(1) of the Public Officers Protection Law of Cross River State.

They also argued that under Order 40 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008, the actions for mandamus ought to have commenced within three months.

The lawyers went further to submit before the courts that since the actions had to do with contracts, that under the Limitation law of Cross River State, they ought to have been brought within five years. They therefore asked the court to dismiss the suits.

Hon. Justice Akon B. Ikpeme then sitting in High Court No. 4, Mary Slessor Avenue, who presided over one of these actions in Suit No. HC/404/2012, was persuaded by these arguments despite a contrary position taken by the workers’ lawyer, Barrister M. N. I. Emori and so dismissed the suit in a judgment delivered on 20th December, 2012.

Not satisfied with her reasoning and conclusion, the workers appealed the judgment through Appeal No. CA/C/110/2013. The appellants’ counsel, Barrister M. N. I. Emori had differed fundamentally from the government lawyers’ position, when in his brief of argument he told the appeal justices that the duty to set up the panel was a statutory one imposed on the government by the law, which the government itself made.

The human rights lawyer and pro-democracy activist had maintained that every passing day that the duty was not performed or the panel was not set up, the wrong of non-performance persisted, thus giving rise to a fresh cause of action on a daily basis. And that the action was not statute-barred at all.

Upholding the submissions of Barrister M. N. I. Emori, the Court of Appeal did not only order the government and Attorney – General to set up the panel, it ordered them to pay a cost of one hundred thousand naira to the workers and used the opportunity to descend heavily on the government lawyer and reprimanded them to always display some sense of morality in their conduct of cases for government. The Court stated that it is in depriving people of their rights such as this that leads to insurgency in the country.

Reacting to the judgment, Mr. George Ochui Ojei, the lead Appellant told CrossRiverWatch that, “Once again the court has shown that it is the last hope of the common man. Where on earth would all these worn-out and systematically – impoverished workers have gone to and have their voices heard, if not the court?

That is why we the Nigerian workers keep saying the courts should be strengthened under the Constitution so that with their independence they can always speak truth to power without fear or favor.”

In a similar reaction, Barrister Emori in his vintage self and full of elation commended the justices for their courage and industry. “I give kudos to their lordships for a job well done. I rise in commendation of their ‘say it spirit’, and their ‘do it spirit’. I mean, what the lower court could not say, they said. What the lower court could not do, they did. That is the kind of judiciary our forefathers dreamt for us. I also salute the workers for their steadfastness and unfettered belief in our judiciary.

They would have simply gone berserk with the injustices they have so far suffered since 2004 from the establishment and the court that was supposed to protect them but they brave the odds and persisted. That spirit of resilience was what endeared me to them and kept firing me to carry on,” he said.

“Now by this judgment, all other cases pending in the High Court on the issue stand decided. We’re waiting for the panel. Otherwise, we won’t hesitate in commencing contempt proceedings,” he added.

Whether the government will appeal the judgment to the Supreme Court was not clear as at press time as all attempts to reach the government lawyer, Barrister (Mrs.) Ama Ekpo were not successful.

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