‘Joint-tickets cannot be separated in law after candidates are returned elected’

Okey Egbuchu is the Managing Partner of CLP Legal. He started his career as a litigator and practiced briefly as a federal prosecutor between 1992 and 1993 and thereafter as a civil, commercial and maritime litigator in the then law firm of Ukpong & Omotoso (now CLP Legal) where he rose to become partner in 2001. Energetic and versatile, Egbuchu has expanded his expertise and advised many clients both Nigerian and multinationals on project finance, capital markets, corporate structuring and restructuring, infrastructure, oil and gas, data protection, labour, tourism and hospitality and international joint ventures.He was part of the nucleus of the team that developed the primary report for the Persons with Disability Bill now an Act of the National Assembly.A member of Council of the NBA Section on Business Law and the immediate past Chairman of its Travel Tourism and Hospitality Committee, Egbuchu is a member of its Energy, Infrastructure, Banking and Finance Committees.

The governorship candidate of the Peoples Democratic Party (PDP) Ademola Adeleke was recently declared the winner of the Osun State election by the Election Petition Tribunal and at the same time, a high court few days later said he was not qualified to run for the office in the first place. A Lagos based senior lawyer, Mr. Okey Egbuchu in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE examines the likely outcome in an event that both decisions are upheld at the apex court of the land. He also spoke on other topical issues.

If the two conflicting verdicts involving senator Adeleke are sustained at the Supreme Court, what would be the likely outcome?
I will like to make some clarifications on the two matters. One is an election matter while the other one from the high court is a pre-election matter.  Both judgments are valid. So the public needs to get it clear that there is no confusion here.  If the judgment of the high court is sustained at the Supreme Court, it means that Adeleke was never qualified to contest the election. If he was not qualified to run, then he could not have won the election. Recall the case of Amaechi V Omehia and the one involving late Abubakar Audu in Kogi state. In Nigeria, it is the party that contests for an election, so logically, from that premise, if it is found that PDP won that election up to the Supreme Court level, then automatically, his running mate the deputy governor-elect by virtue of the decision of the tribunal will step in.

Since it is the PDP that owns the victory, they will provide us with a candidate as governor because they won it. It is as simple as that. We had similar thing in 1999 when Atiku Abubakar had already won the governorship election of Adamawa state with Boni Haruna as his running mate. He was selected by the then president, Olusegun Obasanjo to be his running mate, the Supreme Court held that Haruna should take up the position simply because they won on a joint ticket and they both own the victory.  From all the decisions that the courts have taken, the victory belongs to the party. So, the party will provide the next governor of Osun state.

It is certain that it is the party that contested the election, but the uncertainty lies on what the position of the court would be if it happens so because in the case of James Falake you mentioned in Kogi state, he pursued his matter to Supreme Court and lost?
There is a major difference in that scenario. Audu Abubakar had not been declared the winner in that election. So it was inconclusive as at the time he died. In the Osun case, as far as the Tribunal is concerned today, Adeleke has been declared the winner of the election. So, how will the party now substitute him? If it is found that Adeleke was not qualified to contest, my view is that his running mate will be asked to step into his shoes. That is unlike the Kogi example where the man had not even been declared the winner.

Are you saying that the situation whereby the party decides to bring in someone who did not participate in the election to stand in for Adeleke will not arise in this circumstance?
It may still arise because the victory belongs to the party.  What if the deputy is not also qualified as well? It can throw up issues. If two of them did not qualify, the issue could be whether the PDP fielded any candidate at all. The nuances of each case would determine the reaction of the party and that of the courts. But I think that in a situation where the result has been declared, the running mate should step into his shoes, but if no candidate has been declared winner due to force majeure, for instance as in the Abubarkar Audu case, it will be a different case.  The party can step in to present another candidate to complete the process. This is because the deputy did not contest in the primaries. Faleke did not win the primaries. It was Abubakar that did and again the elections were inconclusive. But in Osun case, the court says Adeleke won and Adeleke has a ticket with a running mate, so it is a joint-ticket, which you cannot separate. 

The National Judicial Council (NJC) has forwarded their decision to Mr. president. It is learnt that it recommended the compulsory retirement of the CJN and retaining the acting CJN. But the circumstances of the emergence of the acting CJN appear similar to that of Abia state. Do you suspect double standard here?
I do not want to speculate about the recommendation of the NJC. I will dismiss the rumour of the so-called recommendation, although you are a journalist, who is privy to certain information we may not have, but I don’t want to speculate until I see their recommendation. Without seeing the recommendation of the NJC,  I would also not comment on the Abia State scenario.  But I would rather say that as a country governed by law and as a country that would want to be accepted in the comity of nations, and considering that we are dealing with the head of the third arm of government – the judiciary, this would have been better handled and the dignity of the judiciary maintained. That the Chief Justice of Nigeria can be suspended from office based on an ex-perte order apparently moved by no lawyer, without any specific order or apparent basis is shocking to say the least. This is not to say that the CJN should not be subject to the laws of the land, but we must understand that we must follow due process. Even the president in his statement to the country justifying the suspension of the CJN acknowledged that procedure was not followed, not only in charging the CJN, but in the whole matters leading up to the suspension of the CJN in the first place.

I think that we could have achieved the same thing if indeed the CJN needed to be disciplined in any way by following the proper procedure. The CJN could have been sent to the NJC. It is the same NJC that is now making recommendations to the president. My view is that if the man is guilty for any infraction that is weighty enough for the office he occupies, the logical thing is that he should go. My worry is that where we want to maintain rule of law and order, we must not make mockery of the man who symbolizes the office. If the president today were to be removed, he would be accorded all his rights and privileges and all dignities appertaining to that office. Imaging a scenario where a captain in the army would be trying a field marshal who is still in the office. It beggars imagination. He needs to be removed first. And I think that the NJC is quite capable of doing that because the CJN would step aside any time petition against him is to be considered, just like the Acting CJN didn’t preside over the current NJC sittings considering the petitions against him.

But the concern is that he may still wield a lot of influence since he is the chairman of the Council?
If it were true, it would have still been of concern. For the fact that he is suspended now did not change his influence. Mind you, the acting CJN has a petition against him also. He didn’t step aside as the acting CJN for the petition to be considered. He only stepped aside from chairing the proceedings as chairman of the NJC. So, what is the difference?

The difference is that there is already a crisis at hand.
The procedure is clear.  The CJN is  not going to be a judge in his own case. We are so used to pillorying our judiciary. The judiciary is quiet capable of handling this matter. The time the judiciary runs into scandalous trouble is when the executive interferes in the way it is run. Anything that the judiciary handles, procedures and steps must be followed. There is real probability from what I have seen from the proceedings of the code of conduct tribunal that it may come to nothing if appealed against based on what I understand the law to be due to the interference of the executive. Justice must not only be done but must be seen to be done. If you don’t follow proper procedure, you run into trouble.

Although you have said you don’t want to speculate about NJC recommendations, I still want you to comment on the similarities of the position taken by the acting CJN in relation to what happened in Abia state judiciary in the case of Justice Obisike Orji?
It is also a matter that the NJC had already made a recommendation to the president. So, it is difficult for me, but I don’t see the scenarios as identical.  The assumption of office by the then acting CJ of Abia state was more or less a direct affront on the NJC. In the scenario we have now, there was a court order authorizing the president to act, even though the court order appears unlawful and amorphous to me. The president still acted on the basis of a court order even if considered widely to be dubious.  The president acted based on it.  Mind you, the CJN was not removed from office. He was only suspended. So he is still the CJN of Nigeria.  Beyond this, I don’t want to say anything. Even though I think that what we should be concerned about is that the court order and the entire process that led to the suspension of the CJN is faulty. If it is faulty in my view, it shouldn’t even stand and it should collapse naturally by the time it is interrogated in court. I am not saying that the assumption of office of Justice Tanko is according to law or not. I am saying that the scenario is a bit different, although I am not ready to come to any conclusion regarding his assumption of office at this time. 

The Company and Allied Matters Act (CAMA) are under review. What is the significance of this?
The existing CAMA was promulgated in 1990. We are in 2019. That is 29 years now. Things have changed. It is necessary to amend CAMA to be in tandem with certain aspects of our developments now.  There are many important introductions in the amendment, but for me, the one that caught my immediate attention is that one person can now own a company and be it’s sole director.  You don’t need to have anybody to own your company with you and this has been going on in many climes. I can be the sole shareholder or director. The sole proprietor of a business can now benefit from the veil of incorporation and limit his liability. It’s micro company friendly. 

What do you think is the reason the Petroleum Industry Bill has remained protracted at the parliament?
It is all about politics. It was not supported initially by northern lawmakers because of the benefits it further allocated to oil producing areas in terms of communities having allocations and percentage share of the income of the oil produced in there area.  It amounted to taking money from non-oil producing states. The oil producing companies protested the fiscal regime as being unfriendly. Parliament decided to break it into different laws so that some issues will not detain the whole. Again, it is still politics that is detaining us. There are several interest groups who are trying to make sure that they push their interests. Certain aspect of it deprived the minister of petroleum of certain powers. So, everybody is pushing back and fighting. In the mean time, the oil and gas industry is suffering because investors are not sure of the regime of law they should base their analysis on. The oil industry has basically stagnated. All you have are existing projects. 

What circumstances threw up your emergence as the managing partner of CLP Legal?
It was a naturally change. The founding managing partner has been on the driving seat for nearly three decades. After almost three decades of running a place, you will want fresh ideas and impetus. And the lot fell on me among all the other partners considering my exposure, expertise, my level of knowledge and maturity and my number of years in the firm. April 5, 2019 makes it 25 years that I have been with the firm. I joined the firm barely two years after my call to the Bar. I understand the firm, its philosophy and vision.

What are you looking forward to?
I am expected to improve the firm in every parameter. That is basic. I have the short, medium and long-term strategies. For the long term, I want us to be the top three firms in Nigeria. One thing I am passionate about is to make here the best place to work, not just in Nigeria but the world within the next three to five years. Already we have a family atmosphere here, but I am going to strengthen the structures. It doesn’t matter who is in charge, the idea is to ensure that the culture permeates to the benefit of all, so we can continue to attract the best.

How is your emergence reassuring your clients of your commitment to their causes?
Luckily, I am not a stranger to them at all. They are more comfortable that there is going to be continuity. In fact, a lot of corporate clients want continuity and an institution; not a one-man-show that when he dies, they cannot even get their case files easily. I am just the next generation from the founders and well embedded in CLP. So, it gives our clients confidence.

What words of advice do you have for firms in terms of having partnerships that can outlast their owners?
Everywhere, partners come and go. The difference between the developed world and us is that they have hundreds, even thousands of partners. So, if 50 leave for instance, the firm will survive. Even in Nigeria here, partners of multinational firms leave all the time and you wont get to hear about it. It is just that partners in law firms in Nigeria have not grown to that extent of having so many partners. The key aspect of partnership is sincerity of purpose. You must be sincere and fair to each other. That is the foundation. You must also love each other. You cannot really have a partner you hate when there are few of you. Partners must also have the same vision about how and where you want the firm to go. As partnerships grow and continue to admit new partners, the issue of break-up becomes less relevant in those firms because there will be too many of them and partnership exits become less significant and consequently the so-called break-ups.