Monday 28 December 2015

TURNING LAW ON ITS HEAD: MR ORAYE ST. FRANKLYN'S LEGAL OPINION ON IBIM SEMENITARI'S APPOINTMENT AS ACTING MD OF NDDC
On the 23rd of December, 2015, one MR. ORAYE ST. FRANKLYN, Governor Nyesom Wike's aide on Social Media, in a bid to show his boss that he can contribute to legal discourse beyond Facebook and Twitter posts, wrote a piece entitled ''The Manifest Illegality by Buhari in Appointing Ibim Semenitari As Sole Administrator of NDDC[LEGAL OPINION].'' One would have classified the article a 'legal opinion' since legality was an issue and the author was schooled in law, but, in view of its internal contradictions, malnourished logic, misapprehension of the Niger Delta Development Commission Act (hereinafter, the Act), and lack of knowledge about the appointment, it passes for nothing but a rant for relevance. However, given that the misinformed has a right to be properly informed, it becomes a compelling public duty to put the records straight vide this rejoinder.
1. SOLE ADMINISTRATOR: One wonders from where Mr. Oraye brought this concept from as same is not the provision of the Act nor did the Presidency issue any statement appointing Mrs. Semenitari as such. In Sylva vs INEC (2015) LPELR 24447 (SC) 1 at 37, the Supreme Court held: "As it is said, opinions are free but they should not be confused with facts which are sacred". Mrs. Semenitari being appointed 'sole administrator' is the misguided opinion of Mr. Oraye Franklyn. The sacred fact is that Mrs. Ibim Semenitari was validly appointed Acting Managing Director/Chief Executive Officer of the Commission pursuant to section 12(1)(b) of the Act which states that "the Managing Director shall be the Chief Executive and Accounting Officer of the Commission". (See Today, December 21, 2015: https://www.today.ng/news/national/55318/buhari-dissolves-nddc-board-names-semenitari-as-ag-md)
2. ALLEGED INJUSTICE TO AKWA-IBOM IN MRS. SEMENETARI'S APPOINTMENT: Mr. Oraye argued that "it is unjust to appoint a non-Akwa-Ibom indigene as MD during the pendency of the MDship of Akwa-Ibom State", citing the 'rotation' principle of section 4 of the Act which states that "the office of the Chairman shall rotate amongst the member states of the Commission in the following alphabetical order...". Here lies the grand misapprehension:
a. He mistook the Chairman of the NDDC for the Managing Director (MD) of the Commission, perhaps relying on misinformed media reportage of the appointment which failed to distinguish the Chairman from the MD. For the avoidance of doubt, there is a world of difference between the CHAIRMAN of the Governing Board of the NDDC and the MD of the Management Committee of the Commission. Mrs. Ibim Semenitari was NOT appointed as Chairman of the Governing Board of the NDDC, but the Acting Managing Director of the NDDC.(See the Daily Post, December 23, 2015 http://dailypost.ng/2015/12/23/acting-md-of-nddc-semenitari-promises-express-development-of-niger-delta/).
b. He misunderstood the different rotation principles guiding the appointment of the Chairman and MD: While the appointment of the Chairman under section 4 rotates amongst member States "following alphabetical order" (i.e, Abia, Akwa-Ibom, Bayelsa, Cross Rivers, Delta, Edo, Ondo and Rivers), the appointment of the MD under section 12(1) however, rotates among "member states of the Commission with the highest production quantum of oil and shall rotate amongst member states in the order of production amongst member states".
Now, the immediate past MD of the Commission is Barr. Bassey Dan-Abia from Akwa-Ibom State. Having regard to recent 'oil production quantum' among Niger Delta States, Akwa-Ibom is ranked the first, Rivers, second, and Delta, third. Since Akwa Ibom occupied the position of the MD last in the person of Mr. Dan-Abia, it becomes logical, legal and a true reflection of the spirit of section 12(1) for President Buhari to appoint Mrs. Ibim Seminitari of Rivers State (second highest oil producing State following Akwa Ibom) as the MD of the Commission.
c. Term of office: He thought that once a person from a particular state is appointed MD for 4 years, he MUST exhaust the 4 years and even if the Board is dissolved, he must be replaced by another person from the same state to complete the 'term of that State'. Mr Oraye failed to understand that an MD is a member of the Board and the dissolution of the Board also means the removal of the MD. This will be clear under 'Lack of Due Process" below.
The term of office of the MD is provided under section 12(1)(d) of the Act to the effect that the MD shall "hold office on such terms and conditions as to emolument, conditions of service as may be specified in his letter of appointment and subject to the provision of section 3 of this Act". Section 3 states that a member of the Board (MD inclusive) shall hold office for a re-appointable term of 4 years subject to the rotation principle of section 4 as it applies to the Chairman of the Board. Section 5 states that notwithstanding the 4 years term guaranteed under section 3, a member of the Board will however cease to hold office if he becomes bankrupt, convicted of fraud, becomes of unsound mind, guilty of gross misconduct, or resigns.
Therefore, a community reading of sections 3, 4, 5 and 12(1)(d) of the Act shows that while an MD or Board is entitled to 4 years term, same will not be the case where the he or the Board is guilty of "gross misconduct". The immediate past Board of the Commission was entangled in series of monumental corruption and misappropriations. The law is settled that it is the employer/appointor that determines what is gross misconduct. See Adewunmi vs Nigerian Eagles Flours Mills Ltd (2014) LPELR 22557 (CA) 1 at 30 where it was held: "It is correct... that "gross misconduct" is what the employer deems a certain conduct to be". Therefore, if Mr. President, the statutory appointor of the Board, sees that their actions qualify as gross misconduct, he has the powers to not only dissolve the Board, but also, appoint another MD from Rivers State- the next State with the highest quantum of oil production after Akwa-Ibom.
This finds support in section 11 (1) (b) of the Interpretation Act thus: "Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes- (b) power to remove or suspend him". In Abubakar vs Governor of Gombe State (2002) 17 NWLR(Pt. 797) 546, it was held that the Governor's power to appoint members of a Commission also includes powers to remove them pursuant to section 11 of the Interpretation Law. The foregoing shows that the President's action is valid under the Act.
3.ACTING MANAGING DIRECTOR: Mr. Oraye quarreled with the fact that Mrs. Semenitari was appointed "Acting Managing Director", arguing that "no part of the law authorizes the President to appoint anyone in an acting capacity to oversee the operations of the Commission." The corollary of that view is that the President should have appointed Mrs. Semenitari in substantive (rather than acting) capacity. With respect, Mr Oraye's submission does not represent the true state of the law.
First, has the President a power to appoint a person in "acting" capacity? Section 11(1)(c)(ii) of the Interpretation Act states: "Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes- (ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested". This is unambiguous and clear. Of course, it is not difficult to see that Mr. Oraye never knew of this when he wrote.

Second, since section 12(1) (c) of the NDDC Act provides that the MD shall: "(c) be appointed by the President, Commander-in-Chief of the Armed Forces and confirmed by the Senate in consultation with House of Representatives", would it not be placing the cart before the horse to appoint a person as substantive MD before the confirmation by the Senate? If the President appoints Mrs. Semenitari as substantive MD, what then would the Senate confirm?
"In law", states Wikipedia, "when someone is said to be acting in a position it can mean one of three things:
•The position has not yet been formally created;
•The person is only occupying the position temporarily, to ensure continuity;
•The person does not have a mandate.
"The term "acting" is often used in one of these senses to refer to a temporary occupant of an office in government. An "acting" official holds office to ensure both the stability and continuity of his department will continue despite the absence of a formal leader. For example, if the U.S. Secretary of Defense died suddenly in office, the U.S. Deputy Secretary of Defense would take over. However, he/she would only be "acting" in the position, as he/she will not formally hold the office unless he/she is nominated by the President and confirmed by the United States Senate, as required by the Constitution. Acting officials typically play a caretaker role, as it is usually considered questionable for someone to exercise full authority in a very activist way without having been specifically hired or elected to the office.":
See: https://en.wikipedia.org/wiki/Acting_(law)

4. LACK OF DUE PROCESS: the author relying on sections 2 and 3 of the Act argued that due process was not followed in Mrs. Semenitari's appointment on grounds that another person from Akwa-Ibom was not appointed to fill the "vacancy". Again, this is grossly mistaken. Since section 3 states that "Where a vacancy occurs in the membership of the Board it shall be filled by the appointment of a successor to hold office for the remainder of the term of office of his predecessor,", this presupposes that "the Board" must be in existence at the material time for there to be a "vacancy". Given that the President has exercised his undoubted power to dissolve the ENTIRE Board, then, there is no Board where one can find a "vacancy" to fill. A vacancy cannot exist in a non-existent Board. You cannot put something on nothing and expect it to stand: Mcfoy vs UAC (1961) 3 ALL ER 1169 at 1172. .
Hence, when he submitted that, "The implication of this is that by Semenitari's appointment during the pendency of the term of Akwa Ibom State to produce the head of the Commission, Akwa Ibom State is being unjustly denied its right guaranteed by law to produce leadership of the NDDC and the Presidency is violating clearly provided laws of the land and promoting disaffection among neighbouring States and within the Commission", one sees that the author again misapprehended the law as he never averted his mind to the fact no 'term of Akwa Ibom State' was 'pending' having regard to the valid dissolution of the Board. He would have legitimately argued of filing a vacancy if the 4 year lifespan of that Board was still subsisting or only few members were removed. Indeed, Mr. Oraye's 'legal opinion' is not grounded in law and logic!
5. LACK OF NATIONAL ASSEMBLY ENDORSEMENT: Mr. Oraye urged that the appointment did not follow laid down procedure pursuant to section 2(2) of the Act in that the National Assembly was not involved and did not endorse the appointment. The quick response to this rather strange view is this: if the President does not 'appoint', who will the Senate 'confirm'?. The full appointment of an MD under section 12 (1) (c) of the Act is a collection of processes that begin with appointment in acting capacity and ends with confirmation by the National Assembly. Confirmation makes the appointee a substantive MD. It is preposterous for someone to publicly argue that the Senate must 'confirm' a person before he can be appointed by the President. This is standing logic on its head.
5.QUESTIONABLE QUALIFICATION: Mr. Oraye argued, erroneously relying on section (2)(b) of the Act, that Mrs. Semenitari is not qualified to be so appointed "based on the records of her questionable past marked by the well publicized recovery of an illegally possessed government vehicle from her premises. On that score, she cannot be a person of integrity". This is as laughable as the author's thought pattern is. The facts are there that Mrs. Semenitari possessed the cars legally. If it was possessed illegally as alleged, who turned Mr. Oraye and the Rivers State Government into courts of law passing verdicts of guilt?
In AMAECHI VS INEC (2008) 5 NWLR (PT. 1080) 227 SC, the Supreme Court held that only courts of law have the powers to pass a verdict of guilt. Interestingly, Rt. Hon. Rotimi Amaechi and Mrs. Ibim Semenitari as Governor and Commissioner for Information respectively did Mr. Oraye countless favours, graciously opening windows of opportunities for the then undergradute. If Julius Caesar would ask Brutus, "et tu Brute" ("and you too Brutus"?), why can't Mrs. Semenitari also ask Oraye, "and you too Oraye Franklyn"? Mr. Oraye went public with his jaundiced legal opinion to show his boss that he's working. Of course, like Brutus, Oraye Franklyn is an "honourable man".
6. ABSENCE OF AN NDDC BOARD AND CORRUPTION: The writer lastly argued that the absence of an NDDC Board will breed corruption. Having regard to the fact that he has displayed ignorance of the structure and workings of the NDDC one will no longer tutor the aide, but ask him: when Governor Wike appointed the Vice Chancellor of the Rivers State University of Science and Technology in July 2015 and inaugurated a Governing Council/Board of the University four months later in November 2015, did you say it bred corruption? During those months the Vice Chancellor functioned without a Governing Council, was he a sole administrator?
CONCLUSION:
The foregoing reply on points of law to Mr. Oraye Franklyn's article shows that:
1. Mr Oraye's ''Legal Opinion'' is built on a faulty, poverty-stricken legal foundation, deliberately calculated to misguide the unwary reader. With his piece, Mr Oraye has proven to be unaware of the structure and the law setting up the NDDC.
2. President Buhari's appointment of Mrs. Semenitari is not only manifestly legal and valid, but also meritorious on all fours.
3. Like detractors failed in stopping the Lion of the Niger Delta, Rt. Hon. Rotimi Amaechi, from being appointed a Minister, they have failed again in stopping a competent journalist, Mrs. Ibim Semenitari, from being appointed as Acting Managing Director, NDDC. Congratulations Madam!
#MVC
#TheTruthMustPrevail
Written by:
The Legal Directorate,
Media Vanguard for Change (MVC),
Port Harcourt.
December 24, 2015.
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