Response to Mr. Femi Falana, SAN by Olufab

I have read the opinion of the learned Senior Advocate of Nigeria, Mr. Femi Falana, SAN, where he posited that in the main, the President Muhammadu Buhari [PMB] is not prohibited by law to confer national honours on deserving Nigerians, dead or alive.

In this riposte, I intend only to challenge the opinion of the learned SAN that the award of the GCFR on Chief M.K.O. Abiola, of blessed memory, is legal. On the sanctification of June 12 as democracy day and a Public holiday, I do not wish to express an opinion.

In the submission of the learned SAN, the former CJN was wrong as he (the former CJN) did not cite a specific provision of the Honours Act or any other law that had been violated by the president.

Mr. Femi Falana is legally misconceived in his opinion that no illegality has been occasioned by the award of the national honours on Chief M.K.O. Abiola & Chief Gani Fawehinmi, SAN.

The enabling legislation is the Honours Act and the applicable provisions are as follows:

“3. Mode of appointment to Orders, etc.

(1) The President shall by notice in the Federal Gazette signify his intention of appointing a person to a particular rank of an Order.

(2) Subject to the next following paragraph of this article, a person shall be appointed to a particular rank of an Order when he receives from the President in person, at an investiture held for the purpose-

(a) the insignia appropriate for that rank; and

(b) an instrument under the hand of the President and the public seal of
the Federation declaring him to be appointed to that rank.

(3) If in the case of any person it appears to the President expedient to dispense with the requirements of paragraph (2) of this article, he may direct that that person shall be appointed to the rank in question in such a manner as may be specified in the direction.”

A quick recap. The retired CJN opined that the national honours cannot be awarded posthumously, “much less the GCFR”, which is the highest honour in the land. Mr. Falana, SAN, on the other hand stated that it could and that the retired jurist did not state the law violated.

Mr. Falana is very much mistaken in thinking the former CJN needed to provide the sections of the law violated, when it is quite elementary that violence was done to the entirety of the law itself and general principle of law.

The right of the PMB to award national honours is in no doubt. The germane question to pose is, on whom might a national honour be awarded? The answer stares one in the face much like a star. National honours are to be awarded to persons. If we are agreed, and there can be no divergent opinion on that unassailable fact. The next question is to ask whether Chief M.K.O. Abiola and Chief Gani Fawehinmi fall within the LEGAL definition of persons.

The Supreme Court in Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (Pt. 584) 1 at 36 (1998) 12 SCNJ 255, espoused thus:

“The definition of the word “person” in the legal sense under the Nigerian law is not limited to natural persons or human being only. It clearly admits and includes artificial persons, corporation, sole company or any body of persons corporate or incorporate.”

It follows therefore that persons in the legal sense includes “natural persons or human beings” and also “artificial persons” such as corporate & incorporate bodies. Ipso facto, there can be no doubt that PMB may validly bestow national honours on “natural persons or human beings, and on artificial persons. To add further fillip to the definition of persons, the Interpretation Act, CAP 123 LFN 2004 defines persons as:

“person” includes anybody of persons corporate or unincorporate;

On their demise, could it possibly be argued that Chief M.K.O Abiola and Chief Gani Fawehinmi, SAN continued to share or retained the characteristics of natural persons or human beings? Absolutely not; it would be preposterous and do violence to language to contend so. However, reject my own IPSE DIXIT on this matter. Do I have legal authorities in support of my position, that the dead cannot by any stretch of the imagination be natural persons or human beings?

In the case of UDEOGARANYA V. ADEYI (2010) LPELR-4415(CA), the Court of Appeal instructively defined a person as follows:

“It is beyond dispute that the word “person” when used in legal practice, such as in a legislation or statute connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporates”.

Just to pre-empt some of my colleagues or lay men who may say, ‘but the Court of Appeal is not the highest Court in the land’; I have good news. Let me dispel any doubt.

The Supreme Court of Nigeria, in OMOKHAFE V. ESEKHOMO (1993) LPELR-2649(SC), explicating on the Legal Personality of a dead person, has this to say, per Onu, J.S.C.:

“Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity.”

If the highest Court in the land has asseverated that a dead person is no longer in the eyes of the law a person, then to have conferred the respective national honours on both Chief M.KO. Abiola and Chief Gani Fawehinmi has been done in clear breach of the National Honours Act. Respectfully, in my opinion, nothing more needs be said on this said over that issue.

POSTSCRIPT

On the issue of whether the honours bestowed on both Chief M.K.O Abiola & Chief Gani Fawehinmi may be conferred posthumously; it is pertinent to state that there is no specific provisions allowing posthumous awards in the enabling Act. Until the National Assembly amends the Act, it is respectfully submitted that any such posthumous award is clearly illegal. It is absurd for anyone to read into an Act of the National Assembly what is not therein provided for.

Compare the above position with the enabling legislation for members of the Armed Forces, you will find the following:

“3. Eligibility for award of medals

(1) The Nigeria Star may be awarded to any member of any of the armed forces for the most conspicuous bravery in the presence of the enemy, or for a pre-eminent act of valour or self-sacrifice in the presence of the enemy, or for devotion to duty in the presence of the enemy, and may be awarded posthumously.”

The legislation pertain to the Armed forces makes specific provision for posthumous award! One would have thought that the lawyers advocating so vociferously for posthumous award would have asked themselves one simple question: “why would one legislation be silent on the issue of a posthumous award whilst another piece of legislation be specific on the point”?