There have been varied reactions to the recent posthumous
national award of the Grand Commander of the Federal Republic (GCFR) on Chief
M.K.O. Abiola, and a posthumous national award of Grand Commander of the Order
of Niger (GCON) on Gani Fawehinmi – a respected human rights activist, by
President Buhari. I personally feel the awardees are most deserving and worthy
recipients even if the award was politically motivated. The pertinent question
however remains whether the awards are legal in the eyes of the law.
Justice Belgore, who was the Chief Justice of Nigeria (‘CJN’)
between 2006 – 2007, opined that honouring Abiola with a GCFR was illegal. He
stated that no national award could be awarded posthumously, let alone the GCFR
– the highest honour in the land.
“It is for people living,” Belgore had said. “The only thing they could do is to name a place after him, but national honours award, no.”
In reaction to Belgore’s assertion, a prominent Nigerian lawyer, Femi Falana, SAN, observed that the former CJN did not refer to any section of the National Honours Act or any other law that has been violated by President Buhari. He argued that the National Honours Act has not prohibited or restricted the powers of the President to confer national honours on deserving Nigerian citizens, whether such person is dead or alive.
“No doubt, paragraph (2) of the Honours Warrant made pursuant to the National Honours Act provides that ‘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…’
“But paragraph (3), thereof, has given the President the unqualified discretion ‘to dispense with the requirement of paragraph (2) in such manner as may be specified in the direction,” the senior advocate said.
He stressed that since the national awards conferred on Abiola and Fawehinmi cannot be received by them in person, the President may permit their family members to receive same on their behalf.
In this rejoinder, I
intend to join issue with the learned SAN that the awards of the GCFR on Chief
M.K.O. Abiola and the GCON on Chief Gani Fawehinmi were legal in the
circumstances in which they were made.
To properly situate the subject matter of this discourse, it will be necessary to give a précis of the relevant provisions of the extant laws on the subject. The enabling legislation is the National 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.”
Falana's position is
predicated on paragraphs (3) above where it is provided that the requirement of
paragraph (2) above may be dispensed with if it is expedient to the President. The
easiest way to dealing with this issue is to first answer the nagging question
of who is a 'person' under the law since the enactment is replete with that
word.
The enactment says National honours are to be awarded to a 'person'. Flowing from the above, the gravamen of this discourse will lie in determining whether a dead person still has the right to be continued to be addressed as a ‘person’ or whether this right is foreclosed by reason of death. In other words, if we are agreed, and there is no divergent opinion on the unassailable fact the award is to be bestowed on a ‘person’ then the next inevitable question will be whether or not Chief M.K.O. Abiola and Chief Gani Fawehinmi fall within the legal definition of persons in law.
The Interpretation Act, CAP 123 LFN 2004 defines a person as:
"person" includes anybody of persons corporate or unincorporate."
Furthermore, Black's Law Dictionary 6th Edition, pg. 791, defines 'person' as follows: "In general usage, a human being (i.e. natural person), though by statute term may include labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers."
To add further fillip to the definition of persons, the following case law authorities are apposite on the point:
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.”
In the case of Udeogaranya v. Adeyi (2010) LPELR-4415(CA), the Court of Appeal also 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 incorporate”.
It is respectfully submitted that ‘person’ referred to above is not just anybody but a legal person. If there is no doubt that it is legal persons being referred to in acts and statutes, it follows therefore that a dead person is not a legal person. A legal person is as defined above. It is settled under our laws that a dead person ceases to be a legal person or to have legal personality. The Supreme Court of Nigeria, in Chief John Ehimigbai v. Omokhafe v. Chief John Ilavba Oje Iboyi Esekhomo (1993) LPELR – 2649 (SC) held thus:
“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 legal personality from the date of his death and as such, can neither sue nor be sued personally or in a representative capacity. The personality of a human being is extinguished by his death. The common law principle expressed in the maxim action personalis moriturcum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. See Kareem V Wema Bank Ltd (1991) 2 NWLR (Pt.174) 485; Akunmoju V Mosadolorun (1991) 9 NWLR (Pt. 214) 236 (CA) and Hodge V Marsh (1936) A.E.R 484.”
It follows therefore that persons in the legal sense includes “natural persons or human beings” and also “artificial persons” such as corporate and incorporate bodies. Ipso facto, there can be no doubt therefore that the President may validly bestow national honours on “natural persons or human beings, and on artificial persons (corporations). What is doubtful is whether or not the President can bestow national honours on dead persons who are not legal persons in law.
It is clear that the emphasis above is on living persons as against a dead person. To proceed further we may need to highlight the distinguishing characteristics of a living person as against a dead person. The difference between the two concepts boils down to "existence". Here's what really exists:
1. An arrangement of matter with various traits, such as a metabolism, the ability to process information, etc.
2. An arrangement of matter that once had those traits but now doesn't.
You can choose to label either, both, or none with the word "person," but your choice alters nothing about what actually exists. If you call the second thing a person, it will be an arrangement of matter that once had those traits but now doesn't. If you don't call it a person, it will still be an arrangement of matter that once had those traits but now doesn't.
In a nutshell, a person is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of property, or legal responsibility. A dead person is a person who once had those attributes but now doesn’t.
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? I dare to say it would be preposterous and do violence to language to contend so. In a nutshell, the duo were former 'persons' and former 'Nigerians'. They can only be referred to in past and not present tense.
If the highest Court in the land has affirmed positively that
a dead person is no legal personality in the eyes of the law, then to have
conferred the respective national honours on both Chief M.K.O. Abiola and Chief
Gani Fawehinmi as has been done in this instance is in clear breach of the
National Honours Act.
In the interpretation of Statutes, the cardinal rule is that where the provision of a statute is clear and unambiguous, the duty of the court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more. However, where confronted with an ambiguous statutory provision, the basic task before a judge is to ascertain the intention of the legislature.
In ascertaining the
intention of the draftsman of the National Honours Act, it is clear that it was
never intended that the award is to be conferred on a deceased Nigerian. Paragraph
(3) of the Act referenced by Falana, SAN is only applicable if the honouree is
unavoidably absent and not dead. If the intention was to confer the honour
posthumously, the Act would have expressly stated so. This is so because in the
same piece of legislation a provision was made for posthumous awards for dead
servicemen.
If the legislation
pertaining to the Armed forces makes specific provision for posthumous award
while the preceding provision for award on deserving persons make no such
provision. One would have thought that the lawyers advocating so vociferously
for posthumous award would have asked themselves one simple question: “why
would one provision be silent on the issue of a posthumous award whilst another
provision in the same piece of legislation is specific on the point"?
Premised on the foregoing, it is my candid opinion that the awards bestowed on Chief Abiola and Chief Gani respectively, though deserved are illegal. The National Assembly may need to amend the law to accommodate posthumous awards like the instant one.
The FG May also do well to rename historical or national monuments after these deserving former personalities.
