Lest The Whistle-blowers Run Mad – By TOPE EDWARD FAGBAMIGBE

Ordeal Of The Ikoyi Whistle-Blower

There is no doubt that the rule of law is unambiguously enshrined in the Nigerian Constitution. The only surprising thing to any competent individual is the blatant disrespect shown to this constitutional provision by Nigerian rulers who had openly sworn to uphold it.

From the backdrop of several cases of unjustifiable arrests, unfair trials, executive lawlessness, suppression of free speech and undue domination of minorities… Nigerian rulers have become sybaritic in their conscious reduction of the concept of the rule of law to a mere constitutional myth and never a reality that it was intended to be.’ – Journal of Politics and Law, Canadian Centre of Science and Education

The seemingly endless detention of former National Security Adviser Col Sambo Dasuki, the long detention, followed by release, disappearance and probable abduction of IPOB leader, Nnamdi Kanu, the unlawful increment of electricity tariff by Power Companies despite subsisting court orders to the contrary, among other events, continue to hang around the neck of the President Muhammad Buhari led administration. The whistle blower policy which many thought would aid the much touted fight against the hydra headed monster; corruption (a cardinal objective of Buhari’s administration) has also become a launch pad for missiles hurled the way of the authority and influence of Law and basis of the social contract;  The Rule of Law.

The administration launched another frontal attack on the Rule of Law, this time, with a learned Jurist at the forefront, actively aiding and abetting the attack against everything the Nigerian legal framework and jurisprudence he had extensively written on stands on.

On the 21st of December, 2016, The Federal Executive Council (FEC) introduced the whistle-Blower policy that provides up to 5% reward for whistle blowers for exposing fraud in both public and private sectors. The Minister of Information, Lai Mohammed in a statement released on the 20th of March, 2017 said ‘any whistle-blower whose information led to the recovery of up to N1 billion will receive five per cent of the amount. The reward for any amount between N1 and N5 billion will be five per cent for the first N1 billion and four per cent of the remaining N4 billion, and that any amount over N5 billion will attract 2.5 per cent reward.’

‘What we have done is to reassure potential whistle-blowers that the plan to reward is real. We are not just saying we will pay all whistle-blowers, but we are letting them know in advance what they are entitled to, once the information they provide leads to the recovery of looted funds.’’ Lai Muhammed said.

By the 7th of June, 2017, The Federal Ministry of Finance announced that N375.8 million had been paid to 20 providers of information under the Whistle-blower Policy. The Director of Information, Salisu Dambatta in a statement in Abuja, said that payment was related to the recovery of N11.6 billion. However, Dambatta declined to reveal the specific recoveries for which the monies were being paid saying that “it may endanger the whistle-blowers”.

From the foregoing, some facts are apparent; some money has been recovered with the aid of the Whistle-blower Policy. Some persons (whistle-blowers) have been paid millions of Naira pursuant to the whistle-blower policy. The Federal Ministry of Finance, personified by Minister of Finance, Kemi Adeosun and probably,  the Chairman of the Economic and Financial Crimes Commission (who recently said the #Ikoyigate whistle-blower was already a millionaire) know who the Whistle-blowers are, and, or know if there are no whistle-blowers at all.

The honesty of the persons in whose exclusive knowledge the identity of the whistle-blowers are held in trust for the entire country, is called to question by the torrent of contradictory statements credited to the EFCC chairman, the Minister of Finance and the Chairman of the Presidential Advisory Committee on Anti-Corruption (PACAC)

On the 9th of November 2017, EFCC’s Ibrahim Magu had said the person who ‘whistle–blew’ on the Ikoyi cash stash was already a millionaire. In a prompt response, the alleged whistle-blower’s lawyer quickly put Mr Magu to the strictest proof of the assertion that his client was already a millionaire. Minister of Finance, Kemi Adeosun however intervened at once, saying that the whistle-blower had actually not been paid due to some procedural bottlenecks. Barely a week later, learned Jurist and Silk, Professor Itse Sagay, SAN, speaking from and for the Presidency declared that the whistle-blower had not been paid his due because ‘they’ (wonder who?) didn’t want him to ‘go mad’. May I quickly add that the foregoing contradictory statements came from persons who are sworn to silence, and who have exclusive knowledge of the identity of some whistle-blowers who had, according to them been paid a whopping sum of N375.8 million.

The crux of this piece is a critical analysis of learned Senior Advocate of Nigeria, Prof Itse Sagay`s intervention that the Federal Government had refrained from paying the whistle-blower to prevent him from going mad.

As commonsensical as this may sound to the average Nigerian, Prof Itse Sagay’s attempt at a justification of the delay in payment of the whistle-blower’s due is fatally diametrical. It is seemingly tongue –in–cheekish- to the basic principles Sagay continues to espouse to intending lawyers (i.e. law students) through his published work.

A careful study of Prof Sagay`s book, Nigerian Law of Contract (supra) (the resourceful Legal Authority on Law of Contract in Nigeria) at Page 6, Paragraph 3 would convince any reader (as Prof Sagay has taught every lawyer and continues to teach law students through his scholarly textbook), that when the Federal Government announced and advertised the Whistle-blower policy, it made an offer to the whole world in contemplation of a unilateral contract.

According to Professor Sagay, unilateral contracts are well illustrated in reward cases. For example, reward for information leading to the arrest of a criminal or reward for finding a particular crown cork by beverage and bottling companies. Once any particular person does the required thing, the unilateral promise ripens into a binding contract and the reward must be paid immediately. I humbly refer the learned silk to the case of Carlill v Carbolic Smokeball company (1893) 1Q.B 265, copiously cited as ‘a good example of a unilateral contract.’

There, the defendant company advertised in the newspapers to the effect that, it would pay 100 Pounds to any person(s) who used a smoke ball manufactured by it for a minimum period of two weeks, and nevertheless succumbed to influenza. The plaintiff bought one smokeball and used it as specified and still caught influenza. The company was held liable to the plaintiff for the 100 pounds, and for breach of contract.

The whistle-blower policy of the Federal Government of Nigeria is, and remains an offer made to the entire world, which ripened/ ripens into a unilateral and binding contract the moment somebody, anybody, the #ikoyigatewhistleblower came forward with information leading to the recovery of billions of Naira. Five percent of that amount was due to be paid and must be paid to the whistle-blower IMMEDIATELY, failing which a cause of action for breach of contract arose against the Federal Government.

Even if the whistle-blower was indeed showing signs of ‘Madness’ as postulated by the learned silk, would that justify the non-release of the funds to a Trust Fund or the whistle-blower’s bankers in trust for him, or through his next of kin?

The continued denial of the whistle-blowers’ due puts him at grave risk, and constitutes another fatal put down on the Sanctity of Contract (generously espoused by our dear and learned Prof Itse Sagay) and the Rule of Law for which the Buhari led Administration has earned a notorious reputation..


***The writer Tope Edward Fagbamigbe is a Legal Practitioner and Radio Host

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