By Dr Muiz Banire SAN
Where the government is held responsible for dereliction of duty, it may in turn recover its losses from any private owner of such trucks whose failure to comply with the law led to the losses for which the government is held accountable due to dereliction of duty.
This puts everybody in check. More often than not, we experience houses collapsing all over the country. In most of the building collapse incidents, workers and people around such collapsed buildings die, get maimed and harmed in one way or the other. In some instances, investors in such collapsed buildings lose their investments.
An apt example is the recent building collapse in Ikoyi, Lagos. In this regard, the government owes it a duty to the victims that what was approved was consistent with the planning regulations, monitor compliance with the delivery as approved as well as ensure the insurance of the buildings during construction and after completion where such development is more than two floors. Ensuring that the materials used in building are of good quality is the duty of the government.
The implication of all these is that where government fails in any of those regards, and a building collapse, the government is liable to all the victims.
Where the insurance has not been done, the government steps in to assume liability as its act or omission in the enforcement occasioned the loss.
Investors invest because of the representation by the government to assure quality delivery. Should the government fail to remedy this type of injury, the real estate market as well as the financial sector might be endangered.
There will be a loss of confidence in real estate investment while financial institutions will equally be reluctant to fund investments in the area. This will ultimately imperil the already volatile mortgage sector in the country. Another area of interest is the state of our roads.
Nigerian roads are largely nourished and dotted with several potholes and craters, which cause untimely deaths of motorists and road users. Many are daily maimed and incapacitated as a result of road accidents triggered by these dilapidated roads.
Again, the government owes citizens the duty of ensuring safe roads in all ramifications. That further explains, beyond the road maintenance agencies’ establishments, the existence of the road safety organization.
The horrific and oppressive thing about all this is that the government, beyond the collection of various road levies, including motor vehicle licence fees, insists on the collection of roadworthiness fees, which presupposes the road-worthy state of the vehicles plying the roads.
The contradiction, however, lies in the fact that where the government insists on the roadworthiness of vehicles, the government must ensure that the roads themselves, together with the relevant infrastructures, are equally worthy of being called roads.
Alas, the contrary is what obtains. Most roads in the country are not roadworthy. Is this not oppressive, immoral and, possibly, illegal? That is a story for another day.
The right of the victims of this dereliction of duty is guaranteed and must, henceforth, be ventilated, at least, to make the government responsible. I can continue to replicate these scenarios without end in Nigeria but suffice to content ourselves with the above in unveiling the cloud over this area.
In virtually all instances of the mishaps alluded to above, it is not usually accidents that naturally occur but simply a dereliction of duty by the government. Do we hold the government accountable in the instances above and many more? Certainly not. As said earlier, the government have succeeded in the bastardisation of our psyche to the extent that victims of such ineptitude by the government solace in divinity, regarding such deprivations or injuries as acts of God and surrendering to fate.
I am not too sure that this is the gospel of God. God does no evil and wishes no one evil. God demands accountability from all, particularly the leaders.
Why would anyone, therefore, encourage otherwise, if our creator already set this standard for us? Returning to the latest governmental failure as hinted above, that is, the Abuja-Kaduna train attack, are passengers for which the government is seeking assistance not insured? Is the train and, by extension, the rolling stock not insured?
Whose responsibility is it to execute these assignments?
Remember that the government, through her agency, runs the train service and, therefore, owes the duties as enumerated above. Immediately the train attack occurred, did it not become the duty of the government to trigger the insurance towards taking care of the casualties rather than burdening already exasperated Nigerians?
Government needs not turn itself into a beggarly nuisance. What is happening here? Someone needs to explain or fill this gap for us. Where those responsibilities are carried out as required, government even needs not incur much, if at all any expense, where desirable, as it is the responsibility of the passengers to do.
It costs the government virtually nothing as most times, the cost of such insurance is usually borne by the passengers through the ticket fares as obtainable in the aviation sector. Even the road sector is not an exception, as the whole essence of the third-party insurance is to cater for instances of this nature.
Where, however, there is the failure, as usual in those regards, then the victims or their estates must hold the government liable and accountable for their losses.
Even where the negligence of government is established in the security of the trains, the insurance companies can also sue the government to recoup their losses.
It is when this is done that the government becomes alert and alive to its responsibilities. Then, officials will be held accountable by multiplier effect and sanctioned. This is the only route towards taming the rampaging impunity in this area by the government. Further to the duty of care owed the citizens by the government in instances such as painted above, government putatively through the various legal framework has represented its capacity and duty to ensure standards in the various sectors.
There exist laws regulating the physical development of properties, stipulating insurance of properties, dealing with road traffic and safety, and regulating the environment at large to mention but a few. In all these and many more, there can be said to be representation by the government to the citizens that it will regulate the sectors and maintain standards in order to guarantee people’s safety.
Consequently, government cannot resile from this responsibility as it is estopped. This implies that the government cannot abdicate such responsibilities.
Hence, victims of such failure of governance must brace up to interrogate their rights. I know that a lot of Nigerians are ignorant of these rights and, where they are even aware, they lack the knowledge of how to assert same. It is in this regard that the relevant civil society organizations, particularly the Nigerian Bar Association, must rise up to the challenge of not only enlightening the citizens of these rights, but also assisting pro bono in the exercise of the rights. Beyond those two factors of ignorance and spiritual consolation, a major factor militating against the realization of these rights is the access to the Nigerian courts.
This challenge is twofold as it relates to cases of this nature. The first aspect relates to the length of time it takes to ventilate such rights while the second is the cost implication of asserting the rights.
In Nigerian courts today, cases of this nature are not given accelerated hearing unlike those cases that border on criminality and corruption. Consequently, it takes forever to conclude cases of this nature.
At an average, if a claim of this nature is initiated at the court of first instance, it will take an average of forty years to travel up to the apex court of the country. That is why my brother Silk, Fidelis Oditah, SAN, QC, once said that access to justice is not so much of a headache in Nigeria, but the exit from justice is the impediment. This implies that it is easier to file a case or commence a suit in Nigeria, but concluding the case takes forever. By the time most of the cases are determined by the Supreme Court of Nigeria which, is the apex court, most of the claimants are dead.
This, therefore, constitutes a disincentive to ventilating such rights when breached by the government.
On the other hand, apart from the obstacle of briefing a lawyer which is often times at prohibitive cost, the court fees are astronomical. While it is possible to even find a legal practitioner willing to undertake the ventilation of the claims free of charge, oppressive fee charged by the court is a disablement.
Although, in the Civil Procedure Rules of most courts in Nigeria, there is provision for waiver of such court fees for indigent Nigerians, the bad news is that the Chief Judges of the courts hardly exercise their discretions in favour of these poor people, as the courts have recently been converted into revenue agency rather than a court of justice. Our Chief Judges are now, by and large, converted into revenue officers rather than managers of justice.
They forsake the cause of justice for revenue. What a pity! The sad news is that most victims of the act or omission of the government are wretched people, daily workers who earn peanuts just to survive by the day.
They are, therefore, unable to mobilize the required resources to ventilate their causes. Their families or estates are too weak financially to fight any cause. This, therefore, is the end of the story for them. This is where the various civil society groups’ intervention becomes compelling.
The Nigerian Bar Association and lawyers generally need to take up this challenge towards ensuring that the needful is done. I am sure that my readers will promptly challenge me on this, and quite rightly so, on what have I personally done in this regard? I must confess that I have not done impressively on this, not so much due to my fault, but largely due to the victims not coming forth to ventilate their rights. It is unprofessional for lawyers to solicit for briefs.
Without them approaching lawyers, it will be unethical to start searching for them. Hence, I believe with this expository, victims of such breaches will wake up to interrogate their rights by seeking assistance where required. Fellow Nigerians, let us wake up and start holding our government to account as it is the only way to tame the growing impunity in the country. Lastly, I am not unaware of the fact that close to a trillion naira stands against the government by way of damages already awarded by the courts for breaches of fundamental rights by various governmental agencies which have remained unredeemed as the government considers itself above the law.
In many cases, rights violations by the police account for more than 50% of such damages awarded by the courts and this has made the police to consider court decisions as mere barking without a legal tooth to bite.
This constitutes another further disincentive to the citizens to interrogate their rights against the government. I still feel compelled to call on the Nigerian Bar Association to step in on this score to ensure that government is made more accountable.
Without the avenue to remedy injuries, it is not possible for our nation to develop and the confidence of the people, both citizens and foreigners, in our justice system and sanctity of contracts “shall remain but a fleeting illusion to be pursued but never attained”.
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