Court Refuses To Compel Buhari To Enforce Benue’s Anti-Open Grazing Law

A Federal High Court in Abuja on Thursday rejected a suit that
sought to compel President Muhammadu Buhari to instruct security
agencies in the country to enforce the Benue State’s Open Grazing
Prohibition and Ranching Law passed in 2017.

Justice Ijeoma Ojukwu, in a judgment read during a virtual court
proceeding, said her court lacked the jurisdiction to entertain the
suit brought by the plaintiff and proceeded to strike it out.

The plaintiff, Matthew Tile Nyiutsa, who said he is a lawyer and
indigene of Benue State, had sued President Muhammadu Buhari,
claiming that the President, by his oath of office, incurred a
mandatory obligation to uphold and preserve the law of the land,
but has failed to abide by his oath when he refused to implement
the Benue State’s Open Grazing Prohibition and Ranching Law.

Nyiutsa added that despite the existence, herders have remained
unrelenting in practicing open grazing, engaging in killings and
destructions, but that the President has failed or refused to
enforce the law, in view of his oath of office by using the
security and enforcement apparatus within his powers.

In her judgment on Thursday, Justice Ojukwu held that the
failure of the President to discharge his official responsibilities
in accordance with his oath of office is not justiciable and that
the court cannot hold the President accountable for not abiding by
his oath of office.

“In my view, the courts do not have the vires to entertain any
suit bordering on compliance with the oath of office of the
President for the reason that it is not justiciable.

“When the person, in this regard, the President, fails to abide
by the oath, the National Assembly, in line with the set down
procedure, may consider its misconduct in the performance of the
functions of his office and take the appropriate measure under the
Constitution. It is not the duty of this court to adjudicate on

“The plaintiff may have genuine concern in respect of the facts
averred, but there are procedures set out by law to address issues
concerning citizens’ rights and violations.

“There is no contest that the Open Grazing Prohibition and
ranching establishment law 2017 was validly passed by the Benue
State House of Assembly and that the law is still in force,
especially as the law has not been struck down by any court of law
or court of competent jurisdiction.

“The implementation, therefore, lies with the machineries of the
state and law enforcement agencies like the police, whose duty is
to maintain law and order and to secure lives and properties in
accordance with Section Four of the Police Act.

“It behooves the people of Benue State and law enforcement
agencies, task force, etcetera to employ all legitimate means to
implement that law.

“It is not the duty of the defendant on record. It is only where
there is an infraction of the provision of that law that the court
may be invited to impose the prescribed sanctions

“In so far as the President has not issued any Executive Order,
which runs contrary to the said law, this court cannot hold him
accountable.

“In the same vein, the court is not the appropriate arm to check
any infraction in the performance of the functions of the office of
the President arising from the oath of office taken by the
President on the assumption of his duty as the President of the
Federal Republic of Nigeria.

“That duty or obligation belongs to the National Assembly,
through the process prescribed by the Constitution,” the judge
said.

Justice Ojukwu equally held that by the provision of Section 308
of the Constitution, the plaintiff was wrong to have sued President
Buhari in his personal capacity on an issue that relates to the
performance of his official responsibilities.

“The immunity provided in Section 308 of the Constitution is
protecting the occupier of the offices named in the section against
the institution of either civil or criminal suit against him/her in
the section from being sued in his personal capacity while in
office.”

She said although the suit was in relation to the responsibility
of the President in his official capacity, the plaintiff went
outside that official capacity by adding the personal name of the
name – Muhammadu Buhari – to the suit as a defendant.

“The proper defendant, in this case, ought to have been the
President, Federal Republic of Nigeria. The life of this suit
cannot be sustained if, for any reason, President Muhammadu Buhari
cases to be in office, this suit will automatically abate since it
cannot be sustained by any other President, his personal name
haven’t been attached.

“This cannot be the position of the law since governance is a
continuum and does not terminate because the tenure of office of a
particular officeholder has elapsed.

“The proper defendant in this case, on the alternative, should
have been the Attorney General of the Federation, and the defendant
on record (Buhari) as a nominal party. Or, in the alternative, the
President, the Federal Republic of Nigeria,” Justice Ojukwu
said.

A Federal High Court in Abuja on Thursday rejected a suit that
sought to compel President Muhammadu Buhari to instruct security
agencies in the country to enforce the Benue State’s Open Grazing
Prohibition and Ranching Law passed in 2017.

Justice Ijeoma Ojukwu, in a judgment read during a virtual court
proceeding, said her court lacked the jurisdiction to entertain the
suit brought by the plaintiff and proceeded to strike it out.

The plaintiff, Matthew Tile Nyiutsa, who said he is a lawyer and
indigene of Benue State, had sued President Muhammadu Buhari,
claiming that the President, by his oath of office, incurred a
mandatory obligation to uphold and preserve the law of the land,
but has failed to abide by his oath when he refused to implement
the Benue State’s Open Grazing Prohibition and Ranching Law.

Nyiutsa added that despite the existence, herders have remained
unrelenting in practicing open grazing, engaging in killings and
destructions, but that the President has failed or refused to
enforce the law, in view of his oath of office by using the
security and enforcement apparatus within his powers.

In her judgment on Thursday, Justice Ojukwu held that the
failure of the President to discharge his official responsibilities
in accordance with his oath of office is not justiciable and that
the court cannot hold the President accountable for not abiding by
his oath of office.

“In my view, the courts do not have the vires to entertain any
suit bordering on compliance with the oath of office of the
President for the reason that it is not justiciable.

“When the person, in this regard, the President, fails to abide
by the oath, the National Assembly, in line with the set down
procedure, may consider its misconduct in the performance of the
functions of his office and take the appropriate measure under the
Constitution. It is not the duty of this court to adjudicate on

“The plaintiff may have genuine concern in respect of the facts
averred, but there are procedures set out by law to address issues
concerning citizens’ rights and violations.

“There is no contest that the Open Grazing Prohibition and
ranching establishment law 2017 was validly passed by the Benue
State House of Assembly and that the law is still in force,
especially as the law has not been struck down by any court of law
or court of competent jurisdiction.

“The implementation, therefore, lies with the machineries of the
state and law enforcement agencies like the police, whose duty is
to maintain law and order and to secure lives and properties in
accordance with Section Four of the Police Act.

“It behooves the people of Benue State and law enforcement
agencies, task force, etcetera to employ all legitimate means to
implement that law.

“It is not the duty of the defendant on record. It is only where
there is an infraction of the provision of that law that the court
may be invited to impose the prescribed sanctions

“In so far as the President has not issued any Executive Order,
which runs contrary to the said law, this court cannot hold him
accountable.

“In the same vein, the court is not the appropriate arm to check
any infraction in the performance of the functions of the office of
the President arising from the oath of office taken by the
President on the assumption of his duty as the President of the
Federal Republic of Nigeria.

“That duty or obligation belongs to the National Assembly,
through the process prescribed by the Constitution,” the judge
said.

Justice Ojukwu equally held that by the provision of Section 308
of the Constitution, the plaintiff was wrong to have sued President
Buhari in his personal capacity on an issue that relates to the
performance of his official responsibilities.

“The immunity provided in Section 308 of the Constitution is
protecting the occupier of the offices named in the section against
the institution of either civil or criminal suit against him/her in
the section from being sued in his personal capacity while in
office.”

She said although the suit was in relation to the responsibility
of the President in his official capacity, the plaintiff went
outside that official capacity by adding the personal name of the
name – Muhammadu Buhari – to the suit as a defendant.

“The proper defendant, in this case, ought to have been the
President, Federal Republic of Nigeria. The life of this suit
cannot be sustained if, for any reason, President Muhammadu Buhari
cases to be in office, this suit will automatically abate since it
cannot be sustained by any other President, his personal name
haven’t been attached.

“This cannot be the position of the law since governance is a
continuum and does not terminate because the tenure of office of a
particular officeholder has elapsed.

“The proper defendant in this case, on the alternative, should
have been the Attorney General of the Federation, and the defendant
on record (Buhari) as a nominal party. Or, in the alternative, the
President, the Federal Republic of Nigeria,” Justice Ojukwu
said.