The Court of appeal today nullified the Election of Senator Nkechi Nworgu. in a three hours ruling the court held among others that Senator Nkechi nworgu unlawfully occupied the senatorial seat of Abia Central people. Senator Nkechi who hails from osisioma, registered and voted at Osisioma cannot reprensent Abia central at the Senate. The court threw PDP off balance when it further held that PDP did not sponsor any candidate as far as Abia Central Senatorial April 2011 Election was concerned. the question now is who takes the seat? ofcourse Emeka Atuma cannot take the seat by virtue of the Electoral Act 2010 since he did not contest the General Election. INEC has no other option than to issue certificate of return to Barr. K.C Ugbaja who scored the second highest votes in April Abia central Senatorial Election.
SENATOR NKECHI NWORGU LOOSES SEAT
Tuesday, May 15, 2012
Section 285(7) of theNigerian constitution a political cum judicial constitutional ambush and Evil
Following several recent judgments of the highly respected Supreme Court of Nigeria on the sanctity and inflexibility of the provisions of Section 285(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999, as amended,Sidney Onyemere an election petition Appeallant has suffered great judicial injustice; his ordeal at the hand of the ruling party election riggers was nothing compared to what he suffered in the hands of the Nigerian courts who hid under section 285(7) of the constitution to perpetuate great injustice and dancing the tune of the ruling party, what a shame. many Election Tribunals sitting on retrial of election petitions hurriedly struck out (indeed are striking out) those petitions, even where it was the Supreme Court that gave such retrial orders.
The first worrisome development here is that the orders of the Supreme Court that such matters be re-heard on their merits have been rendered null and void by those tribunals. The pertinent question is: are the tribunals to blame for these developments or the Supreme Court itself? The second question is: has the Supreme Court, by earlier ordering for re-hearing on the merits of the affected petitions not totally overruled itself by insisting in subsequent decisions that retrial tribunals have no jurisdiction to entertain those petitions again because of Section 285(6) – which stipulates the 180 days’ limitation period?
With due respect, the Supreme Court has been unduly tenacious and compact on this issue in its later decisions. The apex court, as the conscience of the nation, ought, with utmost respect, to have been proactive and, therefore, have strengthened the pillars of democracy in Nigeria by qualifying the applicability of Section 285(6) and (7) of the Constitution. By failing to do so, the Supreme Court has, with respect, willingly surrendered its supervisory powers to the whims and caprice of election tribunals and the Court of Appeal. That is defeatist of the doctrine of hierarchy of courts established by the constitution itself, which hierarchy has positioned the Supreme Court as the barking and biting watchdog of all.
The truism now is that election tribunals and the Court of Appeal sitting on appeals have indirectly been given a carte blanche or avante garde to deal with election petitions any how they deem fit, without recourse to, or respect for, judicial precedents laid down even by the Supreme Court itself! It is now possible for an election tribunal sitting, for instance over the Governorship Election dispute in State A to extend its jurisdiction to State B and order the removal of the Governor of State B in so far as it does so after 180 days!
Over the years, at least in years within living memory, the Supreme Court of Nigeria has, in spite of extant stultifying constitutional cum statutory limitations, used its extraordinary supervisory and whipping jurisdiction admirably to unlock national gridlocks, thereby strengthening our faltering democracy. A few examples here will suffice.
Before 2007, the only known judicial authority on impeachment of elected officials was Abaribe vs. The Speaker, Abia State House of Assembly (2000) FWLR (Pt. 9) 1558, wherein the Court of Appeal strictly applied the ouster clause in Section 188(10) of the 1999 Constitution, by holding that no matter how wrong any impeachment process was, the ouster clause in that subsection completely barred courts of law from prying into such unlawful impeachments. The full court of the Supreme Court of Nigeria, correctly gauging the mood of the nation, which was against allowing the country to slide into the arms of centrifugal dictator, for the first time, in Inakoju vs. Adeleke (2007) All FWLR (Pt. 353) 3, ruled proactively that an unconstitutional impeachment process would be voided in spite of the thickly-worded ouster clause in Section 188(10) of the Constitution. Notable pronouncements of some of the Justices will be quoted here. Tobi, J.S.C., who delivered the lead judgment, held on pages 93-94 thus:
“Ouster clauses are generally regarded as antithesis to democracy as the judicial system regards them as unusual and unfriendly. When ouster clauses are provided in statutes, the courts invoke section 6 as barometer to police their constitutionality or constitutionalism.”
His Lordship then analysed the facts of the case and concluded on page 123 thus:
“The legislature is the custodian of a country’s Constitution the same way that the executive is the custodian of the policy of government and its execution, and also in the same way that the judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused.… And so, when the legislature, the custodian is responsible for the desecration and abuse of the provisions of the constitution in terms of patent violation and breach, society and its people are not totally helpless as the Judiciary, in the performance of its judicial functions under Section 6 of the Constitution, is alive to check acts of violation, breach of indiscretions on the part of the legislature. That is what I have done in this judgment.”
If the Legislature, which is not as ‘learned’ as the Judiciary was, so censured by the Supreme Court, in spite the ouster clause in section 188(10) of the Constitution, one wonders why the restrictive provisions in Section 285(6), (7) and (8) of the Constitution would be applied very conservatively by the Supreme Court, thereby letting loose willing election tribunals to perpetuate injustice against the masses of Nigerians who may not have voted in the beneficiaries of this strict judicial interpretation.
It is yet important to read views of other Justices on that panel on why the ouster clause in Section 188(10) was rendered inoperative in this case. His Lordship, Kutigi, J.S.C. (as he then was), held on page 134 tersely thus:
“And a proper reading of the whole section will reveal that the ouster clause in subsection (10) can only be properly resorted to and invoked after due compliance with subsections (1)-(9) that preceded it…. Failure to comply with any of the provisions of subsections (1)-(9) will mean that the ouster clause of subsection (10) cannot be invoked in favour of the House of Assembly.”
Musdapher, J.S.C., as he then was, who also concurred, held more forcefully on page 145 thus:
Section 188(10) of the Constitution cannot apply to oust the jurisdiction of the courts in a situation in which the Assembly acted in breach of fundamental provisions… of the Constitution. Where there is any breach of such provisions, the courts will have the jurisdiction to intervene. Section 188(10) does not empower the Assembly to do what it likes regardless of other provisions of the Constitution.
What a pronouncement! This dynamism, it is respectfully submitted, ought to have been brought to bear on the various decisions touching on Section 285(6) and (7) of the Constitution in the current political dispensation.
The Supreme Court repeated this judicial feat in the case of Dapianlong vs. Dariye (No. 2) (2007) All FWLR (Pt. 373) 1, where it voided the impeachment of Governor Joshua Dariye of Plateau State, in spite of the constitutional embargo placed on courts’ jurisdiction by Section 188(10) of the Constitution. Onnoghen, J.S.C., who delivered the lead judgment, held in unmistaken terms on page 131 as follows:
“It is true that Section 188(10) of the 1999 Constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirements in Section 188 needed for the impeachment as the courts have jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not.”
As stated above, the ouster clause in Section 188(10) was more tightly knitted than the limitation words of Section 285(6) and (7) of the Constitution; yet the Supreme Court, in a bid to do substantial justice and also effectively police the powers of the Legislature, lifted the jurisdictional veil and voided the two unconstitutional impeachments in Oyo and Plateau states, respectively. One wonders why the Supreme Court has persisted in refusing to intervene in respect to section 285(6) and (7) of the Constitution – when the Judiciary , if compared with the Legislature that the Supreme Court whipped into line, are supposed to know better.
It is respectfully submitted that this is not the first time the Supreme Court will be called upon to rule on the legality or constitutionality of actions that are otherwise time-barred. For instance, even though section 2(a) of the various Public Officers (Protection) Acts/Laws that have dotted our statute books since pre-independence times have always placed three-month limitation periods for the legality of actions taken by public officers to be challenged in courts of law, the Supreme Court, in a bid to stem abuse of public powers, has always held that for such limitation period to be utilised to oust the jurisdiction of the courts, the public officers seeking to take cover under the limitation periods must have acted within constitutional cum lawful limits. A few of such reported decisions will be cited here.
In Ibrahim vs. Judicial Service Committee, Kaduna State (1997-1998) 4 All NLR 302 at 318-319, Iguh, J.S.C., delivering the lead judgment of the Supreme Court, held in unequivocal terms as follows:
“It can therefore be said that Section 2(a) of the Public Officers (Protection) Law, 1963 gives full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of, he was acting outside the colour of his office or outside his statutory constitutional duty.”
See, also, the recent decision of the Supreme Court in Hassan vs. Aliyu (2010) All FWLR (Pt. 539) 1007 at 1036-1037.
Indeed, the Supreme Court of Nigeria has always acted as the harbinger of the hallowed maxim ubi jus ibi remedium – meaning that where there is a right, there is a remedy. Thus, in the case of Saleh vs. Monguno (2006) All FWLR (Pt. 332) 1411, instead of commencing his action by a writ of summons or an originating summons, the plaintiff commenced same by a motion on notice. Objection was taken that this was not one of the known means of commencing an action in the High Court. The Supreme Court, while acknowledging this otherwise fundamental flaw, still upheld the suit in the spirit of substantial justice or providing a remedy where there existed a wrong!
All these bold attempts above are aimed at inviting the Supreme Court to save Nigeria’s tottering democracy. Our apex Court is the armour bearer of our salvation from the dark abyss of political and electoral fraud. It cannot shirk or shrink from this responsibility. It must not do so!
The interpretation by the Supreme Court of Section 285(6) and (7) of the Constitution has, however, gone very close to dimming the hopes of many Nigerians that the era of impunity and wantonness in the political and electoral process is very nigh to be torpedoed. The Supreme Court of Nigeria must rise to the occasion, by either overruling itself or holding differently on the issue of 180 days, especially on the matters it specifically ordered retrial. It is unimaginable that the apex Court was not aware of the 180 days’ provision in the Constitution when it made those retrial orders!
