Report from Nigeria: Standing Justice on Shaky Jurisdiction

Introduction (Ambivalent History, Structure and Opinions)

Depending on the analytical standpoint one takes, the Nigerian Supreme Court is either eight1 years this 2007 or, it is 44.2 Otherwise, it is either 933 or, it is 144.4

And, as with her age, this remarkable lady has not been quite forthcoming regarding her size, her shape or her convictions. In her name-statute, she is composed of a maximum of 16 members;5 yet in the controlling constitution, her maximum size is placed at 22 justices.6 Although she has statutory appellate jurisdiction from even the LPDC,7 the constitution restricts her girth only within appeals from the Court of Appeal.8 As to her convictions, perhaps, it is enough to say that if a painter were to change directions according to hers, the picture that should form might be that of irregular zigzags on the page.9

On her age, though chivalry or space might discourage investigations, for her convictions, nothing should stand in the way of an assessment. From a review of the court’s judicial and extrajudicial decisions in the past half-year, two things suggest themselves. In relation to the recent wave of removals from statutorily protected office, the view of the Supreme Court of Nigeria (SCN) has been consistent: the political actors must strictly follow the governing rules. But, regarding the character of this will, the court is not afraid to look a bit hypocritical. Breach of the rules must have to be reversed, but by breach of rules, if necessary!

In what follows, the report had hoped to examine the antinomy through three cases. Selected from each of the three major regions of the country, two are decisions of the SCN.10 The third is from the Court of Appeal, which in hierarchy is the court immediately next in rank below the country’s top court. It emphasizes the reach of the SCN even when not acting in facie curiae.11 Space constraints must remand this hope to an essay of article length. For the present, we must rest satisfied with only an analysis of Governor Ladoja’s Case, the most important of the three regarding the work of the court at this time.

The Ladoja Case

Governor Ladoja’s Case12 is by far the most significant SCN decision this report period. Spanning 227 pages of the law reports, the length of the judgment should ordinarily cause irritation to any busy practitioner. On the contrary, however, Tobi, JSC’s conversational style is a most agreeable entrée to the rather complicated issues. The seven justices rake up legal and extralegal questions and the judgment marks the first time the SCN has decided on the extent and scope of powers available to the legislature for the removal of a sitting chief executive. The appeal gives an insight to the, sometimes suppressed, tensions between justices when they have to differ from each other; and, in this instance, pits in different camps, the two currently leading lights in the formulation of the court’s judicial ideology.13

The Oyo State House of Assembly (SHA) consists of 32 members. A dispute led to two factions. The 1st Respondent, Speaker Adeleke, led the minority of 14, while the 1st Appellant, Hon. Inakoyi, headed the 18-member majority.

By section 188 of the 1999 Constitution, the SHA could, by certain special majorities,14 initiate the impeachment and removal of the State Governor from office. But in sub-sections (2) to (9), that section specifies pre-conditional steps to validate such an action. On 13/12/2005, the Inakoju-18 initiated the process. But they did this without involving the Speaker Adeleke-14. They depended on subsection (10) of section 188, which ousted the jurisdiction of any court to question the proceedings.

The Speaker and his deputy jointly with the Oyo SHA filed an originating summons to prevent the completion of the process of removal. As defendants, the Inakoju-18 were served the originating processes, which included the summons, the supporting affidavit and the exhibited documents. They responded almost immediately with a Notice of Preliminary Objection, which relied on the ouster clause. The defendants contended that the impeachment process was a political question and, consequently, not justiciable.

Two principal issues arose from the facts: first, did the Inakoyi-18 satisfy the pre-impeachment requirements? Secondly, having regard to the ouster clause, was it constitutionally open to the courts to judicially review their conduct? Not having filed a counter affidavit, the defendants had effectively placed the first issue out of immediate contention. By law, they would be taken to have admitted the facts presented by the plaintiffs.

Ige, J., of the Oyo State High Court fixed hearing for 28/12/2005, only five days after the plaintiffs filed the suit. After the hearing, he, the same day, upheld the objection and dismissed the suit. Except for this dismissal on law, the defendants would still have had three more days to enter an appearance and 25 days to file a defence on the facts by way of a counter-affidavit. At the Court of Appeal, two questions became most significant: 1. Whether the ouster clause could prevent judicial review even when the pre-conditional steps for action had been ignored? 2. In case the ouster could not so apply, whether the Court of Appeal should send the case back to the State High Court for hearing on the merits; or, whether it could itself proceed and decide the merits of the substantive suit?

On 1/11/2006, the Court of Appeal returned a negative answer to 1. In that court’s opinion, the ouster provision in section 188(10) must be read subject to the mandatory requirements of section 188(2)-(9).15 And because of the perceived delay and injustice that would probably result if the case were sent back for hearing on the merits, the Court of Appeal relied on its general powers on appeals16 to choose the latter option in answer to 2.

It was in this state of facts that the Inakoju-18 appealed to the SCN. Although a half-hearted argument still issued, that the courts had no jurisdiction to question removals by legislative impeachments, the real contest before that court was on whether it did not amount to a breach of the Appellants’ right to a fair hearing when, without sending the substantive case back to the High Court, the Court of Appeal peremptorily determined it in favour of the respondents?

In dealing with this complaint, the SCN seemed more concerned with the feelings of outrage expressed by almost all right-thinking Nigerians at the arrogance and impunity of the Appellants. The Appellants are widely perceived to have acted under the authority and design of the country’s ruling coalition in the quest to retain power at all costs in the April 2007 elections. This consideration seemed to have overshadowed what otherwise might have been thought the natural response of the SCN to the facts of this appeal.

Gradually, there has been untold erosion to fair hearing guarantees of the constitution. In Ladoja’s Case, a new genre has been developed apparently to deal with the particularly opprobrious appellants in the present case. After the loss of a ‘demurrer’, the objector on jurisdiction is always permitted to contest the factual merits of the case. But in this instance, the SCN seems to have squeezed the rules. The right to be heard on the facts after a demurring loss may now be withdrawn from a litigant even when his only ‘fault’ is the filing of motions permitted by the rules; or his failure to file counter-affidavits and processes for which times fixed by the rules are yet to expire.

Although it only delivered reasons for the judgment on 12/1/2007, the court had heard and determined the appeal the same day on 7/12/2006. It is difficult to see how, in that time, it could have read and digested the 250 Nigerian and foreign decided cases the parties had made available to it.17 As at that 7/12/2006, therefore, could anybody say that the decision represented the court’s judgment? If the argument is that the reasons have now been supplied, shall we not thereby be overlooking the problem of integrity of the judgment? Has it not been subverted by the inference that the reasons merely worked towards a pre-determined result which later reading of the authorities cited had no chance of changing?

The SCN might have achieved the same laudable objective without, in the process, disfiguring the rules. It should not have been impossible to order parties to revert to the status quo before the purported impeachment, especially since another High Court had so ordered. With the Governor now reinstated, the SCN could then order accelerated hearing on the merits at the court of first instance. The policy against impunity will thus be applied without losing in the process the principle of fair hearing.

Conclusions and Restoring Lost Balance

It appears that two lights have been created to rule the Nigerian Supreme Court: the greater light to rule the day, and the lesser to rule the night.18 For us, the metaphor of the sun is when the SCN insists on following the law even when this procedure results in less than popular outcomes. It applies the rule of the moon, the lesser light, when the darkness of some politicians drives it to decisions that are popular and, perhaps, just; but by means, which breach the law.

It is difficult not to see the rationale behind the court’s need to ensure that the rascally removals, which had gained political currency, should not be allowed to stand. But in doing so, it is equally important to call attention to the awesome reasoning in Oguntade, JSC’s dissent. A knee-jerk reaction in reversing one instance of injustice may satisfy the emotions of the moment. But when this involves disregard of rules of law designed for the long-term, the cost-benefit implications do not seem worth the popular acclaim. There is too much damage to the stability, which the legal system gains from predictability.

A perceptive observer might well find a strange sight at Abuja. For with her left hand, the blindfolded female effigy in front of the Supreme Court building clutches a scale. But, ambivalently, with her right hand, she brandishes a sword. She closes her eyes; but leaves her ears wide open. Sometimes, blind to strict law, she, apparently, is always listening to noisy ‘justice’.

1. Based on current constitutional text, by ss. 230 and 320 of the Schedule to the Const. of the Fed. Republic of Nigeria (Promulgation) Decree No. 24 of 1999, the present Supreme Court of Nigeria [SCN] was established on 29/5/1999. She is, however, somewhat precocious. She has inherited the acquired consciousness, traditions and brains of her forebears under the transitional and saving provisions esp. in s. 316.2. By ontology, the Supreme Court of Nigeria only became supreme when, by s. 120 of the 1963 Constitution, it was established as a final court and appeals lay nowhere else. Under the 1960 Independence Const., appeals still lay to Her Majesty in Council [effectively, delegated to the Judicial Committee of the Privy Council in England].

3. By territory, the SCN first had national reach under s. 3 of the Supreme Court Ordinance, 1914. See, “Supplement to the Nigeria Gazette No. 66 of 27/8/1914.

4. By nomenclature, 1863 was the first time a court of that name was established in the territory now known as Nigeria. After the cession of Lagos in August of 1861, formal English style statutes started to be enacted in 1862. By the Supreme Court Ordinance Nos. 11 and 13 of 1863, the colonialists established the Supreme Court of the Settlement of Lagos. It had such jurisdiction as we may now analogize to the Fed. Capital Territory High Court. But it was unique in that it was, sitting as the ‘Full Court’, also a court of appeal over its own decisions.

5. Supreme Court Act, (Ordinance No. 12) 1960 as variously amended to cap. 424, LFN, 1990. Whatever else you might venture, if you require reliable information on the history and current statutes of the SCN, the court’s official web page is probably the last place you want to go!

6. S. 230(2) of the 1999 Const. of the Fed. Rep. of Nigeria. It is fair to note that an attempt was made to revise the law in line with the const.: s. 3(1) of the Supreme Court Act, cap. S15, LexisNexis Butterworths LFN, vol. 14, 2004. But that noble attempt at an update has been stumped by an ostensible lack of legislative warrant for the 2004 revision: Plateau State of Nigeria v. Att. Gen. of the Fedn. (2006) 3 NWLR (pt. 967) 346-442, per Kutigi, JSC (now, CJN), at 383A and per Tobi, JSC, at 424B.

7. Okike v. LPDC (2005) 128 LRCN 1561, esp. per Uwais, CJN at 1588U.

8. While s. 232(2) gives the Nat. Ass. power to confer additional original jurisdiction on the SCN, s. 233(1) of the 1999 Const. allows to the court appellate jurisdiction from only one tribunal, to wit, the Court of Appeal. By the maxim, expressio unius est exclusio alterius, the Nat. Ass. would, apparently, lack power to confer additional appellate jurisdiction on the SCN.

9. One recent and depressing example is Dada v. Dosunmu [2006] 9 SC 1, esp. per Onnoghen, JSC, at 7. The SCN has repeatedly held that even without filing a separate process to that effect, a notice of preliminary objection is valid when incorporated in the Respondent’s Brief: Oforkire v. Maduike [2003] 1 SC (pt. III) 74 at 80, line 24. Relying on, but ostensibly without reading its former decision that reiterated the same stand [Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285 at 296 [and 297], per Obaseki, JSC], the SCN now maintains the contrary in Dada.

10. In The Gov. of Kwara State v. Ojibara and 6 ors. [2006] 11-12 SCNJ 140-156, Oguntade, JSC, had led the SCN to accept the Court of Appeal’s [CA] restoration to office of the impeached members of the Kwara State Independent Electoral Commission. This was, on 15/12/2006, the politic thing to do in view of the rash of unguarded removals of statutorily protected office-holders in the country. Unfortunately, however, both the CA as well as the JSC had elided the fact that it was not for the un-elected judiciary to substitute its view of what is a ‘misconduct’ for those accepted by two-thirds of the legislature in conjunction with the executive arm of government. It should also have been interesting to analyze how in order to reach this populist decision, the SCN had ignored the content of the relevant Governor’s address but dwelt on the superfluous reasons the legislature had proffered when by a two-thirds majority, it supported the Governor’s reasoning for impeaching those officers. This appeal originated from the North of Nigeria. The other SCN decision is discussed in the text as Ladoja’s Case (infra) and is from the West of Nigeria.

11. Hon. Mike Balonwu and 5 ors. v. Mr. Peter Obi (Governor, Anambra State) and anor. [Unreported Appeal No. CA/E/3/2007 of 9/2/2007) is a decision of the Court of Appeal and originated from the East of Nigeria. In view of her decision in Ladoja (infra), the SCN outcome in this brazen breach of the two-thirds majority requirement must be clear to the Appellants. It is thus unlikely to reach the, or be heard at, the SCN as the federal government had not in this case cynically sustained the impostor in office even after the court had declared void the impeachment of the rightful governor. Discussion of this case might have demonstrated the extrajudicial reach of the court through its leader, the Chief Justice of Nigeria [CJN]. By s. 292(1)(a)(ii) of the 1999 Const., C.J. Okoli, CJ, could only be removed from office by the Governor, acting on an address supported by two-thirds majority of the Anambra SHA. Clearly, he was either grossly negligent or complicit in the scandalously deficient and unconstitutional processes leading to the removal of Governor Obi from office. It was not likely that the faction of the SHA, which he had aided would add their numbers to make the two-thirds requisite for his removal. Dame Virgy Etiaba, the Dep. Gov. whose accession was enabled by the Chief Judge’s collusion could similarly be expected, as new governor, not to cooperate in his impeachment and removal. How then could the NJC stop this clearly out-of-control CJ? On 20/12/2006, at the eve of the decision in the suit the removed gov. had brought to reverse the removal, the CJ, acting within his undoubted powers transferred the case to another judge. The trial judge, Nri-Ezedi, J., nevertheless, delivered the judgment on 28/12/2006 and declared the impeachment and removal of the state governor as unconstitutional, null and void. This led to this appeal by Speaker Balonwu and some of his associates. Belgore, CJN, came out on national television to say that the NJC had suspended the CJ and that he thus no longer had powers to exercise in that office. For all intents and purposes, this indefinite ‘suspension’ meant that Okoli, CJ, had been ‘removed’ from his office. It was necessary to stop his wild excesses. But in stopping him, the CJN seemed willing to ignore the very constitution he was bent on protecting. In disregarding this issue in the Balonwu appeal, Nri-Ezedi’s decision after the transfer order was nevertheless held valid [see p. 18 of the signed computer-print of the Court of Appeal decision]. The impact of the CJN’s disciplinary powers through the National Judicial Council [NJC] surely cannot be dismissed as it relates to the ‘chilling effect’ this must have on the independence of opinion of judges in Nigeria, both federal and state. And with more space, this might be a useful line of enquiry concerning the impact and spread of the Supreme Court’s power and top-court jurisdiction.

12. Hon. Muyiwa Inakoju and 17 ors. v. Hon. A. A. Adeleke (Speaker) and 3 ors. (2007) 143 LRCN 1-227. Decided on 7/12/2006 but with reasons for the judgment delivered on 12/1/2007, this first report of the decision arrived Enugu only late in the afternoon of 8/3/2007.

13. Of the full panel of 7 that heard the appeal, these two took more than half of the space devoted to the report. Niki Tobi, JSC, wrote the leading judgment in 72 pages. And, in another 42, Adesola Oguntade, JSC, dissented. But in so doing, His lordship could not resist the self-referring swipe [at p. 193K] actually directed at the rather lengthy lead judgment: “important matters…are lost in needless verbiage.” But this suave expression of sophisticated criticism may be contrasted with the shocking disrespect reflected in the interview Belgore, ex-CJN, had granted The Guardian on Sunday. That newspaper published it on 28/1/2007, eleven days after his lordship’s retirement from the court. At pp. 20-22, esp. at p. 21, the ex-CJN had responded to a question as to the suitability of academics for direct appointment to the highest court of the land. Rejecting such an absurd proposal, the Hon. Alfa Belgore, referred to such unsuitable academics as Prof. Taslim Elias, ex-CJN and ex-President of the ICJ, and those who would write 70-page judgments for otherwise simple disputes. Prof. Niki Tobi is the only such academic in the current body of 16 justices, but he rose from the High Court, through the Court of Appeal, before arriving at the Supreme Court. For a judge who skipped details of any university degrees in a 70-year biography, it seems difficult to ignore, here, the effects of some sort of intellectual complex. See, S.M.A. Belgore, GCON, CJN, “Valedictory Speech” (2007) 351 All FWLR 3-11, esp. at 5.

14. A third of all the members can initiate the process by detailing grounds of gross misconduct against the Governor or Dep. Governor and presenting these to the Speaker. But to impeach the relevant officer, two-thirds will have to approve trial by a committee to be formed by the State Chief Judge. Removal cannot occur even after this impeachment unless the CJ’s 7-member panel affirms the allegations and, again, at least two-thirds of all members acquiesce.

15. Hon. A.A. Adeleke and 2 ors. v. Oyo State House of Assembly and 18 ors. [2006] 6 JNSC 547-629.

16. Court of Appeal Act, 1976, s. 16.

17. (2007) 143 LRCN 44-52. Although the majority dismissed the appeal, they could not give their reasons until 12/1/2007. There is no apparent warrant for this either in the Supreme Court Rules, 1985 or in the Supreme Court Act, 1960, cap. 424, LFN, 1990. Although supported by practice, the 1999 Const. when read along with the court’s Act and Rules, seem only to authorize reasons embodied in the judgment delivered at the hearing or on a date it is reserved for delivery. The official report does not, for 7/12/2006, even record the decisions of 5 of the 7 JJ.SC. And, of the two reported, G.A. Oguntade, JSC, was “unable to express a view on the judgment without first checking the judicial authorities cited and fully digesting the law on the matter”: Inakoja v. Adeleke [2006] 12 SC 1-2 at 1.

18. Genesis 1: 16.

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