Monday, June 18, 2007

Was Supreme Court Wrong?

‘THE decision of the Supreme Court of Nigeria, the apex judicial body, delivered on Thursday, 14 June, 2007, extending the tenure of office of Mr. Peter Obi as governor of Anambra State is riddled with serious and fundamental constitutional error. It was a landmark judgement but one without constitutional jurisdiction,” Lagos lawyer, Chief Gani Fawehinmi, SAN, said yesterday.

Fawehinmi explained, in a press statement, that he unreservedly disagreed with the Supreme Court because by the provisions of the Constitution of Nigeria, 1999, “I believe that the highest court of the land has no jurisdiction on the matter”.

According to him, the Court of Appeal is the final court in matters relating to gubernatorial election as provided for in section 246(3) of the 1999 constitution.
The background facts, as provided by the senior advocate, are as follows:

“The decision of the Supreme Court arose from the governorship election that was contested in Anambra State in 2003. In that election, Dr. Chris Nwabueze Ngige of the Peoples Democratic Party (PDP) was declared the winner of that election by the Independent National Electoral Commission (INEC).
“Dr. Chris Nwabueze Ngige took the Oath of Office and Oath of Allegiance contained in the Seventh Schedule to the Constitution on 29th May, 2003.

“Mr. Peter Obi of the All Progressive Grand Alliance (APGA) challenged Ngige’s election in the Election Tribunal sitting at Awka, Anambra State.
“On Friday, 12th August, 2005, close to three (3) years after the election, Mr. Peter Obi won the election petition and Dr. Chris Nwabueze Ngige lost.

“However, Dr. Chris Nwabueze Ngige went on appeal to the Court of Appeal. There again, Mr. Peter Obi won on Wednesday, 15th March, 2006. And because the Court of Appeal is a final court in such matters as provided for in Section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999, that was the end of the matter. No further appeal could go to the Supreme Court of Nigeria. “Mr. Peter Obi took the Oath of Office and Oath of Allegiance on Friday, 17th March, 2006. “On Saturday, April 14, 2007, Anambra State Governorship Election was conducted by the Independent National Electoral Commission (INEC). Dr. Andy Ubah was declared the winner and on May 29, 2007, he took the Oath of Office and Oath of Allegiance under the Constitution. There were several petitions against the election of Dr. Andy Uba pending before the 2007 Election Tribunal in Awka”.

Asking whether the Supreme Court has the constitutional jurisdiction to determine the tenure of Obi, he stated: “The judicial institutions empowered by the Constitution of the Federal Republic of Nigeria, 1999 to determine whether the tenure of office of any person under the Constitution has expired or ceased are: (a) Election tribunals; and (b) The Court of Appeal if there is an appeal to that Court of Appeal from the Election Tribunals. “Under the 1999 Constitution, the decision of the Court of Appeal in that respect is final. The relevant constitutional provisions are Section 285(1) and 246(3).

“Section 285(1) provides:- “285. (1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether- (a) any person has been validly elected as a member of the National Assembly; (b) the term of office of any person under this Constitution has ceased; (c) the seat of a member of the Senate or a member of the House of Representatives has become vacant; and (d) a question or petition brought before the election tribunal has been properly or improperly brought.”

“Section 246(3) provides thus:- “246(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.” “I will start with Section 285. For emphasis, the pertinent subsection above is 285(1)(b) which provides as follows:- “285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, have original jurisdiction to hear and determine petitions as to whether - (b) the term of office of any person under this Constitution has ceased”

Sounds convincing to me, does it mean the Supreme Court was actually wrong? Let us wait to replies from other learned lawyers in Nigeria and of course the full judgment of the Supreme Court coming up in July this year.

1 comment:

twinstaiye said...

In a thought – provoking address he presented on Monday at the Benin branch of the Nigeria Bar Association (NBA) Law Week, Justice Uwaifo said if he had sat on the panel of judges, he would have presented a dissenting opinion.

“With due respect, if I had sat on the panel of the Supreme Court and seen the way of my learned brothers’ understanding of Mr. Obi’s case, I would have had no hesitation to express a dissenting opinion. I have decided to make my views known at this august forum because I consider the case to be of extreme national importance,” Justice Uwaifo said.

The retired Supreme Court Justice observed that if the apex court’s interpretation and reliance on section 251 were to be correct, it would undermine the exclusive original jurisdiction conferred on the Court of Appeal under section 239 and even that conferred on the Supreme Court under section 232 as it set out to do to sections 246 and 285.

Justice Uwaifo stated that the provisions of sections 251 cannot override sections 246 and 285, being special provisions made mainly for the prosecution and final resolution of certain election matters up to the Court of Appeal, adding that the window which the Supreme Court attempted to create for the Federal High Court jurisdiction to hear the matter did not exist.

“The orders made by the Supreme Court in the Peter Obi’s case did not demise from the judgment of the Court of Appeal sitting in its original jurisdiction. How then did the Supreme Court get itself involved in the Peter Obi’s cases,” Justice Uwaifo queried.
According to him, a court does not just go interpreting a provision of the constitution or the law in vaccum, but can only do so for a purpose, and within its jurisdictions and in relation to a claim before it, showing a cause of action.

Justice Uwaifo said: “It is not the character of the judiciary, a vital organ of government to spring surprises with relaxed ease for the ovation of the gullible. The Supreme Court is the engine of purifier of the Rule of Law. It musts consistently perform its solemn duty with deep commitment in line with the constitution and the laws for the edification of societal values” adding that the Supreme Court claimed jurisdiction of which the constitution denies it.

He said the tenure of office at any one time was meant for four years, and that the emphasis was not on the incumbent but the tenure of office of governor.
Justice Uwaifo pointed out the implications of the judgment among others, to include that Dr. Chris Ngige’s tenure was not recognized to have existed when in reality he was in office by default for three years, that just through one election. Anambra State would now be ruled for seven years contrary to four provided for in the constitution.

While saying that there was no basis for Peter Obi’s continued stay in office, the retired Justice of the Supreme Court said judicial intervention in Anambra would result in staggered election in that state, contrary to what would happen in other parts of the country.
He said if the Anambra case was to be applied to the Presidency it could create uncertainty in the international community, who he said, would be afraid to do business with Nigeria.

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