The Supreme Court on Friday affirmed the election of Malam Abdulazeez Yari of All Progressives Congress (APC) as governor of Zamfara.
Delivering the judgment, the Justice John Okoro-led panel of six justices held that the petition lacked substance.
“The grouse of the appellants in this issue, basically, is that there was over-voting and that because of that there was substantial non-compliance with the Electoral Act.
“To prove over-voting, the law is trite that the petitioner must tender the voters’ register.
“The court must also see the statement of result in the appropriate forms which would show the number of registered accredited voters and number of actual voters,’’ the court said.
Okoro said the appellant must also relate each of the documents to the specific area of the case in respect of which documents were tendered.
He added that the appellant ought to have shown that figures, representing over-voting, if removed, would result in victory for the petitioner.
“From the finding above, I agree with the court below that the appellants failed woefully to prove over-voting in accordance with the principles laid down by law.
“The reliance on the evidence of one of the witnesses through a document he did not make has not made any difference.
“There is no doubt that a petitioner is entitled to contend that an election or return in an election be invalidated by reason of corrupt practice or non-compliance,’’ he said.
Okoro, however, said that for a petitioner to succeed on the ground of corruption, he must prove that corrupt practices or non-compliance actually took place.
He said the appellant must also prove that the alleged infraction substantially affected the result of the election.
“There is need for a petitioner who alleges over-voting to lead concrete evidence to show that there was indeed over-voting and that it benefitted the winner of the contest.
“Without doubt, over-voting in an election can be in favour of the appellant, the respondent or other contestants who participated and lost at the election but are not parties to the petition.
“Therefore, the onus is on the petitioner to show that the over-voting was in favour of the respondent and that it was as a result of the over-voting that Yari won the election,’’ he said.
Okoro said: “in this case, the appellants alleged that there was over-voting by 86,045 votes.
“Assuming that the appellants were able to prove over-voting by that figure, a reduction of that number from the score of the first respondent (Yari) put at 716,964 votes will not make any difference.
“It means that the appellant would attract a total of 201,938 votes which would not have changed the position of the result of the election and that Yari would still be left with 630,919 votes.
“Having resolved all the issues adopted for determination of this appeal against the appellants, it is crystal clear that this appeal is devoid of any scintilla of merit and is accordingly dismissed.
“I uphold the decision of the Court of Appeal delivered on Nov. 12, 2015, which upheld the judgment of the trial tribunal.
“I therefore, award costs of N100, 000 against the appellants in favour of the first and second respondents,’’ Okoro ruled.
Alhaji Mahmud Shinkafi, the candidate of Peoples Democratic Party (PDP) in the election, had approached the apex court to challenge the decision of the Appeal Court in Sokoto that upheld Yari’s victory.
The petition was anchored on the grounds that there was want of the 21 days statutory notice given to the Independent National Electoral Commission (INEC) before the conduct of the APC governorship primary election.
Abia State Governor Okezie Ikpeazu and his party, the Peoples Democratic Party (PDP), have filed a notice of appeal challenging the Appeal Court’s decision sacking him from office.
The court’s panel, led by Justice Oyebisi had declared Alex Otti of the All Progressives Grand Alliance (APGA) the winner of the election of April 11, last year.
It held that Otti scored the highest valid votes of 164,332 against 114,444, scored by Ikpeazu.
The court held that there were cases of over-voting and allocation of votes in favour of the PDP candidate in three Local Government Areas: Isi-Alangwa, Osisioma and Obingwa and voided elections in the three councils.
In a notice of appeal filed yesterday at the Supreme Court, Ikpeazu and PDP are praying the court to, among others, set aside the Appeal Court’s judgment on the grounds that neither Otti nor his party had credible and cogent evidence to support their petition challenging Ikpeazu’s victory.
They also wrote the Chairman of the Independent National Electoral Commission (INEC), Professor Mahmood Yakubu, asking him to respect the constitution.
In the letter written on their behalf by Wole Olanipekun (SAN), they contended that Ikpeazu remained the governor until he had exhausted his right of appeal to the Supreme Court.
The governor and his party said they were dissatisfied with the judgment and instructed their lawyer to appeal against it at the Supreme Court.
PDP said Ikpeazu had a constitutional right to appeal against the judgment at the Supreme Court, under and by virtue of Section 233(2) (e) (iv) of the constitution (as amended).
Ikpeazu and his party added that would file a notice of appeal, because they were yet to access a certified true copy (CTC) of the judgment.
They raised three grounds, including: the Appeal Court was wrong to have declared “the 1st respondent (Otti) winner of the April 11 and 25, 2015 Abia State governorship election on the grounds that he scored the majority lawful votes cast at the election”.
They contended in the second ground that “the Court of Appeal erred in law when the Justices on the panel neglected to apply the provisions of sections 49, 52(2), 138(2) and 155 of the Electoral Act, 2010 (as amended) but relied solely on Card Reader accreditation as the basis for holding that there was over-voting and therefore cancelled the election in Obingwa, Osisioma Ngwa and Isiala Ngwa LGAs in the April 11 and 25, 2015 Abia State Governorship election”.
The appellants noted that ”in instant case, where the 1st and 2nd respondents (Otti and APGA) sought nullification of votes from Obingwa, Osisioma Ngwa and Isiala Ngwa North LGAs of Abia State in relation to matters or events that took place at the polling units, they must produce evidence of eye witnesses who saw it on the days of elections as well as tender primary unit results of documentary evidence in relation to the questioned Local Government Areas.
“The Court of Appeal found as a fact (as did the tribunla) that the State Returning Officer had no powers to cancel results in Obingwa, Osisioma Ngwa and Isiala Ngwa North LGAs.
“By the findings (in Paragraph iii) above, the allegations of malpractice and non-compliance as basis of results by the Returning Officer needed to be proved. No proof was offered and the Court of Appeal did not refer to any.”
Their letter reads in part: ”Bearing in mind the fact that INEC itself is a party to the processing as, and would also be a party to the appeal which would definitely be filed on behalf of our client immediately on receipt of the judgment of the court of appeal, may we urge INEC to resist any invitation by anybody or from any quarter to do anything that would work contrary to the provisions of both the constitution and Electoral Act in respect of the res (subject) of the appeal, particularly the position of the governor of Abia State, which our client occupies.
“Also, under Section 143(2) of the Electoral Act, 2010 (as amended), our client has the statutory right to remain in office pending the expiration of the period within which an appeal shall be filed, assuming without conceding that he does not even want to lodge an appeal against the decision of the Court of Appeal. Upon filing his notice of appeal, our client is also constitutionally entitled to remain in office until the Supreme Court decides and pronounces on his appeal.
“That what is causing the delay against the filing of the notice and grounds of appeal against judgment is the failure of the court to avail both our client and our humble selves of a copy of its judgment, even as at the time of writing this letter, and despite demands.’’
Rivers State Governor, Nyesom Ezenwo Wike has described the nullification of his election as a temporary setback, saying that God’s will and the mandate of the people will prevail at the end of the day.
Addressing thousands of Rivers State people who thronged the Port Harcourt International Airport to receive him on Thursday, Governor Wike urged the people to remain peaceful as the state remains PDP despite the contrived situation at present.
He assured the people that his lawyers have already started the process of Appeal to the Supreme Court, noting that after the Supreme Court, the PDP will work with whatever judgment emanates from the apex court.
The governor said the PDP is ready for the National Assembly elections as ordered by the Appeal Court, but warned that the people will resist any attempt by the Federal Government to use soldiers and policemen to manipulate the elections.
He said: “I want to warn, let nobody attempt to do what happened in Bayelsa State here. Since they said they have annulled the elections, let them come and conduct fresh elections. Let nobody think that they can use soldiers and policemen to intimidate us. We will resist any such attempt. We have maintained our cool for a long time. Our calmness should not be mistaken as a sign of weakness “.
He said that Rivers people are peace loving, but they hate injustice and intimidation.
He advised all PDP members in the state to commence unit to unit and ward to ward campaigns for the National Assembly elections.
“We shall return all our National Assembly members as a way to disgrace those who think they will snatch the mandate of the people,” he said.
He said that the administration will continue to work for the people of the state and deliver good governance and projects to the people.
Wike was welcomed by the speaker of the Rivers State House of Assembly, members of the State Executive Council, former National Assembly members, PDP leaders, Local Government Caretaker Chairmen, women and youth groups.
The Supreme Court yesterday fixed February 5 for judgment in an appeal by Senate President Bukola Saraki, challenging his trial at the Code of Conduct Tribunal (CCT).
Saraki is on trial at the CCT on allegations of false declaration of assets.
At the resumed hearing, Saraki’s lawyer Mr Joseph Daudu (SAN) told the panel of seven Justices, led by the Chief Justice of Nigeria (CJN), Mahmud Mohammed, that they formulated six issues for determination.
He argued that the charge against Saraki could not stand in the face of the law because there was no substantive attorney-general of the federation (A-GF) when it was instituted.
The lawyer said as at the time Saraki was put on trial, there was no evidence that an A-GF delegated his power to institute criminal charge against him as required by the law.
Daudu also argued that the tribunal was not properly constituted as stipulated by law.
According to him, the law provided that the CCT shall only sit with a three-member panel.
He said the tribunal had only two members, including the chairman, Justice Danladi Umar, and could not form a quorum.
The lawyer further argued that by implication, if there was a disagreement, the chairman could impose his views on the other member.
But counsel to the Federal Government Mr Rotmi Jacobs (SAN) urged the court to dismiss the appeal for lacking in merit.
He said the CCT was properly constituted and had power to go ahead with two members.
Jacobs argued that two of the three members formed a quorum in compliance with the Interpretation Act.
THE Supreme Court has scheduled Thursday for hearing of the appeal by Senate President Bukola saraki.
The court’s decision to hear the appeal this week was contained in hearing notices sent to parties in the case, a copy of which The Nation sighted yesterday.
Saraki is, with the appeal, challenging the decision of the Code of Conduct Tribunal (CCT) to assume jurisdiction over the charge of false asset declaration brought against him by the Code of Conduct Bureau (CCB).
The Court of Appeal, in a split decision of two-to-one upheld the CCT’s jurisdiction to hear the charge, a decision Saraki appealed to the Supreme Court.
The apex court had on November 12 directed the CCT to suspend proceedings in the trial pending determination of the appeal.
A five-man bench of the court, led by Justice John Fabiyi, gave the directive for a halt in the proceedings before the CCT following an undertaking by respondents’ lawyer, Rotimi Jacobs (SAN), to the effect that since the court has granted accelerated hearing in the appeal, he will prevail on the CCT not to proceed with trial until the apex court pronounce on Saraki’s appeal.
It is, however, expected that a new head would be chosen for the panel hearing the appeal because Justice Fabiyi retired last Wednesday.
For ages, lawyers have been criticising the Supreme Court’s decisions. But, last week, Nigerian Bar Association (NBA) President Augustine Alegeh (SAN) apologised to the court after some lawyers criticised it for suspending Senate President Bukola Saraki’s trial at the Code of Conduct Tribunal. Some lawyers, including Prof Itse Sagay (SAN) and Femi Falana (SAN), criticised the Supreme Court for ignoring the provisions of the Administration of Criminal Justice Act of 2015, which outlawed stay of proceedings in criminal trial. Is the Supreme Court infallible? Is it wrong to criticise its decisions? JOSEPH JIBUEZE asks.
We are final not because we are infallible, rather we are infallible because we are final. – The late Justice Oputa
This memorable quote by the late Justice Chukwudifu Oputa speaks volume about the powers of the Supreme Court on which he served between 1984 and 1989. To analysts, the Supreme Court is not infallible, but when it errs its decision still remains final, except it reverses itself. But did it err in its November 12 ruling stopping Senate President Bukola Saraki’s trial for alleged false asset declaration at the Code of Conduct Tribunal (CCT)?
The ruling opened a floodgate of arguments on its propriety or otherwise. Senior Advocates have been trading words over the issue. Those critical of the ruling believe that it negates the provision of the Administration of Criminal Justice Act (ACJA) 2015. Those in support of the apex court argue that it did no wrong.
The criticism of Supreme Court decisions did not start today. But curiously last week at the valedictory session for Justice John Fabiyi, who gave the lead ruling that sparked the controversy, Nigerian Bar Association (NBA) President Augustine Alegeh (SAN) apologised for what he called the trenchant criticisms of the court’s decision on Saraki’s case.
His apology did not go down well with some lawyers, especially Prof Itse Sagay (SAN), Mr Femi Falana (SAN) and Mr Jiti Ogunye, who said he was not doing so on their behalf because they have good ground to criticise the verdict. In stopping the Saraki trial, Justice Fabiyi (rtd), who led a five-man panel, asked the CCT to “tarry awhile” and await its decision on the appeal.
“It is imperative to say that parties and the chairman of the CCT should tarry awhile,” Justice Fabiyi said. Other members of the panel concurred.
Saraki’s lawyer Joseph Daudu (SAN) had prayed the court to order a stay of proceedings at the CCT, but prosecution counsel Rotimi Jacobs (SAN) argued otherwise, contending that Saraki was only interested in frustrating his trial by filing multiple applications in courts.
Jacobs, however, said he was willing to prevail on the CCT to suspend Saraki’s trial until the conclusion of his appeal, if the Supreme Court would grant accelerated hearing in the case and fix a date for the hearing of the appeal.
Saraki had appealed an October 30 Court of Appeal judgment, which held that the CCT’s decision to assume jurisdiction in his trial on a 13-count charge of false assets declaration was right.
What the ACJA says
The Administration of Criminal Justice Act (ACJA) 2015 in Section 396 makes provision for day-to-day trial of criminal cases. This is to ensure that criminal cases are expeditiously dealt with in line with the provision of the Constitution.
Where day-to-day trial is impracticable after arraignment, parties shall only be entitled to five adjournments each. The interval between each adjournment shall not exceed fourteen days.
The section also provides that where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournments each, the interval between one adjournment to another shall not exceed seven days. The court may award costs in order to discourage frivolous adjournments.
The Act further states that a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge for the purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude same within a reasonable time. This provision is intended to address the problem of trial de novo.
By virtue of section 306, an application for stay of proceedings in respect of a criminal matter before a court shall not be entertained.
Supreme Court faulted
Following the Supreme Court directive that the proceedings be stayed at the CCT, some lawyers criticised the decision.
• Falana
Activist-lawyer Femi Falana (SAN) described the Supreme Court ruling as “controversial” and “erroneous”, saying it should not be allowed to stand because of its far-reaching implications and negative impact on the administration of criminal justice.
He urged the Supreme Court should take advantage of the substantive appeal in the Saraki’s case to review its position with a view to confirming the abolition of stay of proceedings by section 306 of the AJCA.
“It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizarre manner. Given the ouster clause contained in section 306 of the AJCA, the CCT ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki,” said Falana.
Eminent constitutional lawyer Prof Itsay Sagay, Chief Adegboyega Awomolo (SAN), first female SAN, Chief Folake Solanke, Kunle Ogunba (SAN) and activist-lawyer Jiti Ogunye, said the Supreme Court should have allowed the case to go on.
Sagay said: “The new Administration of Criminal Justice Act 2015 has completely eliminated any application or grant of stay of actions or proceedings in criminal trials; it prohibits it. So, what the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities.”
Awomolo said: “I would have preferred that the Supreme Court allowed the trial to go to conclusion because the law has provided that all preliminary objections shall be taken and decided together in the judgment of the court.”
Solanke said: “I am in agreement with Mr. Femi Falana. I am on the same page with Mr. Femi Falana,” she said.
Ogunba, was quoted as saying that the apex court should have allowed Saraki’s trial to proceed.
Ogunye said the order by the Supreme Court lacked legal justification.
In defence of the Supreme Court
Activist lawyer Chief Mike Ozekhome (SAN) said Section 306 of the ACJA applies only to the trial court, and not to appellate courts.
“It ought to be noted that the trial of Saraki which is currently before the CCT, is not before the Supreme Court of Nigeria. What is before the apex court is an appeal from the decision of the Court of Appeal in respect of the jurisdiction of the Code of Conduct Tribunal. From the plain wording of section 306, the ACJA does not apply to the Supreme Court of Nigeria, or any other appellate court for that matter, but to the CCT,” he stated.
But disagreeing with Ozekhome, President, Committee for the Defence of Human Rights, Malachy Ugwummadu, said no section of the ACJA contravenes any provision of the constitution.
“Is Ozekhome not aware that stay of proceedings is not provided for by the constitution but by the rules of courts which are inferior to the constitution and all Act of the National Assembly? Indeed, every law student is aware that a motion for stay of proceedings can only be filed in the Court of Appeal after it has been dismissed by a trial court.
“It is trite law that motion for stay of proceedings in the Court of Appeal is not ripe for hearing without exhibiting the ruling of the trial court. Since the filing of stay of proceedings has been prohibited in the trial court, it cannot be disputed that neither the Court of Appeal nor the Supreme Court can entertain same as a court of first instance.
“We therefore, urge the Supreme Court to discountenance the highly misconceived and irrelevant submissions of Chief Ozekhome as he has not succeeded in controverting the points of law well argued by Mr. Falana,” Ugwummadu said.
NBA President apologises
• Alegeh
Alegeh, speaking at Justice Fabiyi’s valedictory session, apologised on behalf of lawyers who criticised the apex court.
“We apologise on behalf of our colleagues who have been criticising this court in the media. We have written letters to the lawyers concerned to say it is unacceptable,” Alegeh said.
Reacting, Sagay, Falana and Ogunye said the apology was not for them as they had done nothing wrong to the Supreme Court.
Sagay said: “Definitely, I have not done anything for which to apologise.” To Falana, “There was no basis whatsoever for the apology.” Ogunye said: “The apology…is rather unfortunate.”
Is Supreme Court beyond
criticism?
The late Justice Chukwudifu Oputa, known as the Socrates of the Supreme Court, in the case of Adegoke Motors v Adesanya(1983) 3 NWLR (Pt 109) 250 @ 274-275, alluded to the finality of the apex court’s decisions.
He said: “We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings capable of erring. It will be short sighted arrogance not to accept this obvious truth.”
Analysts say the Supreme Court is not beyond criticism, as long as it is constructive. The fact that the Supreme Court has the power to reverse itself is an indication that it is not beyond mistakes.
According to them, such criticism is healthy and encourages the development of the law and can advance the law. Besides, they said such frank debate about the Supreme Court’s decisions can act as a check on our courts and promote intellectualism in the profession.
“It must be noted, and the impression must never be created out there that Supreme Court’s rulings, decisions and judgments should not and cannot be criticised.
“To insist on this will unwittingly compromise the prospect of legal advancement and creativity which is the only guarantee in the judicial process by which the judiciary can cope with the ever dynamic needs of the society.
“The very idea of approaching the Supreme Court or any other appellate court for that matter is not just a civilised act of protest but also criticism on the judgment appealed against,” Ugwummadu said.
Legal Adviser at Amnesty International, Kolawole Olaniyan, believes Falana and others have not breached any standard of professional ethics or committed contempt.
“It’s normal for lawyers and others to ask questions whether the Supreme Court’s decisions follow a legal pattern: that is, do the court’s decisions conform to legal precedent, ordinary norms of legal reasoning, and established constitutional and legal principles.
“Such frank debate about the Supreme Court’s decisions not only acts as a check on our courts, but also contributes to informed and vocal public scrutiny, which in turn can promote accessibility and effectiveness of the judiciary,” he said.
Criticism healthy, says SANs
A former NBA president Oluwarotimi Akeredolu (SAN) believes there is nothing wrong in criticising a Supreme Court judgment.
He said: “Critique and analysis of judgments of superior courts of record including the Supreme Court is normal and in fact must be encouraged. Our colleagues in the academia have only fallen shy of their responsibilities hence the wrong belief that you cannot critique a judgment.
“To critique a judgment is however different from criticising the court. I know that a critique of judgments including those of the Supreme Court will include pointing out what is right and wrong in the judgment against the background of the extant laws and decision of the court.
“It is not the court that should be criticised but the judgment that is to be critiqued and no other person or persons are better placed at this than Lawyers in academic or practicing. It is in the interest of the court to have its judgments critiqued as often as possible. Criticising the court for its judgment. NO. Pointing out it’s predilection from track record, a different kettle of fish.
Chief Emeka Ngigi (SAN) said what is wrong is “destructive criticism,” adding that the NBA should be at the forefront of pointing out errors.
“I doubt whether anybody is saying that judgments or decisions of Supreme Court or even the learned justices of that court should not be criticised. I doubt whether that is the thinking. I believe that what is forbidden is destructive criticism that tends to lower the estimation of the court and their lordships in the minds of right thinking members of the society.
“Once the criticism is constructive, it is welcome. It is allowed. No institution is above criticism but the catchword is ‘let it be constructive’. A lot of decisions delivered recently by the Supreme Court have made criticism inevitable.
“As for some of our colleagues who threaten others with committal proceedings because they criticised decisions of the apex court, I think they should have a rethink; committal proceedings is not the answer. The NBA should be in the forefront in organising seminars and colloquia to critique the decisions of the apex court from time to time,” Ngige said.
For George Oguntade (SAN), a polite criticism of a Supreme Court judgment is in order.
He said: “The Supreme Court has on several occasions recognised that they although are the final Court, they are not infallible. When mistakes are made as will sometimes happen, the solution is to await for an opportunity for a similar case to come up and ask them to depart from the previous decision. Alternatively, legislation may be enacted to reverse the effect of the decision.
“Having said this, there is absolutely nothing that stops or prohibits lawyers from criticizing the decisions of the Supreme Court as long as it is done in a civil and courteous manner. Orders 30 and 31 of the Rules of Professional Conduct for Legal Practitioners 2007 regulate the relationship between Lawyers and the Court.
“Because Lawyers are officers of the court, they are barred from any act or conduct that may inter alia, adversely affect the administration of justice. Intemperate, harsh and scurrilous criticisms of court judgments, to my mind will constitute an infraction of the Rules of Professional conduct. On the other hand civil and polite criticisms will not.”
A former Lagos Branch chairman of NBA, Mr Alex Muoka, said criticising a Supreme Court decision would appear to call into question the finality of the decision and “is not good for our legal system.”
He added: “I am of the humble opinon that a decision of the court as with any other decision or issue can be x-rayed and critiqued in an academic article or paper. Note that I have used the term ‘critiqued’ rather than ‘criticised’. There is an important difference between the two.
“The purpose of a critique is clearly to subject an issue or decision to analysis which can set the tone for future reconsideration if necessary. The language of a critique is carefully chosen so as not to ridicule or call the finality of the judgment into question…but to show (where appropriate) that a different result could have been achieved from a different appreciation of the case, or a more detailed consideration of all the facts, and all the pre – existing law…and perhaps from an extrapolation into where the law ought to be heading.
“Such a critique should be undertaken by someone who is unconnected with the dispute itself…and whose credentials as a worthy reviewer are such as cannot be called into question. The critique should be published in an appropriate peer review journal or other professional publication and not in the popular press – so that it is clearly understood that it’s object is to add to the store of knowledge and provoke future reconsideration…and not to question the rationale or validity of the decision,” said Muoka.
Constitutional lawyer Ike Ofuokwu said criticising a Supreme Court judgment “is tantamount to professional arrogance and rascality,” adding that Alegeh’s apology was not misplaced.
“This is particularly because in very recent times some very senior lawyers who are supposed to be the custodians of the time value tradition and ethics of the Bar have arrogated to themselves monopoly of wisdom and the power to play gods by walking out on the court or openly criticising the court whenever it seems the matter does not favour them or is not in conformity with their political inclination irrespective of how bad their cases are or how poorly prepared they are.
“However, the Justices of the Supreme Court or any court for that matter are not infallible hence by way of intellectual discourse their judgments whether right or wrong can be objectively analysed, evaluated and even publicly reviewed as this would go a long way to aid and widen our jurisprudence and even to assist in law reforms. But where this is done for selfish and personal reasons, it is unfortunate, shameful and an unprofessional conduct,” Ofuokwu said.
Interlocutory appeal (or interim appeal): in the law of civil procedure, an interlocutory appeal is an appeal of a ruling by a trial court that is made before all claims are resolved as to all parties. Dictionary.com (Online)
War is too important to be left to the generals. Politics is too important to be left to politicians. And law is too important to be left to lawyers and judges. A mélange of quotes from many sources
This past week, the Supreme Court of Justice of the Federation seating in Abuja made a ruling in which the honorable justices granted a stay of proceedings pending the determination of an interlocutory appeal by Bukola Saraki’s lawyers in the criminal action brought by the Federal Republic of Nigeria (FRN) against the Senate President in the Code of Conduct Tribunal, Abuja. By that act, it would seem that the Supreme Court has more or less killed the Administration of Criminal Justice Act of 2015 (ACJA) that was passed by the 11th session of the National Assembly and signed into law by the former president, Goodluck Jonathan, on May 13, 2015. This is because in at least two of its clauses, 306 and 396 respectively, ACJA had completely banned the invocation and use of interlocutory appeals and stay of proceedings to prolong criminal cases in the law courts of the land. Since the Justices of the Supreme Court cannot claim to be ignorant of ACJA and its explicit ouster of interlocutory appeals in criminal cases in Nigeria and since as a matter of fact, the provisions of ACJA have not been successfully challenged before the Supreme Court or indeed any other court in the country, the question arises as to whether or not the intent of the Supreme Court is to kill ACJA even before it begins to be implemented in our law courts.
My frank answer to this question is I do not know; I cannot read what’s in the collective mind of the learned justices of the highest court in the land. But having made that admission let me now declare as vigorously as I can that the Supreme Court cannot and will not kill ACJA. ACJA has come to stay in our country and it is far beyond the power of the Supreme Court to block the cleansing and modernizing role it has come to play in our criminal justice system. Another way of stating this is to declare that History and Justice and Rectitude are on the side of ACJA and history all over the world has proved again and again that no supreme court can in the end stand against the tide of history. Since I am neither a lawyer nor a Pentecostal prophet, what is the basis on which I am making these ringing declarations? This question requires an explanation.
In furtherance of that explanation, first a gloss of the word “Nigeriana” in the title of this piece which I intend to be a vigorous critique of that decision of the Supreme Court on the Saraki V FRN case. Here is the explanation: “Nigeriana” is a borrowing from Biology – or more specifically Botany – which implies that the thing or object indicated is native to Nigeria and no other country in the world. In this case, as strange as it may seem to anyone reading this piece, interlocutory appeals in criminal cases collectively constitute a legal procedure that is native to Nigeria and no other country on the planet. In other words, in every other country in the world, interlocutory appeals to prolong court cases apply exclusively to civil cases. Moreover, as the definition of this legalistic term demonstrates in the first of the two epigraphs to this piece, interlocutory appeals are, in nearly all the other countries in the world, intended to be “interim”, temporary. Only in Nigeria do they become so prolonged, so unbounded in the months, years and even decades in which they are perpetually invoked in the same case that they have more or less become temporally unlimited.
One more word of explanation: in virtually all instances, this uniquely Nigerian aberrant form of interlocutory appeals is available not to any Tom, Dick and Harry charged with criminal offences in Nigerian courts; they are a special privilege available only to politicians and public officeholders accused of looting vast, humungous sums of money from our national coffers. As a matter of fact petty criminals and underclass felons in Nigeria typically face terribly inhumane and unjust treatment in our law courts. When trials of this class of poverty stricken Nigerians take long – as they indeed quite often do – it is not because interlocutory appeals have been invoked on their behalf; it is quite simply because they are forced to languish in prison for months and years before their cases are brought for trial on account of the great backlog of cases awaiting trial in Nigerian courts.
Since I am not a lawyer but an academic whose professional field is literary and cultural studies, it is perhaps necessary for me at this point in the discussion to echo the words of the second epigraph to this piece: war is too important to be left to generals; politics is too important to be left to politicians; and law is too important to be left to lawyers and judges. Nonetheless, it so happens that I do indeed have a professional basis for daring to dabble in a discussion of this legalistic term, interlocutory appeals. From my training and background in cultural theory, I can explain that interlocutory is derived from interlocutor which itself is derived from the combination in Latin of two words, “inter” which means between and “loqui” which means to speak. From this, we get the meaning of the word interlocutor: a person who speaks between and among other speakers; a person who takes part in a conversation or dialogue. In other words, in the English language as much in its Latin roots, an interlocutor is only a participant in a dialogue in which, as a matter of fact he or she is never the major participant. This is why in its legal reformulation as interlocutory appeals it was never the intention for it to take over, dominate and endlessly prolong cases into which it is introduced by one of the parties. Also, this is why even as interim and provisional as it is meant to be, interlocutory appeals are rigorously restricted only to civil cases and never to criminal cases since, as everyone knows, it is perilous for victims in particular and for the society as a whole to delay or prolong the trial of criminals.
At this stage, let me now inform the reader why I have taken this long in this piece to establish my professional qualifications – such as they are – to engage in a decision of the Supreme Court whose ramifications have thrown even members of the legal professional into a raging controversy. Indeed, this controversy among the lawyers is so acrimonious, so fraught that nearly every member of the profession now speaks and writes with the fear of being indicted for contempt of the highest court in the land. One reason for this is the fact that with great bellicosity, Saraki’s lawyer in the case, Mr. J. B. Daudu, SAN, has threatened to have any lawyer that henceforth dares to criticize the ruling of the Supreme Court in the case prosecuted for contempt. And in a similar but perhaps more odious and ominous vein, for and on behalf of those who had already negatively criticized the Supreme Court before Mr. Daudu’s anathema, the President of the Nigerian Bar Association (NBA), Mr. Austin Aleghe, SAN, has tendered an unreserved apology to the Justices of the Supreme Court.
One consequence of these acts of intimidation by very senior and powerful members of the legal profession can be seen in the fact that only a handful of brave and hardy souls in the profession are speaking up forthrightly against the Supreme Court’s invalidation of the ban on interlocutory appeals and stays of proceedings in the Administration of Criminal Justice Act of 2015. I have not the slightest doubt that this was in fact the intended consequence of Saraki’s lead counsel, J.B. Daudu and the NBA President, Austin Aleghe in their presumed defence of the Supreme Court’s war on ACJA. But Daudu and Aleghe and others like them (e.g. Olisa Agbakoba) will not prevail in this struggle, especially outside the ranks of the membership of the NBA in particular and the legal profession in general. The credibility, the success of the war against the excesses and the impunity of corruption to which the new administration of Buhari has dedicated itself to the hearing of the country and the whole world rest fundamentally on the retention and implementation of the provisions of ACJA. And threats of prosecution for contempt of the highest court in the land will not silence those who fought for the enactment of ACJA.
Let us hope that the Supreme Court will somehow find a face-saving way to reverse itself on its ruling that interlocutory appeals are still valid judicial principles in criminal cases in our country, against the explicit provisions of ACJA that stipulate that they are no longer valid in the Nigerian criminal justice system. In other words, if the Supreme Court does not find a way to redeem its ideal image as a chamber of justice for all and not just for the few that have bled the country dry, we will start all over again for enactment of a new and more invincible version of ACJA! Finally, how long can this Supreme Court – or any other that comes after it – uphold Nigeria as the only country in the whole world in which interlocutory appeals operate in criminal cases? How long can we as a country endure the shame, the notoriety that come from the fact that criminal prosecution of our looters are far more successful in foreign lands than in the Nigerian judicial system?
The Benue State gubernatorial candidate of the People’s Democratic Party (PDP) in the last general elections, Prince Terhemen Tarzoor, has approached the Supreme Court to appeal the decision of the Court of Appeal.
In a nine grounds notice of appeal signed by the senior legal counsel to the appellant, J O Adesina SAN, filed on November 26, 2015, at the Appeal Court, Makurdi Division, for onward transmission to the apex court, the appellant expressed dissatisfaction with the entire ruling of the lower court.
It will be recalled that shortly after the April 11th 2015 polls, Tarzoor had resort to legally challenge the outcome but both the tribunal and the court of Appeal in Makurdi variously held verdicts in favour of the respondents Samuel Ortom, of the All Progressives Congress.
A member of the legal team to Tarzoor, G L Usongo Esq who spoke to our correspondent in Makurdi yesterday after filing the appeal disclosed that highlights of the grounds were to the effect that the burden of proving the primaries of APC was squarely, on APC and not Tarzoor as “erroneously” held by the court of appeal.
He stated amongst other things that “assuming the burden was on him, he conveniently discharge the burden by proving clearly that the APC in Benue conducted no primaries to elect any candidate for the polls in question”.
THE Federal Government has asked the Supreme Court to allow Senate President Bukola Saraki’s trial before the Code of Conduct Tribunal (CCT).
Saraki was arraigned before the CCT last month on a 13-count charge of false asset declaration. Proceedings in the trial have been temporarily suspended by the apex court pending the determination of the appeal by Saraki against his trial.
But the Federal Government asked the apex court to uphold the decision of the Court of Appeal, Abuja, that the CCT had jurisdiction to try Saraki and that the charge against him was valid, even when it was not endorsed by the Attorney General of the Federation (AGF).
The government’s position is contained in the respondents’ brief by its lawyer, Rotimi Jacobs (SAN), against Saraki’s appellant’s brief before the Supreme Court.
The government urged the apex court to dismiss Saraki’s appeal and hold that the Court of Appeal was right in its decision that the CCT was properly constituted with a chairman and a member.
The government also urged the apex court to uphold the Appeal Court’s majority decision that the competence of the charges were not affected by the fact that it was signed by a deputy director in the Ministry of Justice when there was no Attorney General of the Federation.
It argued that “the exercise of the power conferred on law officers to initiate criminal proceedings under subsection (2) of Section 174 of the constitution is not dependent on the existence of a sitting Attorney-General of the Federation”.
The government contended that there was no conflict between Paragraph 15 (1) of the Fifth Schedule to the 1999 Constitution and Section 28 of the Interpretation Act, which, according to him, provided that two of the three members of the CCT would form the quorum that could validly conduct proceedings of the tribunal.
On Saraki’s contention that the tribunal was not a criminal court and hence lacked the power to issue arrest warrant, the government argued that from the wordings of Paragraph 18 (1) of the Fifth Schedule to the Constitution, the powers conferred on the CCT to find guilt and impose punishment, could only be exercised by a criminal court.
The government faulted the appellant’s argument of improper service of the summons on him to appear before the CCT on September 18.
It urged the apex court to dismiss the argument on the grounds that the issue was not raised before the CCT, but only raised for the first time before the Court of Appeal.
On Saraki’s claim that the CCT ignored the Federal High Court when he was arraigned, the government urged the apex court to uphold the Court of Appeal’s view that since the Federal High Court did not make any order on September 18, 2015, restraining the CCT from sitting, the issue of disobedience of that order or the superiority of the Federal High Court did not arise.
No date is fixed yet for the hearing of Saraki’s appeal.
A clearly orchestrated tirade against the Supreme Court of Nigeria in respect of its acceptance of an undertaking by the counsel to the Respondent in the Saraki Appeal has come to my attention following two days of consistent bashing of the Court for daring to do the unthinkable by scuttling the politically motivated stampede to remove Bukola Saraki from his position as Senate President through a wholly unconstitutional trial at the Code of Conduct Tribunal.
Concerning my submission that the Code of Conduct Tribunal’s trial of Bukola Saraki is unconstitutional, I will address that in another forum. For now I wish to respond to the clearly misconceived notion that the Administration of Criminal Justice Act can be used to oust the power of the courts to grant stay of proceedings in criminal trials.
The issue as formulated by the leader of the charge goes as follows:
“It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizzare manner. Given the ouster clause contained in section 306 of the AJCS(sic), the Code of Conduct Tribunal ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki” –Femi Falana (SAN)
Highly respected Professor ItseSagay (SAN) was also quoted by the media as having said that “The new Administration of Criminal Justice Act has completely eliminated any application or grant of stay of actions or proceedings in criminal trials; it prohibits it. So, what the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities”.
Both eminent lawyers are intolerably wrong and thus give the impression that their perincuriam opinions could only have been motivated by prejudice and not by their well known life long struggle for the public good.
Indeed the manner in which their respected opinions have rabble-roused a surge of public opinion against the apex court in respect of an issue which is still sub-judice smacks, in my humble opinion, of criminal contempt.
It is in this context that I join issues with them on the matter as follows:
Section 306 of the ACJA is unconstitutional null and void in so far as it seeks to limit the exercise of judicial powers vested in the courts by section 6 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
Ayoola JCA (as he then was) in NNPC V Fawehinmi [1998] 7NWLR (PART 559) 598 at 612E-H echoed an age-old principle of separation of powers when he said “Other than in consonance with the constitution itself, legislative provisions which preclude the judiciary from exercising judicial powers violate the separation of powers principle enshrined in section 6 of the Constitution”
Relying on the above dictum, Omoleye JCA in Njikoye V MTN [2008] 9 NWLR (part 1092) 339 at 369 F-H also stated that “..the courts would disregard any statute that seeks to regulate and obliterate their judicial powers conferred on them by the express provisions of the Constitution, the supreme and grund norm of Nigeria. ….. An enactment will therefore be considered opposed to the constitutional provisions vesting judicial powers in a court if: it … purported to remove judicial powers vested in the court or redefine it in a way as to whittle it or limit the extent of the power vested or conferred on the court by the Constitution.”
What this means is that no legislature in Nigeria has the power to enact legislation that limits the exercise of judicial power or (as Falana states in his submission) constitute an “ouster clause”.
With regard to ouster clauses (although I do not agree that section 306 is one) Section 4(8) of the Constitution expressly forbids it and disempowers the legislature from making any such law.
To do so the legislature would have to amend the Constitution and that procedure is not the same as the mere passing of a bill into law as was done with the ACJA.
It is, therefore, more strange and bizarre that any lawyer would castigate the apex court or any court for that matter for ignoring the so-called “ouster clause” constituted by Section 306 of the ACJA especially as it expressly conflicts with the powers donated to the judiciary by the constitution, part of which is the power to order stay of any proceedings.
In this regard the Fundamental Rights Enforcement Procedure Rules 2009 expressly provide in Order 4 Rule 4(iv) that the Civil Rights Court may “Grant injunction restraining the Respondent from taking further steps in connection with the matter or maintaining status quo or staying all actions pending the determination of [a Fundamental Rights] Application”
In Order XI of the same rules it is provided that the Civil Rights Court may “At the hearing of any [fundamental right]s application, under these rules, …. make such orders, issue such writs and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act to which the applicant may be entitled”
KatsinaAlu JCA (as he then was) in the case of Abia State University V Anyaibe [1996] 3 NWLR (PART 439) 646 at 661 E-F said of the Fundamental Rights Enforcement Procedure Rules as follows: “Since the Rules have the force of law as the Constitution itself, it overrides the provisions of any other enactment which seeks to provide ‘an alternative’”
Therefore, in my humble submission, it is erroneous for anyone to state that it is illegal to grant a stay of proceedings in criminal proceedings.
The criminal court may ignore the provisions of section 306 in so far as it limits its ability to do justice in any worthy case and certainly an appellate court that perceives that something is wrong with any criminal proceedings may order its stay notwithstanding the provisions of section 306 of the ACJA and if it becomes an issue may infact set aside the section as invalid null and void.
Furthermore, a Civil Rights court before whom a complaint is made that a criminal proceeding infringes on any of the fundamental rights in chapter iv of the Constitution certainly has the power donated expressly by the constitution to intervene and the provisions of section 306 of the ACJA would not be of any moment in that circumstance given the superiority of the Constitution to the ACJA.
Care must be taken by the Buhari Government and its advisers not to end up reducing the judiciary to irrelevance under the cover of this “war against corruption”.
Whereas everyone agrees that it is necessary to root out the plague of corruption from this country, the method by which that is to be done must not be at the expense of the integrity of the institutions of democracy.
The idea to limit the power of the courts to grant stay of proceedings in criminal trials is apparently rooted in the perception that judges cannot be trusted to do the right thing in Nigeria because of corruption this cannot be the appropriate way to root out the corruption in the judiciary.
It is equivalent to enacting a law forbidding the President from approving expenditure because we believe that politicians are corrupt. That would only bring governance to a halt. The hue and cry about the efficacy of section 306 today is because those who favour it are not themselves judges.
If they were, they probably would frown on a law that already labels them as incompetent to rightly exercise discretion or corrupt before they had a chance to show their mettle.
It must be borne in mind that the fight against corruption is a worldwide fight as evidenced by the United Nations Convention against Corruption 2003 and the ECOWAS protocol on the fight against corruption 1993 both of which Nigeria is a signatory to.
The methods are stated in those conventions and they include a strengthening of the institutions of democracy and not the whittling down of their efficacy, authority or powers. I wonder why Nigeria’s case is always negatively different.
Furthermore, abuse of office and the illegal instigation of criminal processes are required by Articles 17 and 25 of the UN Convention to be criminalised by signatories as corrupt practices. If the Supreme Court perceives that the criminal proceedings against Senator Saraki might have been improperly instigated for any reason, it is obliged to join in the fight against corruption by stopping it completely and to this end may properly stay proceedings until it is satisfied that its perception is wrong.
I congratulate the Supreme Court for braving the mob hysteria which appears to be the hallmark of this new fight against corruption to do the right thing.
