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Judicial responsiveness as a staple panacea for societal malady (2)

Being (Part 2) the text of a paper delivered in honour of Hon Justice Williams Akinlolu Akintoroye on the occasion of his retirement from the Ondo State Judiciary as Hon. Chief Judge of Ondo State by Chief Wole Olanipekun CFR, SAN on Thursday November 3, 2022

By Chief Wole Olanipekun CFR, SAN

SELECTED CASES OF PROACTIVE JUDICIAL INTERVENTIONS

Much as we may be ad idem that the activities of our localized institutions are grossly underwhelming, we cannot also shy away from the fact that circumstances abound where these institutions, and in this case, the judicial system, have played the role of a salvor in the rescue of our sinking polity. Whether in politics, human rights, economy, security, commerce, etc., there are those instances where the courts have risen to the occasion, in redefining the trajectory. While I admit that the instances are in no wise exhaustive, I must also quickly add that the cases I will consider anon, are at best, samples of a hand full of situations under discourse. The essence of references to these cases is to activate the theme of this discourse. Be that as it may, the case samples are not localized.

INAKOJU V. ADELEKE ON IMPEACHMENT

As we all know, one very crucial power exercised by the legislature as a way of checking the excesses of the executive, is the power of impeachment. The history of impeachment of the executives in Nigeria dates back to 1981, when the Kaduna State House of Assembly impeached the State executive Governor, Alhaji Abdulkadir Balarabe Musa. Little was it known that this singular impeachment would eventually become a herald for spates of impeachment threats and actual impeachments in the country’s democratic sojourn. However, unlike other democratic experiments in Nigeria, the fourth republic commencing from 1999 was no doubt characterized by a high gale of impeachment attempts, threats and actual impeachments. Virtually all the chief executives of the thirty-six states of the federation have faced the threat of impeachment. Indeed, not less than five governors lost their seats through impeachment. These governors include Diepre Alamieyesigha of Bayelsa, Ayo Fayose of Ekiti, Rasheed Ladoja of Oyo; Joshua Dariye of Plateau, Peter Obi of Anambra and Murtala Nyako of Adamawa. Without being immodest, I led the team of NBA executives, as the then NBA President to the then Speaker of the House of Representatives, Ghali Umar Na’Aba, in 2003 to prevail on them to drop the impeachment move against President Olusegun Obasanjo. This is exclusive of the long list of deputy governors who were impeached. In short, all impeachment-related subjects were hitherto considered the exclusive preserve of the legislature. However, the story changed and a measure of sanity was introduced into the subject in the aftermath of the political imbroglio which led to the impeachment of the then Executive Governor of Oyo State, Mr. Rasheed Ladoja.

In summary, on 13th December, 2006, the Oyo State House of Assembly sat at the usual Assembly Complex Secretariat, Ibadan, while the anti-Ladoja group made up of 18 out of the 32 members sat at a popular hotel known as D’Rovans Hotel, Ring Road, Ibadan. At the said sitting, they purportedly suspended the Draft Rules of the Oyo State House of Assembly and in the same manner, issued a notice of allegation of misconduct against the Governor, with the purpose of commencing impeachment proceedings against him. On 22nd December, 2005, without following the laid down rules, regulations and the Constitution of the Federal Republic of Nigeria, the appellants purportedly passed a motion calling for the investigation of the allegations of misconduct against Senator Ladoja without the concurrent consent and approval of the two-thirds majority of the 32 member House of Assembly. The purported notice of allegations of misconduct against the Governor was not served on each member of the House of Assembly. Aggrieved by the procedure of removing Senator Ladoja, the Speaker and the Deputy Speaker of the House, as plaintiffs, filed an action at the High Court of Justice, Oyo State by way of originating summons. They asked for six declaratory reliefs and three orders setting aside the steps taken by the 18 anti-Ladoja members of the House of Assembly in relation to the issuance of notice of allegation of misconduct and passage of motion to investigate same. They also sought an order of injunction restraining the said lawmakers from taking any further steps to inquire or deliberate on the investigation and impeachment proceedings of the then Governor Ladoja.

In a preliminary objection, the said anti-Ladoja members, as applicants contended in a way which was expressive of the popular perception across legal circle at the time, that the court lacked jurisdiction to entertain the suit and that the plaintiffs lacked locus standi to institute the suit. They also contended that the claims did not disclose a reasonable cause of action. Their argument was that insofar as it touches on the exercise of the power of removal of the executive by the legislature, no matter how exercised, the judiciary is at best a casual observer. In his ruling of 28th December, 2005, the learned trial Judge, Ige, J., upheld the preliminary objection that he had no jurisdiction to deal with the matter, as according to him, “When the House of Assembly is exercising its constitutional powers in relation to impeachment proceedings or any matter relating thereto, it is performing a quasi-judicial function…and having regard to the nature of the reliefs claimed by the plaintiffs, it is clear beyond argument that the jurisdiction of [the] court is clearly ousted.” The trial court went further to conclude that the impeachment and related proceedings are purely political matters over which the court cannot intervene, as the action is not justiciable. Obviously dissatisfied with the decision, the Speaker and his Deputy proceeded on appeal to the Court of Appeal, and yours faithfully led the team of lawyers who challenged the decision of the trial court on their behalf. After an intense legal fireworks, in its decision, the Court of Appeal, per Ogebe, JCA, in setting aside the decision of the trial court, held that it had jurisdiction to examine the claim in the light of Section 188 Subsections 1-9 of the 1999 Constitution and if he was not satisfied that the impeachment proceedings were instituted in compliance thereof, he has jurisdiction to intervene to ensure compliance. The court invoked the provision of section 16 of the Court of Appeal Act to determine the merit of the action and to hold that  no factional meeting of any members of a State House of Assembly can amount to a constitutional meeting of the whole  House of Assembly as envisaged and provided for in the Constitution; and that all the steps taken by the faction of the defendants/respondents purporting to initiate impeachment of Senator Ladoja as Governor of Oyo State were not actions of the Oyo State House of Assembly under Section 188 of the 1999 Constitution. This decision was eventually affirmed by the Supreme Court upon a further appeal by the renegade members of the House of Assembly and has now been reported as Inakoju v. Adeleke.

The above decision was indeed a watershed and an alteration of the paradigm in relation to the constitutional question of impeachment. It immediately became a precedent and indeed a touchstone for benchmarking subsequent issues of similar description. Significantly, the cases of Balonwu v Obi Dapialong v Dariye, Nyako v. Adamawa State House of Assembly amongst a host of others, have been decided in line with the decision of the Supreme Court in Inakoju v. Adeleke, which has undeniably created a modicum of sanity in the exercise of the power of impeachment by the legislature. 

LAKANMI V. A.G. WEST

The case of Lakanmi v. Attorney General of the Western Region, is another of those epoch-making decisions where the Nigerian judiciary attempted to stamp its feet in righting the wrong of other arms of government. The significance of this case is hidden in the fact that it was, in the words of Segun Adeniyi, in fact, ‘against the run of play’, as it took an uncommon specie of courage to nullify the actions of the military government. The first appellant in that case, Mr. Lakanmi, was a public officer during the Gowon regime. He was alleged of corrupt practices, which led the Western State Military Government to commence an investigation into his assets and that of other public officers in 1970, through a Commission of Inquiry which found Lakanmi and others guilty of corruption. The Commission proceeded further to recommend the forfeiture of their assets to the military government. Expectedly, Mr. Lakanmi was aggrieved by the verdict and he immediately applied to the High Court of the Western State, sitting in Ibadan for an order of certiorari, quashing the order of the tribunal. It was his contention that the Public Officers and other Persons (Investigation of Assets) Edict No 5 of 1967 under which the order was made was invalid because of its inconsistency with the Public Officers (Investigation of Assets) Decree of 1966. The High Court dismissed the motion and held that the Edict was validly made and that since it ousted the jurisdiction of the court, the validity or otherwise of the order could not be challenged. A further appeal was lodged by Lakanmi to the Western State Court of Appeal, wherein the appeal was equally dismissed. It is instructive to point out that while the appeal was pending at the Court of Appeal, the Federal Military Government promulgated three Decrees, obviously for the purpose of assisting the respondent’s case. One of the decrees was Decree No 45 of 1968 which validated all orders made under any enactment and ousted the jurisdiction of the courts from questioning the validity of any Decree. It also excluded the application of fundamental human rights provisions in the Constitution and abated all pending proceedings in respect of any Decree.

Dissatisfied by the decision of the Court of Appeal, Lakanmi and his co-appellants appealed to the Supreme Court, where the Supreme Court considered sundry issues, bordering on the status and legitimacy of the Federal Military Government, as well as the validity of the array of Decrees and Edicts in question. In short, the court was faced with the issue of whether the Constitution was overthrown and whether there was no restraint on the power of the Military. The Court held that the Decrees and Edicts that were promulgated for the purpose of confiscating property in general and the appellants’ property, in particular, were void. The Court held that the purpose of the rule was an interim one whose purpose was to save Nigeria from imminent chaos and that it did not overthrow the Constitution or justify the taking of the appellants’ property by force. The Supreme Court, therefore, declared the Decrees and Edicts confiscating such property void. As it would be recalled, Nigeria was then, only commencing its journey of decades of military experience. Though the government of General Yakubu Gowon made an overreach to this decision through its FMG (Supremacy and Enforcement of Powers) Decree No 28 of 1970, the decision served to instill a measure of restraints by successive military regimes in their proclivity for withdrawal of fundamental rights by force of Decrees.

Hon Justice Williams Akinlolu Akintoroye (rtd), immediate past Chief Judge of Ondo State

MARWA V. NYAKO

Once upon a not-too-distant time, whenever the Election Petition Tribunal or the Court of Appeal ordered a rerun election into the office of Governor of any concerned State, if the incumbent re-emerged as the winner of the rerun election, his term of four years would commence afresh, thereby, affording him a lion share of the power and the paraphernalia of office beyond the maximum eight year period constitutionally prescribed. This practice was at the time, predicated on the decision of the Supreme Court in Obi v. INEC where the Supreme Court, in interpreting Section 180(2) of the Constitution, held that the four years tenure of Mr. Peter Obi began from 17th March, 2006 when Mr. Peter Obi took the Oath of Allegiance and Oath of Office as Governor of Anambra State. Following this position of the Supreme Court, which was of course, situated within the peculiar context of Mr. Peter Obi’s circumstance, having come into office mid-way into the term, State Governors who participated and emerged as winners of their rerun elections seriously geared themselves for extra-years beyond the constitutionally prescribed four/eight years. It was their argument that since the Constitution prescribed a term of four years to be computed from the date the occupier last took the oath of office, their term began afresh, notwithstanding the fact that they had been in office before a rerun was ordered. After former Governor Oni of Ekiti State took his second oath of allegiance and oath of office following his emergence at the rerun election, he was quoted to have said, “I will be your Governor for the next four years.”

The foregoing arrangement was, however, upset when despite the fact that similar cases of rerun had occurred in Adamawa, Bayelsa, Cross River, Kogi and Sokoto States, the Independent National Electoral Commission (INEC) caused to be published in national daily newspapers, that it would conduct gubernatorial elections in all the States of the Federation including the aforementioned States in January 2011. This compelled the Governors of the respective States to challenge the position of INEC, claiming as it were, that their terms of office began to read from their second oath of office and allegiance, being 30/4/2008, 29/5/2008, 28/8/2008, 5/4/2008 and 28/5/2008, respectively. The trial court and the Court of Appeal agreed with the Governors’ position, but this was not to be at the Supreme Court. I led a team of lawyers for one of the appellants (Marwa) in the consolidated appeal at the Supreme Court, where I contended that by the express tenor of the Constitution, except when the nation is at war, no elected governor shall spend more than eight (8) years of two (2)terms cumulative tenure; and that the issue of second oath is subsidiary and not relevant as the same parties who contested the first election also participated in the re-run as no primaries would be conducted before the re-run. Counsel for the other co-appellants made similar submissions as mine. It was a defining and critical constitutional matter, as a result of which the Supreme Court invited amicii curae. In its decision, the apex court agreed with our contention and held inter alia, that “from the language used in section 180 of the 1999 Constitution, it is very clear that the Constitution intended that a Governor of a State shall have a tenure of four years from the date he took the oaths of allegiance and of office and nothing more, though he may spend less where he dies, resigns or is even impeached. In all, a governor has a maximum tenure of eight (8) years under the 1999 Constitution.

This judicial decision invariably, did not only clarify the politically contrived ambiguities, it also put paid to whatever absurdities the constitution was being employed to perpetrate by politicians. It was a timely judicial response to correct a politically contrived malady; a malady which was already undermining and subverting the Constitution.

SHUGABA ABDURRAHAM DARMAN V. THE FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS.

This case has operated immensely in defining the extent of governmental powers in the area of citizen’s rights and deportation. It is an apposite authority to the effect that a Nigerian citizen domiciled in Nigeria cannot possibly be deported from Nigeria. The man, Shugaba Abdurrahaman Darman was a Member of the Great Nigeria Peoples Party [GNPP] and the Majority Leader in the Borno State House of Assembly at the material time. The National Party of Nigeria (NPN) controlled governance at the Federal level, and in purported exercise of powers under the Immigration Act, 1963, the then Federal Minister for Internal Affairs (Bello Maitama Yusuf) issued an Order, published in an Extra-ordinary Federal Government Gazette classifying Shugaba Darman as a “Prohibited Immigrant” The deportation order entitled “Shugaba Abdurrahman Darman’s Deportation Order 1980”, stated amongst other things that “…Shugaba Abdurrahman Darman at present in Nigeria ought to be classified as a prohibited immigrant” and also that “Shugaba Abdurrahman be deported from Nigeria by the first available means….” Though Shugaba Darman was promptly deported to a village in Chad, there was a public outcry against the obviously politically motivated deportation, which prompted the government to institute a one-man tribunal of inquiry presided over by Justice P.C Okanbo.

Shugaba Abdurrahaman Darman challenged the action in court, while seeking several reliefs, including a declaration that he is a citizen of Nigeria and as such has a fundamental right of immunity from expulsion from Nigeria. The Maiduguri High Court ruled in Shugaba’s favour, revoked the deportation order and awarded damages to the tune of 350,000 Naira to Shugaba. The government appealed unsuccessfully to the Court of Appeal, before proceeding to the Supreme Court, the four justices led by Justice Coker affirmed the decisions of the lower courts. It goes without saying that this decision has since its delivery, directed the line of arguments and decisions on similar subjects across the courts as well as all institutional frameworks. Be it noted that this was a decision of Adefila, J., of the High Court of Borno State, and that decision quickly arrested the excessiveness of the political powers that be at that time.

THE CASE OF PROCLAMATIONS 1610

The Case of Proclamations  is an English constitutional law case which occurred in the course of the reign of King James I (1603 –1625). The case defined some limitations on the Royal Prerogative at that time, establishing that the Monarch could make laws only through parliament. In summary, sometime in 1610, Sir Edward Coke, then Chief Justice of the Common Pleas, was called before the Privy Council of England alongside Lord Chief Justice of the King’s Bench Thomas FlemingLord Chief Baron Lawrence Tanfield, and Baron James Altham and asked to give a legal opinion as to whether the King, by proclamation, can validly prohibit new buildings in London or regulate the trade in starch necessary for ruffed collars, these having been referred to the King by the House of Commons as grievances and against law. Coke, with Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham, insisted on consulting other Judges before proffering a legal opinion on the subject given the very importance of the subject which concerned the answer of the king to the Commons. Eventually, Coke gave an opinion, where it was admitted that the King may require subjects to obey the law but cannot extend his prerogative beyond its legal bounds, cannot create new crimes, and cannot enlarge the criminal jurisdiction of Star Chamber. Consequently, the King was held to be without the power by which to arbitrarily, through royal proclamations, prohibit the erection of new buildings in London, or the making of wheat starch without the consent of Parliament, because this power had not previously been granted by Parliament to the King by the making of statute law.

This decision would eventually operate as a precedent in future English history, as the case has been seen by some historians and jurists as influential in the development of the concept of judicial review in English common law. It is also rightly arguable that the case paved the foundation for the eventual proper resolution of the extent of the royal prerogative through Bill of Rights 1689, where it was established that the powers of the Crown were subject to law, and there were no powers of the Crown which could not be taken away or controlled by statute.  Over 400 years later, the Case of Proclamations continues to affect the constitutional law of the United Kingdom. Even quite recently in 2017, it was cited and followed by a Divisional Court of the High Court in its landmark judicial review decision, R (Miller) v Secretary of State for Exiting the European Union, concerning whether the government of the United Kingdom had the power, under the Crown’s foreign affairs prerogative, to serve a notice triggering Brexit, following the “leave” vote in the 2016 European Union Referendum. Similarly, the case was again cited in the 2019 Supreme Court case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, where the issue was considered as to whether the advice given by the prime ministerBoris Johnson, to Queen Elizabeth II that Parliament should be prorogued in the prelude to the United Kingdom’s withdrawal from the European Union was lawful. In a unanimous decision by the Supreme Court, Boris Johnson’s advice was found to be unlawful while nullifying the Order in Council permitting the prorogation.

MARBURY V. MADISON

This is one case which succeeded in placing the American system on the sound footing it currently enjoys today. Lord Justice Marshall in that case, defined the practical implications of checks and balances, while asserting the independent role of the judiciary of the United States of America. In fact, the audacity in this decision will be more appreciated when it is observed that it is the first case which declared an act of parliament as unconstitutional. 

In the weeks before Thomas Jefferson’s inauguration as president in March 1801, the Federalist Congress created 16 new circuit judgeships (in the Judiciary Act of 1801) and an unspecified number of new judgeships (in the Organic Act), which the outgoing President John Adams proceeded to fill with Federalists in an effort to preserve his party’s control of the judiciary and to frustrate the legislative agenda of Jefferson and his Republican (Democratic-Republican) Party. Because he was among the last of those appointments (the so-called “midnight appointments”), William Marbury, a Federalist Party leader from Maryland, did not receive his commission before Jefferson became president. Once in office, Jefferson directed his secretary of state, James Madison, to withhold the commission, and Marbury petitioned the Supreme Court to issue a writ of mandamus to compel Madison to act. Marbury and his lawyer, former attorney general Charles Lee, argued that signing and sealing the commission completed the transaction and that delivery, in any event, constituted a mere formality. But formality or not, without the actual piece of parchment, Marbury could not enter into the duties of office. Despite the fact that Lord Marshall acted as the Secretary of States under President John Adams when the action in question was done, he agreed to preside over the case, where set up three questions for determination to wit:

(1) Did Marbury have the right to the commission? (2) If he did, and his right had been violated, did the law provide him with a remedy? (3) If it did, would the proper remedy be a writ of mandamus from the Supreme Court?

Following the arguments of Marbury’s counsel on the first two questions, Marshall held that the validity of a commission existed once a president signed it and transmitted it to the secretary of state to affix the seal. Presidential discretion ended there, for the political decision had been made, and the secretary of state had only a ministerial task to perform—delivering the commission. In that the law bound him, like anyone else, to obey. He, however, ultimately declared as unconstitutional, the provision of the Judiciary Act of 1879, which empowered the Supreme Court to issue writ of mandamus as an original court. By asserting the power to declare acts of Congress unconstitutional (which the court would not exercise again for more than half a century), Marshall claimed for the court a paramount position as interpreter of the Constitution.

Time and space will not allow me to elaborate further on diverse momentous occasions where our courts have acted responsively to halt societal malady, using the instrumentality of profound judicial pronouncements. A litany of such decisions and pronouncements can be found littering our law reports, including but not limited to: FBN Plc v. May Medical Clinics,on the proposition that an appellant does not lose his right of appeal simply because his record of appeal could not be found, due to no fault of his; Ogwe v. IGP, on the salient issue that payment of inadequate filing fee should not lead to the dismissal of an appeal; Olaniyan v. University of Lagos on the protection of an employee whose employment is statutorily flavoured; Military Governor of Lagos State & Ors. v. Ojukwu, on the very essence of the rule of law which should never operate under the rule of force or fear, and that once a court is seised of a matter, no party has a right to take the matter into his own hands- the action of the Military Governor of Lagos State was declared by the Supreme Court as amounting to executive lawlessness (similar cases on this same proposition include, Chucks v. RCAR; Rossek v. ACB; Registered Trustees of the Apostolic Church v. Olowoleni, Ezegbu v. FATB; FATB v. Ezegbu; Daniel v. Ferguson.); Bello v. AG Oyo State, on the novel decision that it was illegal and unconstitutional to execute an appellant while his appeal against his conviction was pending, and the application of the latin maxim ubi jus ibi remedium to remedy the deficiency in his appeal was facilitated.

Chief Olanipekun is Chairman, Body of Benchers

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