PARTNERS FOR CONSTITUTIONAL DEMOCRACY NO. 8 OKON INOCK CLOSE, CALABAR MUNCIPALITY CROSS RIVER STATE 22th July, 2013 Sir, LEND A VOICE TO THE QUESTION OF THE CONSTITUTIONALITY OF SECTION 285 (6) AND (7) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERA (AS AMENDED) 1).This topical issue has generated a lot of concern considering the purport of section 285 (6) (7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This discourse is not centered on the interpretation given to these sections of the Constitution or whether the Supreme Court can overrule itself but on the constitutionality of the sections which are considered to be harsh, oppressive, arbitrary and ultra vires the powers of the National Assembly. That is why we need your contribution or view on this issue either in any of the national Dailies or the forth coming Bar Conference. Your contribution will assist the courts to correct what the Supreme Court described as the error of sections 285 (6)(7) of the Constitution. Thank you for your enormous contribution in the development of our law. 2). Section 285 (6) of the Constitution provides: “An Election Tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition.” While section 285 (7) of the 1999 Constitution (as amended) provides: “An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of the judgment of the tribunal or Court of Appeal.” 3).They puzzling and mind bogging questions are: - Whether the legislature can in exercise of its functions exceed the powers granted to it by the Constitution? See section 1(1) of the 1999 Constitution (as amended). - Whether the legislature can fix and limit time within which courts of law or judicial tribunals established by law would hear and determined a matter properly instituted before it following due process of law, which is within the inherent powers of the courts? See section 6(6)(a) of the 1999 Constitution (as amended). - Whether the legislature can enact a law that ousts the jurisdiction of courts of law or judicial tribunals established by law? See section 4(8) of the 1999 Constitution (as amended). - Whether the legislature can enact a law that denies Nigerians their right to fair hearing enshrined in the Constitution? See section 36(1) of the 1999 Constitution (as amended) . 4). It is said that, “The Constitution is the norm validating norm. It is the yardstick or standard by which the Constitutionality and, ipso facto, validity of every legislation, subsidiary legislation or rules made there under can be tested and determined.” - Per NGWUTA, JSC. 5). In AMADI V. INEC 49 NSCOR PART 1, HOLDING 5 AT PAGE 644 the Supreme Court per ONNOGHEN, JSC delivering the lead judgment held that: “The provision of section 285 (7) of the Constitution is of strict liability and since the Court has not been called upon to declare same unconstitutional it remains the law and binding on all and sundry.” Based on the above view, it seems to us that, for section 285 (6)(7) of the Constitution (which is an enactment of the National Assembly) that came by way of an amendment to the 1999 Constitution to be valid, it must first pass the validity test that could be gleaned in the light of the following provisions of the 1999 Constitution. Sections: 1(1), 4(8), 6(6)(a), 36(1) and 294(1). This is because of the importance of holistic reading of the Constitution as was held in LAFIA LOCAL GOVERNMENT V. ANZAKU 51 NSCQR 2012 AT 535 PARTICULARLY PAGE 546 per J. A FABIYI, JSC at pages 573 to 574 that: “There is no doubt about it that in due interpretation of the provisions of the Constitution which is the grund norm, the court should embark on broad interpretation more especially when same relates to the fundamental right of the citizen. The court should employ a liberal approach or take what is often called a global view. This is so as the rights of the citizen must not be toyed with under any guise, furthermore, related sections of the Constitution ought to be interpreted together so as to produce a harmonious result.” 6). A reproduction of the above provisions will suffice. Section 1(1) provides: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” 7). Meaning that the legislature cannot exceed its legislative powers granted by the Constitution. See AGF VS. AG OF THE 36 STATES (2002) 5 M.J.S.C 1 – 161 where the Supreme Court held that: “Section 1 (1) deals with the supremacy of the Constitution. It makes it abundantly clear and in no uncertain terms that the provisions of the Constitution are superior to every provision made in any Act or Law and are binding and must be observed and respected by all persons and authority in Nigeria. The National Assembly must also observe full compliance with the provisions of the Constitution.” (Pp. 129 – 130) paragraphs G – A 8) “All powers legislative, executive and judicial must ultimately be traced to the Constitution. The legislative powers of the legislature cannot be exercised inconsistently with the Constitution and where it is so exercised it is invalid to the extent of such inconsistency…where the Constitution sets the condition for doing a thing, no legislation of the National Assembly and the State House of Assembly can alter those conditions in any way directly or indirectly, unless the Constitution issue as an attribute of its supremacy expressly so authorized.” INEC V. MUSA (2003) 3 M.J.S.C 1 - 207 (Pp. 26 – 27) paragraphs F – A. 9). Section 4 (8) of the Constitution provides: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to ousts the jurisdiction of a court of law or of a judicial tribunal established by law.” 10). Section 6(6)(a) of the Constitution provides: “The judicial powers vested in accordance with the foregoing provisions of this section (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law.” 11). Section 36(1) of the Constitution provides: “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” 12). Section 294 (1) of the Constitution provides: “Every court established under the Constitution shall deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses and furnish all parties to the cause or matter determine with duly authenticated copies of the decision within seven days of the delivery thereof.” A communal reading of the above sections means that any law or Enactment made by the legislature that conflicts, violates or infringes on these Constitutional provisions is ultra vires, null and void. See YUILL V YUILL (1945) 1 ALL E. R 183 at 189 and JONES V. NATIONAL COAL. BOARD (1957) 2 ALL E. R 155 at 159. 13). In YUSUF V. OBASANJO (2003) 11 M.J.S.C 1 AT 16-17 HELD 4 (P. 30) PARAAPHS A – C the Supreme Court cited with approval the case of UNONGO Vs AKU & ORS. (1983) NSCC 563 thus: “That an enactment which specifies a time constrict on the Court to determine an election petition, as distinguished from the time for filing same (which must include time for determining interlocutory applications filed within the time allowed in the course of determining the petition) is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to allowed an aggrieved candidate to seek redress in Court.” 14). In UNONGO Vs AKU & ORS. (1983) NSCC 563, the Supreme Court per BELLO, JSC held that: “It is pertinent to state that the National Assembly is not a sovereign parliament. Its legislative powers are limited by express provisions of the constitution. Sections 1(3), 4(8), 6(6) (a) and 33(1) of the constitution are germane to the issue on appeal… If the constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements… As the court respect the right of the legislature to control its internal affairs so the constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts. It may be observed that sections 73(1)(c), 111(1)(c), 233 and 239 of the Constitution empower the National Assembly or a House of Assembly, as the case may be, to make laws for regulating the practice and procedures of the Federal High Court and the High Court of a State. It seems to me, if in the purported exercise of the powers under these sections, the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law, such law shall be void for being inconsistent with the provisions of the second limb of section 4(8). The dictum of ANIAGOLU, J.S.C in Dr. Sofekan V. Chief Akinyemi & 3 Ors. (1980) 5- 7 S.C.1 at p.25 to 30 is apt: “it is essential in a constitutional democracy, such as we have in our country, that for the protection of the rights of citizens, for the guarantee of the rule of law which includes according fair trial to the citizen under procedural regularity and for checking arbitrary use of power by the executive or its agencies, the power and jurisdiction of the courts under the Constitution must not only be kept intact and unfettered but also must not be nibbled at. To permit any interference with or a usurpation of the authority of the courts as aforesaid, is to strike at that bulwark which the Constitution gives and guarantees to the citizens, of fairness to him, against all arbitrariness and oppression, indeed, so important is this preservation of, and non- interference with, the jurisdiction of the courts that our present Constitution (Decree No. 25 of 1978) has specifically provided (see s. 4(8) that neither the National Assembly nor a House of Assembly shall enact any law that ousts or purports to ousts the jurisdiction of a court of law or a judicial tribunal established by law”. The provisions of section 6 (6) (a) of the Constitution to which I have earlier referred clearly indicate that the judicial powers vested in the courts shall extend, notwithstanding anything to the contrary in the constitution, to all inherent powers and sanctions of a court of law. One of the powers which has always been recognized as inherent in courts has been the right to control their internal proceedings and to so conduct the same that the right of all suitors before them may be safe-guarded in such a manner that all parties are given ample opportunity to prosecute or defend the cases for or against them without let or hindrance. The old adage that delay of justice is denial of justice has the same force as the maxim hasty or hurried justice is also denial of justice. On this account any statute which prescribes time limit within which a trial court must try and determine cases or within which an appeal court must hear and determine appeals is inconsistent with the provisions of section 4 (8) and 6 (6) (a) of the Constitution and is therefore null and void by virtue of section 1 (1) of the constitution.” 15). See also, the American case of INDIANA EX REL. KOSTAS V E.W JOHNSON 168 ALR 1118. P. 1122 “Courts are an integral part of the government, and entirely independent, deriving their powers from the constitution, in so far as such powers are inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in the constitution or established in pursuance of the provisions of the constitution, cannot be directed, controlled or impeded in it functions by any of the other departments of the government”. This is a case decided in another jurisdiction with a similar jurisprudence, emphasizing judicial independence against all forms of unconstitutional interference. 16). Finally, in KADIYA Vs LAR & ORS. (1983) NSCC 591 IRIKEFE, JSC held thus: “To the extent that the National Assembly had enacted a time limitation within which an election petition must be disposed of in court, we held that the said provisions cited above are unconstitutional, null and void and of no effect whatsoever as being ultra vires the powers of the National Assembly. While the competence of the National Assembly under section 73 of the Constitution to legislate on matters appertaining to elections is undoubted, such powers does not and cannot extend to include a power to imposed a time limitation within which a court of law established under the Constitution must conclude the hearing of a case. The doctrine of separation of powers is the bulwark or anchor on which the survival of this nation as a nation must depend. While each arm of government must need respect the other arm in the interest of smooth running of governmental machinery. Such respect must never degenerate to the level were one arm will be allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution.” 17). Also, the Supreme Court in ATTORNEY GENERAL OF BENDEL STATE V ATTORNEY GENERAL OF FEDERATION & 22 ORS. (1982) 3 N.C.L.R AT P.40 per FATAI WILLIAMS C.J.N posited that: “by virtue of the provisions of section 4(8) of the Constitution, the courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.” 18). SOWEMIMO, C.J.N (as he then was) stated vehemently in UNONGO V AKU & ORS (1983) NSCC 563 that: “This, therefore, shows the limitation of the legislative powers of the National Assembly. If, therefore, any portion of any Act enacted by the National Assembly infringes section 33 (1) and thereby ousts the jurisdiction of a court to hear and to determine a matter then there is a breach of section 4 (8) of the Constitution of the Federal Republic of Nigeria 1979… To the extent therefore that it limits the exercise of judicial functions by a competent court of law, it is void.” 19). We are fortified in the believe that sections: 285 (6) (7) of the 1999 Constitution (as amended) is unconstitutional, ultra vires, null and void based on the doctrine of judicial precedence and stare decisis, whereby the Supreme Court and all Courts in the land are bound by the decision of the Supreme Court once a principle of law is enunciated, and well settled. See ADESOKUN V. ADETUNJI (1994) 5 NWLR (PT. 346) 540 where the Supreme Court held that: “Stare decisis literally means - to stand by what has been decided and not to disturbed or unsettle things which are established. Stare decisis thus means to abide by former precedents where the same point come again in litigation. Stare decisis presupposes that the law has been solemnly declared and determined in the former case. stare decisis is a principle by which a court is bound to follow decisions in previous cases otherwise known as precedent. The use of precedent is an indispensable foundation upon which to decide what the law is and its application to individual cases. It provides some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules.” (p. 561, paragraphs E - G). 20) In (CLEMENT V.IWUANYANWU (1989) 3 NWLR (PT.107) 39 REFERRED TO). (Pp. 561 – 562,) PER ONU, JSC AT PAGE 577, PARAGRAPHS A – E “in as much as the decision of this Court in OLORIODE V. OYEBI (1984) 1 SCNLR 390 has not been overruled by a full panel of this Court and it is still the law, the binding force of stare decisis and precedent will ensure that it is followed until overruled. And until then, the ratio decidendi enunciated from that decision will continue to have force and application to similar or identical decisions coming up on appeal for adjudication and such decisions will continue to be binding on all lower Courts in the hierarchy of Courts in the Country.” 21). Finally, in BRAITHWAITE V SKYE BANK NSCQR VOL.52 PART 2 PAGE 458 AT 460 the Supreme Court per M. D. MUHAMMED held that: “Again, learned Appellant’s counsel in asking us to ignore the decision of this court in OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521 and SLB CONSORTIUM LTD.V. NNPC (2011) 9 NWLR (PT. 1252) 317 because of the peculiar facts of the instant case seems to be requesting the impossible. The court remains bound by its previous decisions where the facts and the laws considered in the earlier cases are the same or similar in the cases being subsequently determined.” 22). We respectfully submit that, in as much as the Supreme Court has not overruled itself in the principle or the ratio decidendi enunciated in the above cases, this is still the law and the Supreme Court is bound to follow its previous decisions expressed in those cases to the effect that the Legislature cannot make laws to oust the jurisdiction of a court, fix or limit time within which a Court or Tribunal established by law will hear and determined a case properly instituted before it by due process of law. 23). It is for the above reason that the Supreme Court in ABACHA V. THE STATE (2002) 9 M.J.S.C VOL. 9 1 AT 12 per BELGORE, JSC (as he then was) held that: “We are now in a democratic setting, with no legislative ouster of Court’s jurisdiction.” 24). In the light of the foregone, we are of the firm view that section 285 (6)(7) of the Constitution that came by way of an amendment is unconstitutional, ultra vires, null and void for ousting the jurisdiction of a court of law or a tribunal established by law. 25). In ACTION CONGRESS OF NIGERIA & ANOR. V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 3 ORS. SC/40/2013 The Supreme Court per CLARA BATA OGUNBIYI, JSC interpreting the said section 285 (7) of the 1999 Constitution (as amended) held that: “The jurisdiction of this Court which is a creation of a statute is completely ousted by the clear cut Constitutional provision.” 26). We submit that the Supreme Court having held that section 285 (7) of the Constitution (which is an enactment of the National Assembly) , ousts the jurisdiction of the Court, the section is liable to be declared unconstitutional, ultra vires null and void, for violating or infringing on sections: 1(1), 4(8), 6(6)(a), 36(1) and 294(1) of the 1999 Constitution of the Federal Republic of Nigeria. 27).We submit further that in as much as sections: 1(1), 4(8), 6(6)(a), 36(1), and 294(1) of the 1999 Constitution of the Federal Republic of Nigeria was not or has not been amended, the National Assembly cannot validly enact section 285 (6)(7) as an amendment to the 1999 Constitution because of its inconsistency with the above provisions of the Constitution. 28). ON INTERPRETATION OF OUSTER CLAUSES – In EMUZE V. VICE CHANCELLOR (2003) 8 M.J.S.C VOL. 8 AT 1 PARTICULARLY, 3 TO 4 the Supreme Court held that: “The Courts do guard their jurisdiction judicially and zealously and as such any enactment, which takes away a citizen’s right of access to Court ought to be construed very narrowly against any one claiming its benefit, that is, furtissime contra preferentes. See PEENOK INVESTMENT LTD VS HOTEL PRESIDENTIAL (1983) 4 N.NC.L.R 122 (P. 12) PARAGRAPHS C – D Furthermore, “Ouster clauses are interpreted more liberally on the side retaining and preserving the Court’s jurisdiction.” See BARCLAYS BANK OF NIGERIA V. CENTRAL BANK OF NIGERIA (1976)1 ALL N.L.R (PT. 1) 409, (P. 12) PARAGAPH D 29).Your contribution will help the court to decide whether or not to declare the oppressive and arbitrary sections 285 (6) and (7) of the Constitution (as amended) unconstitutional. Particularly, as the sections are exploited to frustrate election petitions and appeals by incumbents. And so defeat the intention of the Constitution and the Electoral Act that recognizes the right of an aggrieved party to go to Court after election, to assert his right instead of resorting to self help or violence. Thank you. Yours faithfully, Sgn Barr. Egbe Eworo 08036136674
Posted on: Fri, 26 Jul 2013 12:06:53 +0000
Trending Topics
Recently Viewed Topics
© 2015