LEGAL IDEAS FORUM

Obidiegwu Chibuzo Stanley-Nigerian Judiciary:Matters Arising.

Query: What is your observation in the judgement delivered in the case of the Federal Government against Sen. Orji Uzor Kalu?
Stanley Obidiegwu: The judgment of the Supreme Court in Orji Uzor Kalu’s case is a good judgment devoid of sentiments and politics. The question to be asked is, On what Constitutional authority does the National Assembly or the President of the Court of Appeal stand to grant dispensation to Hon. Justice Idris, JCA to continue to act as a judge of the Federal High Court, notwithstanding he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?
The Constitution is clear in s.253, 1999 constitution of the Federal Republic of Nigeria (as amended) (hereinafter referred to as 1999 CFRN) which provides that “The Federal High Court shall be duly constituted if it consists of at least one judge of that Court.”
In the locus classics case of Madukolu v Nkemdilim, the Court held that “a court is competent if It is properly constituted as regards numbers and qualifications of the bench and no member is disqualified for one reason or the other amongst others.”
In the instant case, Idris JCA had been elevated to the Court of Appeal. Therefore he ceased to be a Judge of the Federal High Court. He was no longer a judge of that court as provided in s.253, 1999 CFRN. In what capacity would the Lordship conclude proceedings and deliver judgment? Was he exercising jurisdiction as a judge of the Federal High Court or as a Justice of the Court of Appeal? These are all questions that agitate the mind.
The Supreme Court in Ogbunyinya v Okudo and Our Line Limited v SCC Nigeria held that “a judge elevated or appointed to a higher court would cease to be a judge of the Court from which he was elevated and would therefore lack the requisite jurisdiction to conclude his part heard matter in the Court from which  he was elevated.” Only the Chief Judge of the Federal High Court has the vires and powers to issue fiat directing a judge of the Court to conclude partly heard matters pending in that Court. See s 19(3) and (4) of the Federal High Court Act. The President of the Court of Appeal is not empowered to share the statutory function with the Chief Judge of the FHC. The Chief Judge of the FHC is by s.1(2)(a) of the Federal High Court Act, the sole authority vested overall control and supervision of the administration of the FHC.
The powers of the National Assembly to make laws for the peace, order and good governance of the Federation or any part thereof as provided in s.4 of the 1999 CFRN is circumscribed by the overall supremacy of the Constitution in s.1(3) of same constitution which provides “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of its inconsistent be void.”
Though the intentions of the National Assembly in s.396(7) of the Administration of Criminal Justice Act (hereinafter referred to as ACJA)  is good that is, to speed up the time for criminal cases, it conflicts with the provision of s.253 of the 1999 CFRN in that Idris JCA had ceased to be a Judge of the Federal High Court when he delivered judgment. He was thus, disqualified from entertaining the matter. Conclusively, the elevation of Idris JCA to the Court of Appeal strikes him off from jurisdiction to determine the case.
Query: Governor Wike somewhat has been wielding an unprecedented power since the control of the spread of the COVID-19 pandemic, such acts as demolition of a hotel and detention of pilots. Do you think such powers are reserved for governors?
Stanley Obidiegwu: S.5 of the 1999 CFRN provides that “subject to the provisions of this Constitution, the executive powers of the Federation-
(a) shall be vested in the President and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President or Ministers of the Government of the Federation or other officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being power to make laws.”
The executives maintain the Constitution through an instrument known as an Executive Order. An Executive Order is a directive handed down directly from a President or Governor (the executive branch of the government) without input from the legislative or judicial branches.In order to protect the health and safety of the people of Rivers State, Governor Wike of Rivers State had made an Executive Order. The said executive order contained judicial powers. The Rivers State Governor, Nyesome Wike, according to reports, ordered the arrest of two pilots – Samuel Urgoji and Samuel Buhari – in Port Harcourt over alleged violation of the stay-at-home directive.  Urgoji and Buhari were arraigned in a Chief Magistrate Court on four-count charge, which bordered on illegally flying expatriate oil workers into the state, contravening the Executive Order issued by the Rivers State Governor aimed at checking the spread of COVID-19 in the state. The pilots had been remanded in correctional centre till May 19, 2020. He had also demolished two hotel for  flouting the executive orders.
However, this development, which is more of a constitutional matter, also showed the ignorance and utter disloyalty to statutes by egomaniacs occupying the leadership position – where and when it matters the most. For a fact, the law of the land stands supreme and it should be a no-respecter of persons, including pilots and governors. Anyone that breaches the law should face the music. However, the Nigerian constitution that Wike on two occasions sworn to “preserve, protect and defend” to the best of his ability provides for a nexus between the states and the Federal Government amid devolution of powers, and provisions of Exclusive Legislative Lists where aviation belongs. He ought to know that aviation, including airports, safety of aircraft and carriage of passengers and goods by air is listed as item 3 on the Exclusive Legislative List as contained in Part 1 of the Second Schedule to the 1999 Constitution of Nigeria as amended. The same document, in its 7th Schedule specifically deals with the Oath of Office of Governor of a State and places the duty on the governor of a state to subjugate himself to the President.
In view of all these, Wike erred on the side of the law by enforcing the arrests and detention of the pilots. The person of Wike that has his primary training in law, politics and administration, to become a local government chairman, state chief of staff to a governor, minister of education, governor and husband of a serving High Court Judge, cannot claim ignorance of the law.
Conclusively, the steps taken by Gov. Wike are illegal in that the right to fair hearing as stipulated in s.36 of the 1999 CFRN has been violated. Fair hearing has two limbs and one of its limb is Audi Alteran Patem, that is, the other party must be heard. Though such powers of implementing the Constitution through executive orders are reserved for governors, he has acted illegally by determining the fate of those who flouted the covid-19 orders.
The said executive order or some of its parts are inconsistent with s.36 of the 1999 CFRN  which provides the right to fair hearing. One should also note the supremacy clause in s.1(3) of the 1999 CFRN. The Constitution still overrides any orders or law made by the government.
Query: What will be the legal implications of Ambazonia if it eventually becomes an independent nation?
Stanley Obidiegwu: Cameroon  was  annexed  on  the  11  of  July,  1884  by  the  Germans.  The  territory  comprised  of  a multiplicity  of  ethnic  groups  and  polities  which  varied  in  size  and  administrative  system.  The outbreak  of  the  First  World  War  in  1914  in  Europe  further  complicated  the  history  of  the country:  Britain  and  France  jointly  invaded  German  Kamerun  and  defeated  the  Germans  in  1916. On  17  March,  1916  the  territory  was  partitioned  between  the  French  and  the  British. The  British sphere  consisted  of  two  disjointed,  narrow  strips  of  territory  in  the  west  stretching  from  Lake Chad  to  the  Atlantic  coast  and  bordering  Nigeria.  It  comprised  about  one-fifth  of  the  total  area and  population  of  Cameroon.  The  French  sphere  consisted  of  the  remaining  four-fifths  of  the territory  and population.  In  1922,  the  LON  confirmed this  division and  authorized the  British and French  to  administer  their  spheres  as  separate  LON  mandates,  an  arrangement  which  the  United Nations  later  confirmed  as  UN  trust  territory. The  French  part  of  the  territory  became  known  as French  Cameroon  whereas  the  British  section  became  known  as  British  Cameroons  which comprised  of  British  Northern  and  Southern  Cameroons  and  was  administered  separately  by  the Northern  and  Eastern  Regions  of  Nigeria  respectively.  British  Southern  Cameroons  ceased  to  be administered  as  an  integral  region  of  Eastern  Nigeria  in  1954  when  it  gained  a  quasi-regional status from  Nigeria. In  1959,  British  Southern  Cameroon  became  a  full  Region  of  the  Federation  of  Nigeria. These  arrangements  almost  led  to  the  total  neglect  of  British  Cameroons  in  the  political, economic  and  social  development  of  the  territory. This  led  to  the  rise  of  nationalist  movements in  British  Cameroons  which  later  culminated  in  a  separate  plebiscite  in  Northern  and  Southern Cameroons  on  11  February,  1961.  The  plebiscite  questions  warranted  the  people  to  choose independence  by  joining  either  Cameroon  or  Nigeria.  British  Southern  Cameroon  voted overwhelmingly  to  join  French  Cameroon  which  had  hitherto  gained  independence  on  1  January, 1960  and  became  the  Republic  of  Cameroon.  British  Northern  Cameroon  on  the  contrary  voted to  join  the  Federal  Republic  of  Nigeria.  The  accession  of  independence  and  reunification  of British  Southern  Cameroons  with  the  Republic  of  Cameroon  in  1961  led  to  the  establishment  of the  Federal  Republic  of  Cameroon.  The  constitutional  arrangements  that  later  ensued  known  as the  Foumban  Constitutional  Conference  gave  birth  to  the  Anglophone  Problem.
However, if at the end, Ambazonia succeed in their fight for a separate country, it will be accorded a full right of a state. They will be free to form their own government within their defined territory and finally, they are free to join it’s regional and continental blocs.
Query: What is the diplomatic implication of the destruction of the Nigerian embassy in Ghana?
Stanley Obidiegwu: On the 19th of June, 2020, some Ghanaians demolished the fence surrounding the official residence of Nigeria’s High Commissioner in order to gain access to the land behind it which is in dispute. By their action and inaction, which makes the authorities complicit in the act, the Ghanaian people violated many an article in the Vienna Convention on Diplomatic Relations of 1949 and, therefore, must be sanctioned.  For instance, Article 1(i) of that Convention, specifically, recognises, among other facts, that the Nigerian High Commission in Accra, Ghana, is the premises of the Nigerian State.
Again, Article 22(1) of the same Convention seems to firmly corroborate the above and accentuates its importance when it further declares: “The premises of the mission shall be inviolable. The agents of the receiving State ( in this case Ghana) may not enter them, except with the consent of the head of the mission ( in this case, the Nigera’s High Commissioner to Ghana)”.
As the largest economies in West Africa, Ghana and Nigeria’s diplomatic relationship is crucial to the region and trade is a key part of that relationship.
The complainant simply took the law into his hand by simply taking a bulldozer to the Nigerian Mission in desperate anger and in violation of the diplomatic obligations prohibiting the violation of any diplomatic premise in whatever circumstance.
It is important to note that Nigeria’s relationship with Ghana is defined by bilateral constraints, plurilateral obligations and multilateral suspicions. At the bilateral level, the constraints are largely derived from their common colonial inheritance: English as common lingua franca, common educational system, some common cultural affinities, etc. The factor of common lingua franca and educational backgrounds make it possible for Ghanaians to teach in many schools in Nigeria which used to have more and better employment opportunities.
Besides, there are the factors of highlife music and football competition matches for which both countries were and are still well known. They are factors for improving ties and also straining the relationship. However, rivalry, though a healthy one, has not prevented the many strains and constraints in the relationship, especially under the administration of Alhaji Shehu Shagari in 1983 when the ‘Ghana Must Go’ saga was in vogue. By that time, Ghanaians residing in Nigeria were held responsible for Nigeria’s societal ills, particularly armed robberies and they were declared persona non grata.
Perhaps more interestingly at the bilateral level, is the issue of assaults on commercial shops owned by Nigerians in Ghana. In August 2018 and June 2019, shops belonging to Nigerian businessmen were attacked and destructively looted. In every attack and looting, the Government of Ghana never failed to announce that the culprits would be brought to justice, but such announcement or punishment, if any, had not in any way prevented subsequent attacks and reckless looting.
In opposition to this Casablanca school of thought is that of the Nigeria-led functionalist school, which underscored the need to have African leaders, first of all, lay the foundations for political unity. Kwame Nkrumah of Ghana argued that there should be political unity first, that is, United States of Africa, and all other things shall follow. The Nigerian school, also referred to as the Monrovia school, did consider that many African countries had just gained their flag independence and therefore needed time to, first of all, stabilise before anything else. In all, the Monrovia school eventually prevailed, but the underlying animosity between Nigeria and Ghana has not been easily thrown away into the dustbin of history.
At the multilateral level, the nature of the relationship is not far-fetched to understand. It is predicated largely on suspicions and friendly enmity.
The diplomatic implication of the actions of Ghana are:
1. Substantial loss of information and intelligence on the target state,
2. Reduction in communication capacity and a diminished ability to influence the target state.
3. Economic sanctions
4. It will strain the relationship they have established for a long time.
ABOUT THE AUTHOR
Obidiegwu Chibuzo Stanley is a law student of the University of Nigeria Nsukka, a legal researcher and author.

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