LEGAL IDEAS FORUM

Amadi Rowland Chinedu-Nigerian Judiciary:Matters Arising.

 
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?
 
Amadi Rowland: 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. EXECUTIVE ORDER can only be given to federal or state agencies, who implement it, not to citizens, although citizens are affected by it.
 
There is no specific mention of EXECUTIVE ORDER in the Nigerian constitution, however, an argument can lie in favour of the executive that the power to make EXECUTIVE ORDER is implied in the wordings of S. 5 CFRN
Remember, it is the duty of the executive to implement and execute laws, and the state EXECUTIVE derives its own foregoing power by virtue of S. 5(2) CFRN. Also, section 45 (1) CFRN derogates the fundamental rights in sections 37, 38, 39,40 and 41 for sake of interests of defence, PUBLIC SAFETY, public order, public morality and PUBLIC HEALTH or for the purpose of protecting the rights and freedom of other persons. This derogatory section must be implemented by someone, else, it remains in abeyance and such public interests intended to be protected at moments of emergency, shall be disrupted and public safety becomes endangered. A case in point is the current world situation in this era of CORONA VIRUS DISEASE, 2019 (COVID-19)
 
In the foregoing instances mentioned, it can be adduced that those interests are cases of emergencies which require hasty precautionary measures from the government. These measures usually come from the executive in the form of EXECUTIVE ORDER which at that moment may serve as policies regulating the affairs of men (until the court proves otherwise).
At this moment of emergency, the law recognises the bureaucratic nature of the legislature in law making and the danger which such complicated process may pose, hence, the reliance on EXECUTIVE ORDER to save situations such as this.
 
It is pertinent to note that, where there is a matter of urgency in any given society in which the lives of the citizens are at risk, the head of the executive can through an EXECUTIVE ORDER, declare policies to regulate and sustain such moment of emergency. Sometimes it comes in the form of a CURFEW. Recall RIVERS STATE under erstwhile governor CELESTINE OMEHIA during the militancy days, and some parts of BORNU STATE under erstwhile president GOODLUCK JONATHAN during the preeminent reign of BOKO HARAM in those areas.
 
It is noteworthy that, anyone found flouting the orders is dealt with according to the provisions of those ORDERS, and any other which the court deems proper. See LAGOS STATE GOVERNMENT V FUNKE [2020]
The nature of the urgency and its cause determines the level and length of punishment to be given. LAGOS STATE GOVERNMENT V FUNKE [supra]
 
The exigency of that of COVID-19 pandemic is one that has brought the world to a standstill, and the executives all over the world have invoked the EXECUTIVE ORDERS for the health safety and public interest of their citizens. This is because the legislature cannot be allowed to sit for deliberation on any bill to be passed as a law as it pose a danger and threat not only to their lives, but that of their family members and relatives and the entire populace. Also, it will amount to the bridging of the advice of SOCIAL and PHYSICAL DISTANCING recommended by the medical personnel in a bid to curtail this ravaging pandemic.
 
Never had the world of today with the people in it experienced this kind of disturbing situation where all we cared and thought was survival at all cost, while in war with an unknown enemy; Covid-19. Even the framers of the CONSTITUTION envisaged this kind of war; where sitting together to take stringent measures against the enemy, will amount to putting you in the enemy’s territory, hence, S. 45 ibid.
 
Strikingly, the duty of the court is one that remains with it. That is why even during military regime, the legislature will be subsumed into the executive but the court remains alive, separated and independent. That is why S. 36 CFRN was not derogated by S. 45 ibid, because the essence of the court is FAIR HEARING which is the cardinal pillar of the law and natural justice as seen in the case OLATUNBOSUN v. NISER [1988] 3 NWLR (Pt. 80) 25, where the Supreme Court per Oputa JSC (as he then was) opined that, God gave you two ears, hear the other party also.
 
On the demolition of the Prodest Hotel, the Rivers State governor, CHIEF BARR NYESOM EZEBUNWO WIKE did unduly what he has due powers to do, by not taking recourse to due process. He acted as both the executive and the judiciary which is against the provisions of the CFRN. See sections 5(2) and 6 ibid. The said hotel is registered, so the governor at best can take the hotel to the court demanding its demolition for the danger its existence poses in this period or lift the veil of the hotel to enable him capture those committing the alleged crime(s) with the hotel and have them prosecuted by a competent court. Also, he can utilise the both options at the same time.
Similarly, the arrest of the pilots by Governor Wike is in line because such measure is geared towards utilising any means possible, to curtail the spread of the killer Covid-19 pandemic. 
 
However, he lacked the powers to mete out any punishment as stipulated either by his EXECUTIVE ORDER or any other law. Legally, all he needed to do was arraign him before any competent court for violating the EXECUTIVE ORDER and allow the court to direct him on the next line of action through its judgement.
Conclusively, while the governor has the power to do anything reasonable in the fight against the dreaded Covid-19, his actions must be reasonably justifiable in a democratic society and should not amount to ultra vires act.
 
Query: What is your observation in the judgement delivered in the case of the Federal Government against Sen Orji Uzor Kalu?
 
Amadi Rowland: Section 249 (S. 249) of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, (CFRN) as amended provided for the existence of a Federal High Court while S. 253 ibid provides for the constitution of the said court, which it states to be at least one Judge.
 
Also, section 396 (7) ADMINISTRATION OF CRIMINAL JUSTICE ACT (ACJA) provides that “Notwithstanding the provision of any other law to the contrary, 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, only for the purposes of concluding any part-heard matter, pending before him at the time of his elevation and shall be concluded within reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal”
 
Recall that, for a court to exist it must be created by law and such law creating it must ascribe its powers/jurisdiction to it upon which it shall function. More so, such jurisdiction includes among others, subject matter, constitution of its members etc. which are among the cardinal elements of jurisdiction as outlined by the Supreme Court in the celebrated case of MADUKOLU V NKEMDILIM [1963] 2, SCNLR, 34. Without these a court would be said to have sat improperly and all its judicial journeys (if any taken), however meticulously and beautifully taken, shall be all journeys in futility.
 
Most worthy of note, is the fact that the CFRN is not an Act of the NATIONAL ASSEMBLY (NASS) rather, a grundnorm (mother law) which gave birth to the NASS and as such the NASS cannot override its provisions through whatever means. This implies that, any Act of the NASS that conflicts with the CFRN must give way or abate forever. See ITSUELI V SEC [2012] 2 NWLR (Pt. 1284)329, 362; INEC V MUSA [2003] 3 NWLR (Pt. 806) 72.
 
Further, the Judge is the Court and the Court, the Judge. Therefore, a Court of Appeal Justice remains one and is bound by its jurisdiction as ascribed to it by the law creating it. Similarly, this principle applies to the High Court and any other court created by law. No law, can change the nomenclature of any court aside the law creating it, and any law that makes such attempt shall have its life cut off/short by the mother law creating the court.
 
The ACJA created no court, as such, has no legitimacy to give power or jurisdiction to any. In essence, it has no power to change a Court of Appeal Justice to a High Court Judge and where it makes such attempt, it shall be inimical when placed side by side with the provisions of the CFRN that created the court and the CFRN shall suffocate it as stipulated in S. 1(3) CFRN.
The above section of the ACJA (S. 396 (7)) in clear terms is in conflict with S. 253 of the CFRN and to that effect, shall continue to remain null, void and inoperative. See S. 1(3) ibid and PDP V CPC [2011] 17 NWLR (Pt. 1277) 485, 511, where the Supreme Court per FABIYI JSC opined that “The constitution of Nigeria is the grundnorm, otherwise known as the basic norm from which all other laws of the society derive their validity. Each legal norm of the society derives its validity from the basic norm. Any other law that is in conflict with the provision of the constitution must give way or abate”.
 
The conflict occasioned in the above provisions of the ACJA and CFRN was given a judicial remedy by the Supreme Court in the case of UDE JONES UDEOGU V FEDERAL REPUBLIC of NIGERIA (FGN), ORJI UZOR KALU (OUK) and SLOK NIGERIA LIMITED, where the court declared the section as non-existent because it conflicted with provisions of the CFRN. According to the learned Hon Justice Ejimbi Eko who read the lead judgment: “The parties particularly the Appellant, seem to think that the President, Court of Appeal, on 2nd July, 2018, issued his ‘FIAT/Permission’ to Hon. Justice M.B. Idris, JCA, ‘to conclude the part-heard criminal matter-‘ pursuant to and in furtherance of Section 396 (7) of the Adminstration of Criminal Justice Act, 2015, and not Section 396 (7) of the non-existent Criminal Justice Act.2015”
 
Glorifying the above decision is CHIEF MIKE OZEKHOME (SAN) who is one of the leading opponents of the Section 396 (7) of ACJA. In what seems like a victory song, the learned silk after the Supreme Court’s judgment said in a statement that: “Some people talk politics. Other dwell on sentiments, fiction and propaganda. Most humbly, I talk law, based on facts. Cold, hard facts. History guides me. Posterity is the judge. Events always vindicate me. This has been the trajectory of my life, Almighty God, I thank you”
 
Placing S.36 (9) CFRN side by side with the judgement of the Supreme court, OUK has no defense hinging on the above section. This is to the effect that, he has not been tried by any competent court with jurisdiction to do so, and as such cannot be said to have been convicted and have served his sentence or been acquitted.
The acclaimed court which tried him at that time the supposed trial happened, was not a court properly so called as it lacked all the chains of what makes up jurisdiction as outlined in the case of Madukolu v Nkemdilim (supra)
 
The court was aware of situations like this when it in its vision and wisdom encapsulated in Macfoy v UAC [1962] AC, 153, that you cannot put something on nothing and expect it to stand. The decision of the High Court per MOHAMMED IDRIS LIMAN who was at that time a Justice of Court of Appeal, could not stand as it lacked the jurisdiction to give such decision.
 
The decision of the supreme court is to the effect that, OUK in the eyes of the law has not been tried by any competent court of law, which is the reason it ordered for a fresh trial/retrial.
Advisedly, he has a right of action against FGN for damages for wrongful imprisonment or whereupon trial he is found guilty, the numbers of weeks spent already can be subtracted from that the court would assign to him.
 
Query: What will be the legal implications Ambazonia if it eventually becomes an independent nation?
 
Amadi Rowland: The becoming of a state by an organisation or group of persons is like a circle revolving around itself. It starts with a person, and another joining to form a union. Jointly, adding more person through procreation to form a family, a clan, a village, a state (as in the case of unit states in Nigeria), then finally to a state as a legal entity.
 
For any territory to qualify as a state, the law must pronounce it to be so subject to its qualification. The law has over time set out characteristics which a territory must possess in order to qualify as a state, else, it remains a movement. For instance, PALESTINE in the eyes of the law is not a state, but a movement. It is referred to as, PALESTINE LIBERTY ORGANISATION (PLO). Similarly, the same applies to INDIGENOUS PEOPLE OF BIAFRA (IPOB).
 
Notably, a nation must possess attributes such as, DEFINITE TERRITORY, POPULATION, GOVERNMENT AND SOVEREIGNTY to be called a state, legitimately. Upon the foregoing, the State shall have legitimate power to run its affairs, be protected from external interference and shall not be subjected to another sovereign. This is the law both internationally and within our jurisdiction. Stretching the argument further, S. 292(2) CFRN forbids a retired judicial officer from practicing as a legal practitioner, because a sovereign is not subject to another sovereign. Prior to now, a state enjoys absolute sovereignty, to the extent that, where it breaches trade rules that affects the rights of others, the invocation of sovereignty could exonerate it. This was backed by a common law doctrine which reads, REX NON POTEST PECCARE (the KING can do no wrong) and was further recognized by the ENGLISH CROWN PROCEEDINGS ACT, 1947.
 
Receptively, by virtue of S. 45(1) INTERPRETATION ACT (CAP 89) LAWS OF THE FEDERATION AND LAGOS, 1952, the common law principle of non-impleading of the state in its court became part of Nigerian law. So in RANSOMKUTI V AG FEDERATION [1985] the Supreme Court per ESO JSC, said, “at common law, the principle of REX NON POTEST PECCARE (the KING can do no wrong)applies. The state or crown enjoys immunity from legal actions and could not be impleaded in its own court for the tortuous acts of its servants. Thus, if the state did any wrong, it could not be sued, it was its agent or servant who committed that wrong on behalf of the state that would be liable personally”.
 
Although, this common law principle of state immunity from tortuous liability has been abolished in ENGLAND by virtue of S. 2 CROWN PROCEEDINGS ACT, 1947, the abolition does not apply in Nigeria by virtue of it not being a STATUTE OF GENERAL APPLICATION which are laws made in ENGLAND on or before 1 January, 1900, that are applicable in Nigeria.
 
Nonetheless, in our own jurisdiction, S. 6(6) CFRN, which vests the judicial powers of the state in the courts, has removed and abolished the common law doctrine of absolute state immunity from tortuous liability. That is why the immunity provided for by S. 308 CFRN for the President and his Vice, Governor and his Deputy are for the persons i.e. the occupiers of the office and not the office which is the state. This means that, the occupiers of the offices can be sued on a representative capacity as President and Vice, or Governor and Deputy and not on a personal capacity. Further, the offices aforementioned can be sued but the persons occupying such offices cannot be sued while they serve in such offices.
 
Since, the law moves with the dynamic or changing society as said LORD DENNING in JORDAN V MONEY [1854] UKHL J5010 ER 868; [1854] LR 5 HL 185, the sovereignty of the state has moved from absolute to qualified. Hence, the court voiced per LORD DENNING in TRENDEX V CBN [1971] 1, QB, 529, when a state leaves its primary duty of providing security for its citizens and engaged in trade. Whatever rules that apply in trade must apply to the state. And if the state fails or breaches any trade rule it shall be liable.
 
The implication of a statehood includes the enjoyment of rights and privileges such as bilateral agreements with other states, being signatories to existing international charter and agreement of international organisations and to be bound by such agreements (pacta sunt servanda), establishing its embassies and consulates with other states it shares diplomatic ties with and power to sue and be sued in the country that recognises its statehood and share diplomatic relations.
In conclusion, where AMBAZONIA qualifies and becomes a state, what applies to a sovereign state as explained above shall apply to it.
 
Query: It’s believed that a governor and his deputy are elected with a joint ticket, what happens when one of them defects to another party?
 
Amadi Rowland: S. 36(8) CFRN provides that, “No person shall be held to be guilty of criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed”.
When the constitution made defection to another political party, by an elected member, an offence and attached punishment to it, it was clear on the category of persons to bear that cross. That is why the constitution did not mince words in its provisions in S. 109(1) which reads, “A member of a House of Assembly shall vacate his seat in the House if”- (g) “being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected; Provided that his membership of the latter political party was not as a result of division in the political party of which he was previously member or of a merger of two or more political parties or factions by one of which he was previously sponsored.
 
It is noteworthy, that the prior principle applies also to the two houses of the National Assembly as seen in S. 68(1)(g) CFRN.
Further, the Supreme Court in AG FEDERATION V ABUBAKAR (infra) held that “It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed have made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice President or even for the President. If the legislators had intended the Vice President or even the President to suffer the same fate, they would have inserted that provision in clear terms. The intention of the legislators as clearly expressed in sections 68(1)(g) and 109(1)(g) cannot be built into the provisions of section 146(1) CFRN“.
 
Please note that, the antecedent principle backing the President and the Vice President is also available to the Governor and the Deputy Governor.
 
Before, an election into the offices of Governor and Deputy Governor, the candidates for such offices are seen as one and therefore inseparable because they are vying for those offices with a single/joint ticket. What affects one affects the other. It was in the light of the above, that the constitution in S.187(1) declared that, a person for the office of Governor of a state shall not be deemed to have been validly nominated for such office, unless he nominates another candidate as his associate (i.e. his deputy), and that candidate can only be said to have been duly elected as Deputy when he has been duly elected as Governor.
 
Generally, everyone is personally liable for his act which amounts to a crime. However, in the case of a Governor and his Deputy, they share responsibility before being elected and SWORN into office, as what affects one affects the other. A practical case scenario was that of DOUYE DIRI V DAVID LYON of BAYELSA STATE where a governor who was elected and awaiting swearing in, shared in the criminal responsibility of his Deputy for certificate forgery and was disqualified.
 
Affirming the preceding is S. 187(2) CFRN which provides that, “The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of the Deputy Governor as if references to Governor were references to Deputy Governor”.
 
However, once a governor and his deputy are validly elected and SWORN into office, they become separated and individually responsible to their acts and omissions. What affects the office of one will not affect another, except where the other participated, gave consent, conspired, or is aware of the act, then he shall be a party to the offence and shall be jointly liable with the other. See S. 7 Criminal Code Act.
 
Imperatively, any act of defection either jointly or separately, shall not affect the legal status of any as Governor or Deputy, and it is immaterial that they were elected on a single and same ticket and platform. Any act which shall amount to gross misconduct on any of them, hence, causing or necessitating removal of either, shall affect his office personally except, where such act was committed jointly. See sections 188 and 189 CFRN.
 
Thereupon, the Supreme Court in AG FEDERATION V ABUBAKAR [2007] 10 NWLR (Pt. 1041) 1, per ADEREMI JSC observed that, “Had the lawmakers been minded that punishment or consequence of political cross-carpeting should be applicable to the President or Vice Presidentas they have done in respect of a member of the Senate or of House of Representatives or even a member of House of Assembly in the aforesaid provisions of sections 68(1)(g) and 109(1)(g) respectively which I have quoted supra they would have stipulated same in an unmistakable term in section 146 of the 1999 constitution”.
Conclusively, where a Governor or Deputy Governor defects to another political party, it shall not affect his legitimate status of this position, neither will it affect that of the other.
 
 
About the author
AMADI ROWLAND CHINEDU, a native of UMUKERENYI, APANI in IKWERRE LOCAL GOVERNMENT AREA of RIVERS STATE is a Law Undergraduate of the prestigious RIVERS STATE UNIVERSITY (RSU), PORT HARCOURT. He is an emeritus HEAD OF CHAMBERS OF THE HONOURABLE JUSTICE NIKI TOBI CHAMBERS, and a former PRESIDENT OF THE CATHOLIC LAW STUDENT ASSOCIATION OF NIGERIA(CALSAN), RSU CHAPTER.
He is a prudent researcher and an ardent lover of law with numerous academic and non-academic credits to his name.
 
 
 
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