This is a rejoinder to an article written by a learned friend, Alagor Tochukwu Daniel,and published on this link at www.legalideasforum.com on the 1st of June,2020 with the above title.
With great modesty, I cannot but commend my learned friend for his adept and brilliant attempt to upturn an already settled and well established principle of law with his beautiful and scholarly rendition on the subject matter. However, I do not find some of his arguments tenable to sustain his submission. Moreover, some of the authorities he relied on were misconstrued and misapplied,hence, his deficient and indecorous conclusion. My learned friend started his submission by positing in paragraph 9 that: “…When an ouster clause is perceived in a constitution, its intention is to preclude or exclude judicial review ,by striping the courts of their supervisory judicial function, whatsoever under section 6 the 1999 CFRN.
“Entertained” as used in the above section logically envisages that the suit should not even be received for hearing by any court. A court should not even sit to deliberate on the issue as it lacks the jurisdiction. The above postulation, however persuasive, flaws on the basis that It failed to take into cognizance the fact that the court (especially in a democratic system) is saddled with the responsibility of interpreting the constitution, as well as upholding and defending same.
Hence, whenever the court is faced with an ouster clause, it is the responsibility of the court to examine it. This position of the law has enjoyed judicial blessings in plethora of cases which includes, but not limited to the case of Abaribe v The Speaker Abia State House of Assembly (2007) NWLR (pt 788) 466. In that case Per Pats Acholonu(as he then was) held, inter alia, that when the court is faced with an issue of ouster clause, it must examine it to ascertain whether the party invoking it has acted in accordance with the laws establishing that ouster clause. Same was also held in the case of Dapialong v Dariye (2007)8 NWLR (pt 1036)332.
Furthermore, Ikongbe JCA explains the law thus:
“…The first port of call of any court called upon to decide a case is, if any question arises to it’s jurisdiction in entertaining that case, the reliefs sought by the initiator. If the court checks the relief against the constitution and any other valid law,and finds no provision debarring it from doing so,then fair and well”.
The law is also settled that even when the court lacks jurisdiction to entertain a suit, it should be struck out and not dismissed vide Balarabe Musa v Attorney- General of the Federation,Din v Attorney General of the Federation (1986) NWLR ( Pt.17)471. From the above elucidations given by My Lord’s, it follows that my learned friend misconstrued and misapplied the decision in the case of Abaribe v The Speaker Abia State House of Assembly (Supra) when he cited the case in paragraphs 26 of his work. My learned friend also erred in law when postulated in paragraph 17 as follows:
“…To my mind, the judiciary cannot under section 6 of the constitution act mala fide, under the thin disguise of interpretation to obviate a clause provided for in the same constitution which expressly ousts the jurisdiction of the Court. If they do so, they usurp legislative function. A statute which seeks to take away the vested rights or interest ,or which seeks to oust the jurisdictions of the court is construed strictly. See AG Bendel State v Aideyan(1989)4 NWLR(pt 118)646”.
The above argument is in error as it fails to understand that the provision of section 4(8) of the 1999 constitution of Nigeria ( hereafter referred to as the Constitution) vests the courts of law in Nigeria with the power, and indeed the responsibility to see to it that the Legislature excercises their powers and function( whether substantive or procedural) in accordance with relevant provisions of the constitution.
The Supreme Court in the case of Attorney- General Bendel State v Attorney- General of the Federation held, inter alia, that where the Constitution makes provisions as to the mode of excercising legislative powers, then the court is duty bound to exercise its jurisdiction to ensure that the Legislature comply with the constitutional requirements. I respectfully align myself to the wisdom of the Supreme Court.
It is also pertinent, I think, to state that my learned friend also misapplied the case of A G Bendel State v Aideyan (1989)4 NWLR (Pt 118)646, when he relied on it to support his submission in paragraph 17 as reproduced above. In that case, the Supreme Court, Nnaemeka JSC, explained the law thus:“… By accepted rules of construction, words of statute must not be construed together”.
Furthermore, it was held in the case of Ibadan v Adamolekun that no section of a statute should be read in isolation of other relevant sections. It was in lieu of this principle that the court in Inakojo v Adeleke had to look into the sections preceding the ouster clause in section 188(10).
Moreover, it has been settled in plethora of authorities that the provisions of section 188(1-9) constitute conditions precedent to the ouster clause in section 188(10), and full compliance with the former must be demonstrated and proved before any court can say that its jurisdiction has been rightly ousted. See Abaribe v The Speaker Abia State House of Assembly (Supra), Dapialong v Dariye (Supra), Labiyi v Antetiola (1992)8 NWLR (Pt 252)at 163, Sule v Nigerian Cotton Board (1985) LPELR-SC 113, among others.
Also, I will not hesitate to point out that my learned friend based almost all his argument on the application of the literal rule in construing the ouster clause in section 188(10) where he relied on the authorities of AG Bendel State v AG Federation and 22 ORS, AG Federation v Abubakar (2007) 10 NWLR (Pt 1038) among others.
Firstly I would like to state here that the facts of the these cases are very distant and by no way related to the instant case of Inakojo v Adeleke. Secondly, it is pertinent to note that the character of the Courts towards the issue of jurisdiction is usually special and the issue of jurisdiction is most fundamental, hence, any matter that purports to oust the jurisdiction of the court is construed strictly. See the cases of Onyema & 2 Ors v Oputa & Anor, AG Bendel State v Aideyan (Supra).
Furthermore, it is trite law that ouster clauses should not be interpreted or applied in a manner capable of jeopardizing the essences of rights provisions or which is intended to render the right ineffective or illusory. See Dapianlong v Dariye (Supra).
Lastly, it is settled that the law should not be used by anyone (including the Legislature) as an engine for injustice. This position of the law very notorious as it has been seen in plethora of cases, including but not limited to, the recent case of Abuja Investments & Property Development Co. LTD v Paul & ORS (2018) LPELR- 45827 CA. It follows therefore that, where the application of the literal rule will produce manifest injustice and mischief, the mischief rule of interpretation should be employed to eradicate such mischief or injustice and bring to life the true intentions of the draft men as was held in the case of Chief Obafemi Awolowo V Alhaji Shehu Shagari (1978) All NLR 120.
See also Per Denning in the case of Corocraft v Pan African Airways.
In summary, it is no longer news that all governmental powers stem from the constitution. The Legislature, Executive and Judiciary are each allocated their appropriate powers subject to some checks and balances so as to ensure a smooth and effective functioning of government.
To that end, it has therefore been universally recognized and accepted that impeachment procedure (being a political matter) has always been the exclusive affair of the Legislature as specified by the constitution. Consequently, according to Ikongbe JCA in Abaribe v The Speaker Abia State House of Assembly (Supra), Section 188(10) should not necessarily be construed as an ouster clause ousting the jurisdiction of the court,since the court has never had such jurisdiction.Hence, the converse of the Maxim Nemo dat quod non habet ( your cannot take from a person what that person never had).
The learned judge further posited that Section 188(10) should rather be seen as doing no more than underscoring the recognized fact that impeachment process is a political matter that is best left where it best belongs i.e the Legislature.
In light of the foregoing,it is therefore evident that the courts has been right in its interpretation of ouster clauses, and has kept faithful as the principal defenders and guardians of our rich tradition of jurisprudence by upholding the authority and supremacy of the constitution.
ABOUT THE AUTHOR
Oputa A Timothy is a law student of Nnamdi Azikiwe University. He is a legal Reseacher and author
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