As one who has been schooled in the nuances of constitutional law, under the watchful eyes of A.B Chiafor, a notable scholar of law in the prestigious faculty of law Abia State University; I seek to reconsider the ground-breaking decision(s) of the Supreme Court in respect of judicial interference in legislative proceedings, in matters relating to the removal of executive heads in the case of Inakoju V Adeleke (2007)4NWLR (pt 1025)423. ( A similar decision is seen in the case of Diapialong V Dariye.)
It is entirely appropriate to encourage and acknowledge the works of a law expert, Mr. Possible Esq in his article, Reconsidering the Ouster Clauses; Inakoju v Adeleke vis-à-vis the need to espouse the supremacy of the Constitution, without which research for this article would have been far more stressful.
It is no longer news that the 1999 constitution of the Federal Republic of Nigeria (as amended) like its predecessor, the 1979 constitution, contains provisions which literally oust the jurisdiction of the courts in Nigeria from interfering with or intervening in matters relating to the removal of executive heads by members of the legislative arm.
The constitution thus, precludes the court from entertaining suit relating to the removal proceedings of the president ,vice president, Governors, & Deputy Governors conducted by the National Assembly or the State House of Assembly under section 143(10), 188(10),1999 Constitution of the Federal Republic of Nigeria ( as amended) hereinafter referred to as 1999 CFRN.
Obviously the controversy that has pervaded the legal spectrum has always emanated from the shenanigans of the state Houses of Assembly acting Mala fide in the exercise of their legislative function of removing executive heads, based on an alleged offence of gross misconduct.
It is now more of a child’s play as the legislature carry out their duty in these sections of the constitution with all ease and comfort like an English man will always sip coffee on his breakfast, thereby frustrating the very intendment of the law.
For better appreciation of this provison, there is need to reproduce the provision of section 188(10), 1999 CFRN which states that ; “No proceedings or determination of the panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court.”
To wit, what the above section contemplates is that any suit at all ,as much as it relates to the removal proceedings conducted by the legislature should not be entertained or questioned by any judicial body whatsoever. To this end, it no longer becomes a judicial business.
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. However,the legislature have over the years cashed in on the above section to perpetrate inordinate actions against the executive arm, being in the know that the court cannot intervene in such a matter.
This malicious action came to the fore in the well known case of Alhaji Musa Balarabe v Kaduna State House of Assembly. In that case, the House of Assembly, Kaduna in 1981 conducted impeachment proceedings on the Governor ,Balarabe Musa. Aggrieved at the impeachment and also in a bid to restore himself back to his position, he ran to court .The court declined jurisdiction relying on the ouster clause in section 170(10) of the 1979 CFRN ( similar to s.188(10) CFRN 1999. ) and thus, the court struck out the suit on the ground that its jurisdiction have been ousted by the constitution.
This malicious action continued not until the supreme court decided to restore sanity to legislative bodies on account of their indecorous actions in the celebrated case of INAKOJU v ADELEKE (2007)4 NWLR(pt 1025)423. Truly, the court in this case was on a rescue mission . In that case, 18 members out of 24 members of the Oyo state House of Assembly converged in a hotel in Ibadan to remove the Governor, Rashidi Ladoja. The 18 unscrupulous law makers commenced impeachment proceedings in the hotel and stood to declare the official removal of the governor from office. The supreme court decided to entertain the suit and held that sub section 10 of section 188 cannot be read in isolation, and maintained that the whole sections of 188 must be read together. The legislature could not rely on an ouster clause in subsection 10 of section 188 when the procedures set out in the preceding subsection 1-9 were not religiously followed. This was indeed, a ground-breaking decision by the supreme Court.
Similarly, in the later case of DAPIALONG V DARIYE (2007)8 NWLR (pt1036)332,
the court went ahead to declare the removal of Joshua Dariye, the governor of plateau State as unconstitutional and illegal and held per Onnoghen JSC thus: “It is true that section 188(10) of the 1999 constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or Deputy Governor ,but that must be subject to the rule that the legislature in conducting their impeachment processes complied with all the constitutional requirements needed for the impeachment as the courts have the jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not.”
Legal opinion adduced towards the above decision(s)
Just as the legal expert, Mr. Possible Esq had opined in his article already referred to above, I do not personally have a problem with the decisions of the supreme court in the above cases. It is of interest to every sane member of the legal community and the society at large that justice is done. Just as the learned friend had written that if the legislature had they been left to frolic about by indecorously removing of executive heads, it would have made a mockery of the judiciary and judicial processes.
However, it has to be considered whether the position adopted by the apex Court is the truest interpretation of section 188(10), a similar provision in section 143(10)1999 CFRN(as Amended). How do we in fact reconcile judicial interference with the unambiguous provisions of section 188(10)?
Interestingly, the court’s ground-breaking decisions in the above cases have presented a major point i.e, where the procedures needed for the impeachment have not been religiously followed or complied with ,or where the procedures are otherwise laughably, the court will assume jurisdiction and intervene to declare the process unconstitutional.
The above proposition leaves me with a lot of questions to ponder on, which the jurist in his article had also reproduced. The questions are: How should the court know if the procedures were religiously followed or not ? Does the court preempt that the legislature followed due process even before it comes to court for determination? How does the court in fact fathom the constitutionality or otherwise of the removal proceedings if not by entertaining the matter to the dispute and then interpreting the law to that effect which is in breach of section 188(10) of the 1999 CFRN? The sections in question suggest that the court should not entertain the suit entirely nor think of deliberating on it.
A court of law can only be sure that the removal was valid when it has ascertained the facts of the dispute and then interpreted the law to that effect. It therefore means that the court in entertaining the dispute in both Inakoju’s and Diapialong’s case has undermined the phrase ‘Entertain or Questioned’ as used in the above subsection. A sane mind may argue on the other hand that the judiciary cannot necessarily be said to have violated the constitution since they are the custodians of the constitution and thus, the interpretation they give to a statute that’s what it is.
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 S.C.
Kutigi,JSC speaking for the Supreme Court in the case of AG Ondo State v AG Ekiti State (1951)2A.ER 839 cited with approval the House of Lords decision in Major v Newport Cooperation (1952) AC 189 where the Privy Counsel held thus “It is a cardinal principle of interpretation that where in their ordinary meaning, the words of a statute are themselves precise and unambiguous, then, no more can be necessary than to expound those words in their natural and ordinary sense. It is the duty of the court to interpret the words of the law maker as used. Those words may be ambiguous ,but even if they are, the powers and duties of the court to travel outside them on a voyage of discovery are strictly limited”.
“Where the language used in a provision of a statute or of the constitution is plain and unambiguous, effect must of necessity, be given to that plain ordinary meaning. It is that clear and unambiguous language that best conveys the intention of the lawmakers”. This was held by the court in AG federation v Abubaker(2007)10 NWLR(pt 1038)put To this effect, the legislature has said what it means and means what it said .
According to Lord Esher in Seaford Court Estate ltd v Asher, “If the words of an Act are themselves clear and precise, you must follow them even though they may lead to a manifest absurdity. The court should not be bordered about with whether hardship would result or not.”
The principles of interpretation does not allow the judge some creativity of unduly sacrificing the rule of law to the judge’s intuitive sense of right and wrong as the basis of its decision. See Thompson v Goold &co (1910)AC 409 at 420
More interestingly, the general principle for the interpretation of our constitution was laid down by Andrew Obaseki JSC in the case of AG Bendel State v AG Federation and 22 ors where he stated among other things that In the construction of our constitution, effect should be given to every words. Where a specific provision of a statute are opposed to the general provision, the specific provision will prevail. Where the language of the constitution are themselves clear ,precise and unambiguous ,it must be given its plain evident meaning. Where those words are plainly and distinctly , there is no occasion to have resource to any other means of interpretation.
If the constitution provides clearly that such legislative proceedings should not be entertained or questioned ,then what further interpretation could be given to such a glaring provision? That section by ousting the jurisdiction of the court, has also precluded them from interpreting that very section after all. Thus, a court have to have jurisdiction before interpretation can take place .
It is my view that the supreme Court in the above cases have done the right thing by circumventing due process. This will not augur well for our jurisprudence, the need to respect the constitution remains sacrosanct, so as to the need to do justice.
In the earlier case of Abaribe v The Speaker of Abia State House of Assembly (2002)14 Nwlr (pt 788)466, the respondents commenced removal proceedings on the Appellant who was then the Deputy Governor. The High Court raised the issue of jurisdiction and on further appeal to the Court of Appeal , Pat Acholonu JCA (as he then was), speaking for the Court of Appeal struck out the suit and upheld the decision in Balarabe’s case. The learned justice of the court of Appeal went further pontificating that: “the worrying aspect of this all embarrassing provision seems to imply that the court may not even look into the issue as to whether the duly laid down procedure were followed”.
What the learned justice had said is the truest interpretation of section 188(10). However, it may not have been the intendment of the law makers as they never intended to give the legislatures scorpions & whips to chastise executive heads. The court of Appeal may not have done justice but they followed the obvious interpretation of the law.
To this end I adopt the words of a mighty jurist,an expert in law (Mr. Possible Esq),in his article, Reconsidering the ouster clauses; Inakoju v Adeleke ,vis-a-vis the need to espoused the supremacy of the constitution to suggest that such an action by the supreme Court carries death wounds on its face.
I agree with him when he rightly suggested that the lasting solution can only emanate from an amendment of the ouster clause to give the court’s jurisdiction to entertain such suits.
I also agree with him when he rightly suggested that motion should be moved to occasion an amendment in the constitution and fully involve the judiciary in matters relating to the removal of executive heads as this will ensure that the judiciary will have a right to entertain and determine such suits with a fine tooth comb.
ABOUT THE AUTHOR
Daniel Alagor (CIArb) is a student judge, and a 400l law student of the Abia State University.
He is the Founder & Lead Partner of TheLI ,the largest student law firm in Nigeria and a virtual resource hub for law students and lawyers across Nigeria and AFRICA.
For knowledge and Justice