Supreme Court Was Wrong - Gani Fawehinmi

As every person now knows, on Thursday, June 14, 2007, the Supreme Court of Nigeria ruled in favor of Governor Peter Obi and re-instated him to the office of Governor of Anambra state.

According to press reports of June 17, 2007, prominent Lagos lawyer and Senior Advocate of Nigeria, Chief Gani Fawehinmi, now argues that the Supreme Court was wrong because it lacked jurisdiction to make the determination.

Below is a reproduction of Chief Fawehinmi’s reasoning:

 “The judicial institutions empowered by the Constitution of the Federal Republic of Nigeria, 1999 to determine whether the tenure of office of any person under the Constitution has expired or ceased are: (a) Election tribunals; and (b) The Court of Appeal if there is an appeal to that Court of Appeal from the Election Tribunals. “Under the 1999 Constitution, the decision of the Court of Appeal in that respect is final. The relevant constitutional provisions are Section 285(1) and 246(3).

{mosgoogle}“Section 285(1) provides:- “285. (1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether- (a) any person has been validly elected as a member of the National Assembly; (b) the term of office of any person under this Constitution has ceased; (c)  the seat of a member of the Senate or a member of the House of Representatives has become vacant; and  (d) a question or petition brought before the election tribunal has been properly or improperly brought.”

“Section 246(3) provides thus:- “246(3) The decisions of the Court of Appeal in respect of appeals arising from election petitions shall be final.” “I will start with Section 285. For emphasis, the pertinent subsection above is 285(1)(b) which provides as follows:- “285(1) There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, have original jurisdiction to hear and determine petitions as to whether - (b) the term of office of any person under this Constitution has ceased”

Why Chief Fawehinmi is Wrong:

Recall that both the Federal High Court and the Court of Appeal in Enugu had ruled that they had no jurisdiction to decide on Governor Obi’s request. His simple request was strictly a legal question of interpreting Section 180 (2) of the 1999 Constitution and nothing more. That provision simply stated:

 "The governor shall vacate his office at the expiration of a period of four years commencing from the date wherein the case of a person first elected into as governor under this constitution, he took the oath of allegiance and oath of office."

There was no factual dispute between INEC and Obi or between any of the interested parties. For example, there was no dispute as to the date Obi took the oath of office, no dispute as to the number of years he actually occupied the office of the governor, no dispute as to whether INEC had conducted a new governorship election in Anambra, and no dispute as to whether INEC had declared a new governor-elect. The dispute was strictly a legal one, a question of interpretation of the cited constitutional provision. In other words, there was no need for fact-finding before legal interpretation. Interpretations of constitutional provisions are questions of law.

Both the Federal High Court and the Court of Appeal in Enugu refused to even rule on Obi’s request on the grounds that they had no jurisdiction. They simply directed Obi to the election tribunal. Obi declined their direction and instead went to the Supreme Court. What Obi was appealing, therefore, at the Supreme Court, was the decision of the Court of Appeal (or, more appropriately, the Court of Appeal’s refusal to make a decision, which, nonetheless, was a decision).

Supreme Court’s Jurisdiction:

The 1999 Nigerian Constitution states:

233. (1) The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria , to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie form decisions of the Court of Appeal to the Supreme Court as of right in the following cases -

(a) where the ground of appeal involves questions of law alone,…;

Decision of the Supreme Court

Since the Court of Appeal in Enugu had refused to exercise its jurisdiction, the Supreme Court, based on its jurisdiction to hear appeals from Court of Appeals, in addition to Rule 22 of the Supreme Court (allowing it not to refer cases back to the lower courts if all relevant materials for making a decision were before it) it went ahead to interpret the simple constitutional provision, a question of law. The rest is history since everyone now knows its interpretation.

What Chief Fawehinmi would have preferred, using his strict interpretation of the constitutional provisions on jurisdiction, was a result whereby the Supreme Court would remand the matter to the same Court of Appeal that had refused to rule, and instruct it to make a decision. Admittedly, that was one option, not the only option. And considering the urgency and novelty of the issue in the annals of constitutional law, the Supreme Court properly took the other option and assumed jurisdiction.  

With all due respect, therefore, to our distinguished learned friend Chief Gani Fawehinmi, I say please join the celebration.

Robot  # 1 | 17.06.2007 16:26

According to press reports of June 17, 2007, prominent Lagos lawyer and Senior Advocate of Nigeri...Read the full article.

igwe  # 2 | 17.06.2007 17:08

Too sad the Senior Advocate of the Masses is ending up like this. Is Gani an empty vessel that makes the most noise after all? I've asked this question on this forum before and wish to ask it again. Now the masses of Ndianambra whose mandate was stolen in 2003 are happy that the sanctity of their vote has been restored and that is why all over most of the state, it has been celebration galore, but not Gani, the senior advocate of the masses. For Gani, a very simple wisdom: how one ends is more important than how one started. Ask OBJ!!!! Starting from now, I'll be ignoring Gani until such a time he again becomes what we all thought he was.

Frisky Larr  # 3 | 17.06.2007 17:20

Wayo Guy Sir, My views on the landmark judgement will be published in NVS on tuesday at the latest. I am not a lawyer and know very little about the details of law. My arguments are based on political scientific and journalistic considerations and that will be clear when my views finally appear here. However, one of your statements attracted my attention: What Chief Fawehinmi would have preferred, using his strict interpretation of the constitutional provisions on jurisdiction, was a result whereby the Supreme Court would remand the matter to the same Court of Appeal that had refused to rule, and instruct it to make a decision. Admittedly, that was one option, not the only option. And considering the urgency and novelty of the issue in the annals of constitutional law, the Supreme Court properly took the other option and assumed jurisdiction. Respected friend, I hold the view that this is representative of double standards. At the time former President OBJ declared the seat of VP vacant, some experts argued that it was one practical option that would have left the VP with the choice of appealing for legal redress at the Supreme Court. This was loudly shouted down as not feasible. It was largely stated that the court alone should have the right to declare the seat vacant. The problem here is that there have been several occasions where the SC has ordered lower courts to perform their duties. Why this over-zealousness to pass an obviously pre-meditated judgment? One gets the feeling that our learned judges are not well versed in the theoretical and philosophical background of the political tradition of constitutional democracy. This is the rationale. Personally, I rejoice with Peter Obi and am happy to see the back of Andy Uba but that is not the way to serve justice in a democratic environment! Something is fundamentally wrong in Nigeria!

Frisky Larr  # 4 | 17.06.2007 17:29

Igwe Sir, Is it too difficult to take an intellectual stance for once and leave emotions aside? Why do you think it will mean any damn thing to Gani Fawehinmi whether or not you (Igwe) choose to ignore his statements Sir? Everyone of us is rejoicing. But after the dust has settled, we should start to take stock of what has gone wrong and how best to proceed.

presidency  # 5 | 17.06.2007 18:02

WayoGuy: Glad that you are back! I read it in the papers yesterday that Supreme Court also clandestinely discharged and acquitted you concerning your Murder trial. I know you will always be grateful to SC for saving your ass from going down:biggrin::lol::lol: My brother, just as you have rightly stated, Gani has fallen into vacuity and hollowness with some his egregiously imbecilic claptraps. Gani, like some deluded Legal practitioners, always conceitedly think that Jurisprudence is esoteric. Law is among the most unambiguous disciplines on Earth. Even if a simpleton, with the ability to read and write, picks up the Constitution and Statutes, he can readily and easily discern and understand their imports. But the reason why the Interpretation of Courts of proper jurisdictions is sought is to put an Imprimatur on this obvious connotation which the provisions of the Constitution states. Gani must be reasoning from a corrugated brain bank to bemoan the decision of the SC. It is now blatant that senility has completely taken over his cerebration of public issues in Nigerian polity. Presidency. P.S: Help me thank your sister ooo. She is really taking good care of me. Thank God I didn't mind that she was pregnant for another man when I still married her.:biggrin:

Land Of My Birth  # 6 | 17.06.2007 18:34

Is this the Gani we all thought we knew or has he been pretending all these years? Can the real Gani Fawehinmi please stand up and identify himself?

No Smoking  # 7 | 17.06.2007 18:38

=Frisky Larr;184481>Igwe Sir, Is it too difficult to take an intellectual stance for once and leave emotions aside? Why do you think it will mean any damn thing to Gani Fawehinmi whether or not you (Igwe) choose to ignore his statements Sir? Everyone of us is rejoicing. But after the dust has settled, we should start to take stock of what has gone wrong and how best to proceed. I was going to just talk about Gani's comments, but here I see other "intellectuals" like Frisky Larr rolling their sleeves for a long write-up. For Gani, some are saying it's senility. Nevertheless, all those like Akintunde who jump in to query or find fault with the SCN verdict are plain and simple attention-seekers. The nation needed a decision on tenure. The foremost authority in the land has given us that decision. Why must the Ganis, Akintundes and Frisky Larrs expect anyone to take their attention-seeking outbursts seriously. Over-sabi nahim dey spoil matter. Give it a rest and save your bag of hot air.

gwobezentashi  # 8 | 17.06.2007 18:50

The Supreme Court was not wrong. There is still something insidious going on in our judiciary. This matter should not have been to court because even an almajiri could have interpreted the constitution correctly but Obasanjo, Ojo and Iwu read books upside down when it suits them. A governor's tenure is for 4 years and commences on the day he is sworn in. What is so hard to comprehend there? In another instance, the Supreme Court ruled that INEC does not have the power to disqualify candidates but Iwu went ahead to issue certificates of return in Anambra, Adamawa, Delta and Kogi States where he had disqualified candidates. Again they are challenging the courts to expose their incompetence and/or rascality and they will in time. The lower courts in the Obi matter who were relying on technicalities to avoid hearing the case invite speculation as to their motivation. We still have a case of a dubious acting CJ in Oyo State creating a crisis of confidence in the judiciary there. Kutigi needs to wield the big stick and rid us of errant judges and he needs to act swiftly to instil confidence. As for Gani, he is welcome to continue to whistle in the dark. His radical views no longer have the spark of intellectual depth to them. I am suprised he did not come out to defend Nuhu's defence of Paul Wolfowitz, the "corrupt" World Bank president and his congolitis. Aluta! Gwobezentashi

tonsoyo  # 9 | 17.06.2007 18:56

=presidency;184491>WayoGuy: Law is among the most unambiguous disciplines on Earth. Even if a simpleton, with the ability to read and write, picks up the Constitution and Statutes, he can readily and easily discern and understand their imports. But the reason why the Interpretation of Courts of proper jurisdictions is sought is to put an Imprimatur on this obvious connotation which the provisions of the Constitution states. : This is the problem with laymen trying to dabble into professional matters. People like you out of ignorance try to literally interpret the letters of the Constitution on every issue. But there is more to law and legal interpretation than what "a simpleton, with ability to read and write..........(can)discern and understand their imports" is the reason some people goto school for many years to learn it and the reason some pay several millions for its interpretation. I am NOT with Gani on this one because I believe that the concept of justice is not just about what is LEGAL but also what is RIGHT. Often times both go together, but where dispensing justice based on legality would directly contranvene what is right, then the latter should be preferred. The usual standard for dispensation of justice is the legality. But since our courts are no longer just courts of law but also of equity both "Legal and Right" should be weighed based on the facts and factored into the equation. This is precisely what the Supreme Courts justice have done in this instance. But does Gani Fawehinmi knows what is talking about Constitutionally speaking? he certainly does. It is highly debatable if that judgment could be defended Constitutionally but on the simple concept of whether it is right , I don't think that it is debatable. This is where you Presidency misfired. You are not trained to judge where he is coming from.

SOC Okenwa  # 10 | 17.06.2007 19:37

Gani! Gani Fawehinmi!! That Lagos-based one-man legal mob!!! You see folks, Gani is a victim of both impetuosity and 'senility'. The degeneration of a hitherto great legal mind has struck us, his admirers right from college, as the final stage of a hero's dramatic undoing of his heroism. Gani acts more now as a confused SAM either in search of an AGF position in government (now that his endorsed presidential candidate, Rtd Gen. Buhari has failed again to withstand the PDP's rigging machine) or seeking to eclipse unwittingly his years of tears and toil as one of Africa's greatest 'legal battle axes'. Long live Fawehinmi but save us the legal sommersaults!

---

The conversation continues in our forum. Click here to read all comments

---