|
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.
|
Posted by Robot| 17.06.2007 16:26