 Published
April 20th, 2010
This treatise is intended as a legal analysis
of the stay of proceedings issued by CJN Katsina-Alu/Supreme
Court on the matter of the ‘second’ Sokoto governorship
election petition (Dingyadi vs. Wamakko) still lying
before the Court of Appeals. The Supreme Court waded into
the case because, just about when the case became ripe for
final decision, Wamakko raised a constitutional issue under
Sections 295 and 36 of the Constitution in addition to the
weighty allegations of partiality he brought before the
National Judicial Council (NJC) against the President of the
Court of Appeals (Justice Salami) and five other Justices.
The Supreme Court action has ignited a cesspool of
controversy, pitting lawyers against lawyers; and most
worryingly, CJN Katsina-Alu against PCA Salami.
Now, you may ask: How did this case come to
this pass? Well, the case has come two full cycles from when
it first began in 2007 with Dingyadi’s ‘first’ challenge of
Wamakko’s electoral victory in court; and ultimately
succeeded in getting the election annulled on his pleadings
that the election was marred by irregularities and that
Wamakko was unqualified to contest. However, the court also
ordered that Wamakko was eligible to contest in the re-run
election. The re-run came and Wamakko prevailed (again). But
it riled Dingyadi that the same Wamakko that was ruled
unqualified for the 2007 election was also, by the same
judgment, permitted leave to be a candidate in the re-run
election. So, rightly or wrongly, Dingyadi proceeded to the
High Court to test the efficacy of the judgment.
So, in effect, and as was revealed by the
particulars of his pleadings, Dingyadi was asking the High
Court to amend, reverse, vary (or interpret) the judgement
of a higher court – the Court of Appeals – by striking out
Wamakko’s name as a candidate in the rerun. Thus, by its
very nature, it is not in dispute that Dingyadi’s High Court
action raised myriad ‘questions as to the interpretation
or application of the Nigerian Constitution’, as it
bears on the important question of jurisdiction and
hierarchy of Federal Courts. You might also add other
‘questions of law’, such as the principle of ‘res judicata’
(simply put: the matter is closed); ‘collateral
estoppel or issue preclusion’ (we have decided this issue
before or another court has); and the ‘doctrine of
finality’. Expectedly, therefore, for one or more of these
reasons, the High Court declined jurisdiction (or dismissed
Dingyadi’s pleadings as lacking merit). Whereupon, Dingyadi
proceeded to the Court of Appeals, thereby raising another
‘question as to the interpretation or application of the
Constitution; and that is: Whether a Court of Appeal of
coordinate jurisdiction (the Sokoto Division) breached the
Constitution by admitting and proceeding apace with judgment
on a case that contained issues finally and previously
resolved by another (and sister) Court of Appeal (the Kaduna
Division)?
With these rapid-fire developments in view,
something had to give and it did, just recently. Something
had to give because, in the first place, Dingyadi (and the
Sokoto Division of the Court of Appeal), have, by the many
“question(s) of interpretation and application of the
Constitution” lying before the court, opened the door to a
possible trigger of special Supreme Court proceedings under
Section 295 (3) of the Nigerian Constitution. And because,
from the many of his objections overruled by the Court of
Appeals and more, Wamakko now formed credible grounds to
suspect partiality; plus, he tagged along a serious claim,
under Section 36 of the Constitution, that a breach of his
fundamental rights to fair hearing was afoot. You can’t beat
all these combinations. Rather, you have to address them.
And that was precisely what CJN Katsina-Alu was trying to
do.
We all know that a litigant takes one or two
actions when he suspects partiality or breach of his
fundamental human rights. For one, the litigant may approach
the administrative head of the court (in this case, Justice
Salami, the President of the Court of Appeals or the one
before him) to request recusal of the Justice(s) he
suspects. This, Wamakko did but he was, again, overruled;
and to make matters worse, the Court of Appeals announced a
near date certain for rendering a final (and un-appealable)
judgment. And hear this: there was potent (and credible
rumours, if you will) that Wamakko, by the dint of the
imminent judgment, will fall as Governor and Dingyadi will
take his place, which, by all means, is a serious legal
injury any reasonable Governor will take lawful steps to
prevent by even going as far as asserting a claim un Section
36 of the Constitution. And because Wamakko felt frustrated
by the Court of Appeals, he proceeded to take another action
allowed a litigant under the Nigerian Constitution – he
brought petition before the NJC against the President of
Court of Appeals and the five Justices he suspects. That
brought the integrity of the court into serious question.
And that cannot be left hanging in any responsible society
that cares about law and order (or rule of law). So, here
again, someone in authority has to address those issues.
That someone is CJN Katsina-Alu, acting under the colour of
his ‘dual’ authority as Chief Justice and Chairman of the
National Judicial Council (NJC).
At the meantime, Wamakko had moved the Court
of Appeals under Section 295 of the Constitution to ‘refer
the question(s) of interpretation and application of the
Constitution’ to the Supreme Court. It was plausible that a
summary reference on the considered motion of the court or
prayers of Wamakko would have sufficiently addressed
Wamakko’s concerns with partiality or integrity of the
proceedings. Yet, in a very unwise and troubling move, the
Court of Appeals denied Wamakko’s Section 295 motion, which
thus set the stage for Wamakko to be within his rights to
bring two separate actions before the Supreme Court. First,
he can invoke and sustain Supreme Court ‘appellate’
jurisdiction to review the Court of Appeals denial of his
Section 295 ‘request for a reference’. Under Section 295
(3), such a denial is an ‘opinion’ and thus immediately
appealable to the Supreme Court. And second, Wamakko can
invoke and sustain Supreme Court ‘original’ jurisdiction
under Section 36 of the Constitution. Any two of these
actions, once the Court of Appeals is on express (or even
constructive) notice, will operate as automatic stay of
further proceedings lying before it. Yet, on the hackneyed
theory that it had ‘exclusive’ jurisdiction, the Court of
Appeals ignored all these (plus the live NJC petition) and
proceeded with the case; thus forcing CJN Katsina-Alu to
spell things out by ordering a stay. The CJN is in order.
In contra, Dingyadi now argues (to the Court
and the Nigerian public) that the Supreme Court/CJN erred by
asserting jurisdiction over a ‘governorship election
petition upon which the Constitution says it has no
jurisdiction’. Facially, an objection raised against Supreme
Court jurisdiction on grounds of this plain (and trite)
constitutional provision of ‘exclusive jurisdiction’ would
appear to have some merit. But as we will presently see,
perhaps, the sole purpose of a Section 295 (and 36)
proceeding is in direct opposite, and that is: Both Sections
(or at least 295) are meant as an occasional and limited
exception to the exclusive jurisdiction of the Court of
Appeals as the final court for hearing certain cases, not
just a governorship election petition. This is because
Section 295 is both narrow and broad in its provisions (and
application). Narrow, because once the Supreme Court
addresses the ‘limited’ Section 295 issue raised, it sends
the parent (or substantive) case back to the Court of
Appeals. No usurpation there. So, Dingyadi and those holding
brief for Justice Salami are dead wrong. On the other hand,
Section 295 is broad because, once the conditions for its
invocation are met; no case that lies before the Court of
Appeals is excluded or saved, including a governorship
election petition case, as in this instance.
By now, you might be wondering what this
Section 295(3) is all about. So, let us see what it says,
which goes like this: “Where any question as to the
interpretation or application of this constitution arises in
any proceedings in the Court of Appeal and the court is of
opinion that the question involves a substantial question of
law, the court may, and shall if any party to the
proceedings so requests, refer the question to the Supreme
Court which shall give its decision upon the question and
give such directions to the Court of Appeal as it deems
appropriate”.
Keep in mind that the process Wamakko filed
under Section 295 before the Supreme Court is not a direct
and absolute appeal of a ‘governorship election’ petition
over which it is not in dispute that the Supreme Court has
no jurisdiction; rather it is a single-issue, narrow appeal
of Court of Appeals decision or opinion on a ‘question that
borders on the interpretation of the constitution’, which
immediately triggered Supreme Court jurisdiction regardless
of any other constitutional provision purporting to the
contrary. But in fairness to Dingyadi, it would appear
(again) that simply because Supreme Court has no
jurisdiction over governorship election petitions
simpliciter, it also means (to him) that such ouster of
jurisdiction is total and absolute to the point of leading
Dingyadi, on the assumption that he was poised for victory,
to argue that the Supreme Court has wrought him injustice by
admitting Wamakko’s appeal. I will disagree, and here is
why:
Section 233(2) says: “An appeal shall lie
from 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,
decisions in any civil or criminal proceedings before
the Court of Appeal; (b) Decisions in any civil or
criminal proceedings on questions as to the
interpretation or application of this constitution;
and (c) Decisions in any civil or criminal
proceedings on questions as to whether any of the provisions
of Chapter IV of this Constitution has been; is being
or is likely to be contravened in relation to any person”.
Now, if you rewind back to the wording of
Section 295 reproduced above, you will agree that the
Supreme Court is in order to assert limited appellate
jurisdiction in this matter because the Court of Appeal’s
denial of Wamakko’s Section 295 request is a ‘decision
(or opinion) made in a civil proceeding on questions as to
the interpretation or application of the constitution’.
Additionally, Wamakko’s instant appeal ‘involves question of
law alone’ under Section 233(2) (a), which, once it is
disposed off, can no longer disturb the exclusive
jurisdiction of the Court of Appeals to still determine the
underlying governorship election petition. Recall that
Section 295(3) requires the Supreme Court to “give its
decision upon the question and give such directions to the
Court of Appeal as it deems appropriate”.
Another pertinent fact to keep in mind, as we
go along, is that Section 295 (like Section 233(2) (b) also
began by saying that “Where any question as to the
interpretation or application of this constitution
arises in any proceedings in the Court of Appeal”. So,
both Sections are in companion and in pari materia,
employing the use of similar wordings throughout.
Besides, they are clearly meant to be a limited
constitutional exception to the exclusive jurisdiction of
the Court of Appeals on governorship election petitions,
provided the specific conditions enumerated therein are met.
Upon due consideration, I dare say that, without more,
Wamakko squarely met all those conditions. Thus, under the
tenor of Section 233(2) (b) alone, and interlocutory appeal
clearly lies to the Supreme Court on the narrow ‘question
of law alone’ raised by Wamakko. Therefore, at this
juncture, I will again resolve this issue in favor of CJN
Katsina-Alu and urge Justice Salami to stand down and tarry
awhile.
Additionally, and to the glory of Wamakko,
under Section 233(2) (c) quoted above, the Supreme Court can
assert a narrowly tailored original jurisdiction over
an issue arising from a governorship election petition,
provided that such issue involves a “question as to whether
any of the provisions of Chapter IV of this Constitution has
been, is being or is likely to be, contravened in relation
to any person”. Chapter IV includes Section 36 of the
Constitution which protects the fundamental right to fair
hearing. Wamakko has asserted that the refusal of the
President of Court of Appeals to empanel another set of
Justices, other than the five he petitioned against, and
other setbacks he suffered before the Court of Appeals, have
denied him his ‘fundamental right to fair hearing’ under
Section 36 of the Constitution. Here again, an action to the
Supreme Court lies. So, CJN Katsina-Alu is, yet again, in
order.
And there is more. Section 295 (2) –
the section just preceding 295 (3) at issue here allows the
Court of Appeals a similar exceptional jurisdiction
over matters upon which the Constitution also gave Federal
High Courts exclusive jurisdiction. That section says that:
“Where any question as to the interpretation or
application of this constitution arises in any proceedings
in the Federal High Court or a High Court, and the court is
of opinion that the question involves a substantial question
of law, the court may, and shall if any party to the
proceedings so requests, refer the question to the Court of
Appeal; and where any question is referred in pursuance of
this subsection, the court shall give its decision upon the
question and the court in which the question arose shall
dispose of the case in accordance with that decision”.
In case you don’t know, it is this very provision that leads
to all those interlocutory appeals you hear litigants
taking before the Court of Appeals while their case is still
pending before the High Court. So, now you might ask: if
Dingyadi (or the Court of Appeals - by proxy) now claims
that Supreme Court erred by admitting a Section 295 (3)
process from Wamakko, why was the same Court of Appeals,
since the founding of ‘constitutional’ Nigeria,
admitting similar processes from the High Court on cases
that can also said to be within the exclusive jurisdiction
of the High Court? I am sure you have heard lawyers say it
before that you cannot approbate and reprobate at the same
time.
Finally, under the Third Schedule to the
Constitution, the Chief Justice, sitting as the
constitutional Chairman of the National Judicial
Council, has disciplinary powers over the President and
Justices of the Court of Appeals. And this often arises when
a litigant before them raises allegations of partiality or
breach of other judicial code of ethics. The disciplinary
control of the NJC over the Court of Appeals and its
President includes the authority to receive and determine
petitions against them and recommend their removal from
office. Every reasonable person living in Nigeria knows that
the President of Nigeria (including the military ones)
hardly ignores the recommendations of the National Judicial
Council as they bear on appointment, removal or discipline
of Judges or Justices. Such President will do so to his
political peril. So, the ‘recommendation’ as used here is,
in practice, virtually mandatory. Another thing every
reasonable Nigerian knows is that, though NJC has other
members, its decisions are normally swayed by the force of
character of its Chairman, just as is the case with all the
organs enumerated in the Constitution. Part of the reason
being what our law says, besides the conventions and the
presidential regime we operate. CJN Katsina-Alu is a new
Chief Justice looking to assert himself (and infuse
discipline), like those before him, in the difficult and
dicey task of administration of the Nigerian judiciary.
Justice Salami is a member of the NJC; so that makes him
familiar with what I am talking about here.
So, here we are, with a spate of petitions
pending against the President and five Justices of a Court
of Appeals, believed by a party-opponent (Wamakko) before
them to have lost their impartiality, besides his grave
consternation that a wanton breach of the Nigerian
Constitution was afoot. What to do? Simple - put the Court
of Appeals case on hold, hear the Sections 295 and 36
actions, dispose of the damning petitions, and bam: the case
goes back to the Court of Appeals, which, if it ultimately
renders a decision in favor of Dingyadi, heavens will not
fall in the Caliphate because everyone would have been rest
assured that the proceedings passed all the necessary ‘integrity
tests’.
Aloy
Ejimakor
wrote in from
alloylaw@yahoo.com |
