Term Paper on Judicial Lawmaking

8/9/2019 Term Paper on Judicial Lawmaking

1/17

CHAPTER ONE

WHAT IS JUDICIAL LAW MAKING?

The issue, Judicial Law making or Do Judges make laws?, is very

controversial. Here, there are two groups of people; those who believe that judgesdont make laws and those who believe that Judges make laws.

The first group of people, I see as traditionally minded. They believe only in

literal terms and that this question is irrelevant since it is obvious. Literally, the

Legislature is the only arm of Government that makes Laws while the Judiciary

interprets Laws. For them, this means that Judges are simply, The Oracles of

Law.This also means that they are merely The speaking law. According to this

group of people, any Judge who attempts to contrive a new rule would be guilty of

usurpation of power. This view is supported by Hale and Blackstone who says,

Judges are not delegated to pronounce a new law,

But to maintain and expound the old law.

Also in the case of Wills Vs. Baddeley, Lord Esher echoing the views of Hales and

Blackstone said:

There is in fact no such things as Judge-made law, for

Judges do not make the law though they frequently have toapply existing law to circumstances as to which it has not

previously been authoritatively laid down that law is applicable

The second group of people who believe that Judges make laws says it is a

question of Judicial Courage not Judicial Arrogance. For example, according

to Barr. Mbalaso, in the issue of bail, it is not in the jurisdiction of the Magistrate

courts to grant bails. Now, when a lawyer persuades the Magistrate to look

critically at his clients file, if the Magistrate sees reasons why the lawyers client

should be granted bail, he would go ahead to grant bail even when it is not in their

jurisdiction.Lord Denning, in the case of A.G Vs. Butterworth said:

It may be that there is no authority to be found in the books,

but if this is so, all I can say is that the sooner we make one,

the better.

1


2/17

In other words, Lord Denning is saying that it is not possible for the laws made by

the legislature to cover every case that comes to a judges table everyday.

Therefore, the Judiciary make laws. The great Justice Holmes says :

Judges do not and must not legislate, but they do so only interstitially.

Interstitially here means that Judges make laws when there are lacunae in theexisting laws. He mentioned this in the case of Southern Pacific Co. Vs. Jensen-

244 U-S, 205 at P:221(1971). The law has to grow lest, it dies. The law should be

kept alive, nourished and carefully cultured, tenderly nurtured lest it grows static

and becomes inadequate to serve the needs of a non static but dynamic and

changing society. In as much as the laws grow by the legislature, the judiciary has

a role to play. Therefore, the laws also grow by judicial law making.

Another way judges make laws is through Judicial Precedents (Stare

Decisis).This means that the decision of a Judge once given on a question of lawbinds both the Judge himself and subsequent Judges in a court of lower rank to

decide the same question of law in the same way. The history of Judicial

Precedents is traced back to England as in English common laws. The Superior

Court whose decision is binding must be within the same judicial system , and

what is regarded as binding is the Reason for the Decision (ratio Decidendi).

Where there is no precedent, the Judges create a new law to govern the one before

them.

Denning M.R. has admitted without equivocation that Judges make law in the case

of Pohimitoola Vs. Nizam of Hyderabed (1958) A.C. 379, 423. The binding natureof judicial decisions clearly supports this view. Although, Holdsworth suggested

that the views of Hale and Blackstone represent the twentieth century position; it is

difficult in the light of the application of the doctrine of judicial precedent to

accept that the judgment of the final court which departs from the previous state of

the law is not the law. The view that Judges in fact make law is now accepted.

Whole branches, not of ancient, but of very modern law, have been built up,

developed and created by action of the court; little wonder judicial precedent is a

major source of Nigerian law. Also, whatever the judiciary interprets is law unless

countered by a higher court. Judge/the judiciary also make laws throughinterpretation of statutes. According to Dicey, a famous legal commentator:

Judge-made law is real law, though made under the form of interpretation of

statutes.

Pollock, an English Jurist also said, No intelligent Lawyer would this day pretend

that the decisions of the court do not add to or alter the law.

2


3/17

CHAPTER TWO

PETER OBI VS INEC IN RELATION TO JUDICIAL

LAW MAKING

INTRODUCTION

In 1999, after so many years of Military rules in Nigeria, the Country was

returned to Civilian rule following the promulgation of the 1999 Nigeria

Constitution. Under the 1999 constitution, the three arms of Government became

functional again in line with the rule of separation of powers. By the provision ofthe constitution, the tenure of office of any person elected as Governor of any state

runs for 4 years from the date he took the oath of office and allegiance.

Rightly from the above, Section 180(2) of the 1999 Constitution provides thus:

Subject to the provision of subsection (1) of this section, the Governor shall

vacate his office at the expiration of a period of four years commencing from the

date when :

a) In the case of a person first elected as Governor under this constitution, he

took the oath of allegiance and the oath of office, and

b) The person last elected to that office took the oath of allegiance and oath of

office and would, but for his death, have taken such oath.

FACTS OF THE CASE OF PETER OBI VS INEC

In 2003, the Independent National Electoral Commission (INEC), the body

charged with the responsibility of conducting elections at the National level for the

office of the President, Vice- President, Governor, Deputy Governor, Members of

3


4/17

the State House of Assembly, Members of the National Assembly( Senate and the

House of Representatives), conducted the election.

In Anambra State, Peter Obi was the Governorship candidate of the All

Progressive Grand Alliance (APGA) while Dr. Chris Ngige was the candidate ofthe Peoples Democratic Party (PDP). On 19th April 2003, elections to the offices

of Governors of the State of the Federation of Nigeria were conducted. After the

elections, INEC declared Dr. Chris Ngige of the PDP winner of the election to the

office of the Governor of Anambra State. Dr Chris Ngige was sworn in as the

Governor of Anambra State on 29th May, 2003. Peter Obi then challenged the

declaration of Dr. Chris Ngige as the winner of the election by filing his petition at

the Governorship and the Legislative House Election Tribunal for Anambra State.

The Election Tribunal found in the favour of Peter Obi and declared him the actualwinner of the 19th April, 2003 Governorship election in Anambra State.

After the failed appeal of Dr. Chris Ngige against the judgement of the Election

Tribunal, on 17th March, 2006, Mr. Peter Obi was sworn in as the Governor of

Anambra State for four years tenure of office. Sometime later in 2006, the

Independent National Electoral Commission(INEC) commenced preparations to

conduct fresh governorship election in Anambra State for 2007. Mr. Peter Obi

challenged the action of INEC in attempting to organize election for the office of

the Governor in Anambra State and contended that he has not exhausted the 4

years for which he was elected. His suit at the Federal High Court and Court of

Appeal respectively were dismissed.

(see Peter Obi Vs INEC (2007) II NWLR Part 1046, Pg 436), where the Court of

Appeal dismissed Peter Obis case .

Following the dismissal of Peter Obis appeal by the Court of Appeal, Enugu

Division, Mr. Peter Obi approached the Supreme Court by way of appeal against

the judgement of the Appeal Court. While the appeal was still pending at the

Supreme Court and before the Court gave its judgement, INEC went ahead and

conducted fresh Governorship election in Anambra State in April 2007. In the said

election conducted by INEC, Dr. Andy Uba of the Peoples Democratic Party

(PDP) was declared winner and sworn into the office. He was also given a

4


5/17

certificate of return before he was sworn in.( Certificate of return enables/ qualifies

one to be sworn in as the Governor of a State.). At the Supreme Court, Mr. Peter

Obi sought the correct interpretation of the provision of section 180(2) of the 1999

Constitution of Nigeria. Mr. Peter Obi at the Supreme Court contented that his

tenure of office commenced on the day he was sworn into office which was 17th

March, 2006 and stands be exhausted on 17th

March, 2010 while counsel to Dr.Chris Ngige submitted that the tenure of office of Mr. Peter Obi started to count

from 29th May, 2003, when Dr. Chris Ngige was sworn into office.

THE SUPREME COURT JUDGEMENT ON PETER OBI VS INEC

On May, 2007, the Supreme Court delivered its judgement in favour of Mr.

Peter Obi. The Supreme Court judgement was reported in OBI VS INEC (2007) II

NWLR PART 1046 AT 565. The Supreme Court held at Abuja on Friday, 13th

July, 2007 before their Lordships: Justice Aloysius I. Katsina-Alu, Justice George

A. Oguntade, Justice Muhamud Mohammed, Justice Francis F. Tabai, Justice

Ibrahim T. Muhammad, Justice Pius Aderemi and Justice Christopher Chukwuma-

Emeh.

The summary of the Supreme Court judgement was that the Supreme Court

applied the provision of Section 180(2)(a) of the 1999 Nigerian Constitution and

held that as at the time the 2007 election for Governorship in Anambra State washeld, the office of the Governor of that State was not vacant as Mr. Peter Obi had

not exhausted his 4 years tenure of office which started on 17th March, 2006, when

he took the oath of allegiance and oath of office. Dr. Andy Uba went back to the

Supreme Court for the re-visitation of the initial judgement. This is contrary to the

Supreme Court rules which provides that the court cannot review any judgement

once given, except to correct some typographical mistakes. Dr. Andy Uba asked

the Supreme Court to give an injunction stopping the election that would be held in

2010 on the basis that he is a Governor in waiting, since he has his certificate of

return which enabled him to be sworn in. Based on that principle of revisitation of

judgement, the Supreme Court treated his suit with absolute negligence.

5


6/17

CHAPTER THREE

DIFFERENT VIEWS OF LEARNERED MEN ON PETER OBI

VS INEC IN RELATION TO JUDICIAL LAW MAKING

In the words of Barrister Marcus Ndukeze, Obi vs. INEC is a case in the

Nigerian Legal System which has set every high standard of legal justice in

Nigeria; more so, it has made the judiciary a hope for the hopeless and a very

helping place to the oppressed. He is of the opinion that this is a Locus Classicus

case in the judicial law making in Nigeria because this was a man who had lost the

hope of becoming a Governor in his life because of the powers that be. Like it was

decided in Amaechi vs. INEC, Fayose vs. AD, Oni vs. Agagu and Ararume vs.PDP (un- rptd). The present case he said is like a ratio-decidendi, which means

that it must be binding to most future and present cases in judicial law making in

Nigeria as relates electoral cases. This case has made it that Anambara state would

not have the same governorship electoral calendar or dates as other states in

Nigeria.

According to Barr. Mbalaso, the major issue of the case, Peter Obi vs. INEC,

deals with judicial interpretation of statute. For him a law is no law until

pronounced upon by the court. He also said that Obi vs. INEC was a post electioncase that was why there were so many controversies unlike the issue of Gov. T.A

Orji and his entanglement with Okija matters which was dismissed because it was

a pre-election matter.

In the view of Barr. Chris Ezem, Mr. Peter Obi went to court to get him an

injunction to stop Dr. Andy Uba from being sworn in as Governor of Anambara

6


7/17

State. The Supreme Court assured him that there was no need for rush and he

should be silent and allow Dr. Andy Uba to be sworn in. After he (Andy) was

sworn in, lawyers went to the Supreme Court for them to interpret the tenure of

office of a Governor. The Supreme Court held that there was no vacancy in the

first place so, the election was null and void. Therefore the Supreme Court ordered

Dr. Andy Uba out. In his words, Obis case laid down a principle which has to dowith when the tenure of office of a Governor should start. However, there is a

more interesting case which calls for judicial attention in line with Peter Obi vs.

INECs case. They are the cases of Liyel Imoke of Cross River State, Idris

Abubakar of Kogi State, Oyilola Olausoye of Osun State and two more governors

involved.

In the case of Liyel Imoke, the present Governor of Cross River State, he

was sworn in on May 29th, 2007. After he served two years in office, there where

contentions from adverse parties as regards the election of 2007. Liyel Imoke lost

in the first tribunal and there was an appeal. There was an order for a re-run. He

had to step aside for a 90-day re-run. The Speaker of the State House of Assembly

took over office according to the provision of Section 191(2) of the 1999

Constitution of the Federal Republic of Nigeria which states thus:

- Where any vacancy occurs in the circumstances mentioned in subsection (1) of

this secton during a period when the office of the Deputy Governor of the state is

also vacant, the Speaker of the House of Assembly of the state shall hold the office

of the Governor of the State for a period of not more than 3 months, during which

there shall be an election of a new Governor of the state who shall hold office for

the unexpired term of the last holder of the office.

After the re-run of the election, Liyel Imoke won and was sworn in a second

time. Now, the controversy is, where should his tenure be counted from? Is it

from the first swearing in or the second?. As a legal mind, he would like to make

it known that an oath is an oath. The same person took the first and the second

oath, not a different person. If he is asked to start a fresh tenure because of thesecond oath, he would serve for six years which would be a summersault on the

constitution. It would be a mess on the Constitution because a Governor should

serve only for 4 years unless there is war in that Country that will not give room

for a new election. There was a gap in the judgment of the Supreme Court by

asking Liyel Imoke to be sworn in a second time. That is why it is not good to

leave a gap in judgment because the judgment of the Supreme Court on issues of

7


8/17

tenure has become law. According to him, properly speaking, in line with the

definition of an oath, an oath need not be taken twice. For example, an accused

person who is charged before a Magistrate Court and is on bail and probably has

the same case brought before a Higher Court, the Court would say, let the accused

person stand on the existing bail.

Therefore, extending his (Liyel Imokes) tenure would defeat the constitution; and

remember, the constitution supersedes all other laws.

Former Justice of the Supreme Court, Justice Sampson Uwaifo, faulted the

verdict of the Supreme Court that ordered Mr. Peter Obi to complete his full four

year tenure from the day he was sworn in as Governor of Anambara State.

According to him, democracy still remains a very controversial concept. Even

going by the common notion that democracy is the popular control of government

by the will of the majority; in practice, no one can vouch for true attainment of thisidealism. In his view, the Judiciary played a very endearing role in several

litigations prior to the 2007 elections. Some of the notable ones reported so far

were:

- INEC vs. Action Congress (2007) 6 NWLR (pt 1029) 142 decided by the Court

of Appeal but overruled by the Supreme Court;

- A.G.Federation vs. Abubakar (2007) 8 NWLR (pt 1035)117 also a decision by

the Court of Appeal affirmed by the Supreme Court.

The governorship election of 003 in Anambara State in which Dr. Chris

Ngige of the PDP was declared winner was successfully challenged by Mr. Peter

Obi of the APGA. It took nearly three years before the petition was decided. Mr.

Peter Obi then took the oath of allegiance and oath of office only on March 17th,

2006. As the 2007 election was approaching, Mr. Peter Obi (Governor of

Anambara State) took out an originating summons against the Independent

National Electorate Commission (INEC) at the Federal High Court Enugu on the

12th of February, 2007for certain reliefs.

Justice Uwaifo went ahead to say what happened at the Supreme Court. As

he said, the applicant appealed to the Supreme Court. On June 14th, 2007, the

Supreme Court reversed the two lower Courts. Before then, elections had taken

place and Dr. Andy Uba was declared winner and sworn in as Governor of

8


9/17

Anambara State on May 29th, 2007. The Supreme Court in the judgement of the

presiding justice made the following declaration and order:

(1)That the office of the Governor of Anambara State was not vacant as at May

2007.

(2) It is ordered that the 5th respondent (Dr. Andy Uba) should vacate the office

of the Governor of Anambra State with immediate effect to enable the

plaintiff/appealant (Mr. Peter Obi) to exhaust his term of office.

All the six learned Justices agreed with the Judgement, full reasons for which have

now been given on July 13th, 2007. As soon as the Judgement became known,

President Umaru Musa Yaradua directed its compliance. That was an admirable

show of respect for the rule of law by the number one citizen.

From what justice Uwaifo read from the transcript of the reasons for the

judgement, he said, the Supreme Court quoted section 285(2) of the Constitution

which states that:

There shall be established in each State of the Federation one or more Election

Tribunals to be known as the Governorship and Legislative House Election

Tribunals which shall, to the exclusion of any court or tribunal, have original

jurisdiction to hear and determine petitions as to whether any person has been

validly elected to the office of the Governor or Deputy Governor or as a member of

any Legislative house; and held the view that the Federal High Court was not

fettered by that and by the virtue of Section 251(1),(q), and (r) of the 1999

Constitution that the Court could entertain Mr. Peter Obis case. It also quoted theprovisions of sections 251(1), (q) and (r) of the 1999 Constitution and said:

To be specific, sections 251(1), (q) and (r) puts it beyond any doubt that the

Federal High Court has the Power to enter into adjudication on any action or

proceeding seeking declaratory and injunctive reliefs.

9


10/17

That is the window which the Supreme Court created for the Federal High Court

to have jurisdiction in a matter like this after it gave an all- conquering

interpretation to the opening phrase of section 251 which says:

Not withstanding anything to the contrary contained in this constitution.

Justice Uwaifo does not see how that interpretation can be right to give the FederalHigh Court such jurisdiction. If that interpretation were to be correct, it would

undermine the exclusive original jurisdiction conferred on the Court of Appeal

under section 239 and even that conferred on the Supreme Court under section 232

as it set out to do sections 246 and 285 of the 1999 Constitution. The window thus

attempted to be created by the Supreme Court panel for the Federal High Court

does not exist at all. The panel did not consider section 246 of the constitution and

if it had done, it would have seen that no decision as to whether any person had

been validly elected to the office of Governor or Deputy Governor, or that theoffice was vacant or that the term of office has not expired, as arose a central issue

from the election of Dr. Andy Uba, upon which the Supreme Court panel made

pronouncement and gave orders which can go beyond the Court of Appeal. Section

246 and 285 of the Constitution must be considered together in connection with

this case. Also, election matters are treated specifically and differently from all

other matters, hence, the special provisions for them. Those provisions of section

251 of the constitution cannot override sections 246 and 285, being special

provisions made mainly for the prosecution and final resolution of certain election

matters up to the Court of Appeal.

Mr. Peter Obi relied on section 180 (2)(a) of the 1999 constitution of the Federal

Republic of Nigeria. With all due respect, Justice Uwaifo says:

If I had sat on the Panel of the Supreme Court and seen the way of my learned

brothers understanding of Mr. Peter Obiscase, I would have had no hesitation to

express a dissenting opinion. I have decided to make my views known at this

August forum because I consider the case to be of extreme national importance.

The case raises three matters for discussion namely

i. The issue of jurisdiction

ii. The correctness of the judgement and the interpretation of section 180 (2)

(a)

10


11/17

iii. The policy aspect of the Judgement.

The first one he says, which is the jurisdiction to hear the claim according to 1999

Constitution has a scheme:

a. Whereby all disputes, litigations or contested issues in respect to elective

offices namely, State House of Assembly, Governor or Deputy Governor,

National assembly, President or Vice- President, must be heard under the

exclusive original jurisdiction of the appropriate tribunals.

b. Such disputes may be whether a lawful election e.g whether section 132 (2)

and 178 (2) of the Constitution have been complied with or whether the

election was conducted with voters register e.t.c. The dispute may be

whether any person has been validly elected or the term of office of anyperson has ceased (expired) or the seat of any person has become vacant

e.t.c.

c. All such disputes in respect of State House of Assembly, Governorship and

National Assembly must be brought in the National Assembly Eletion

Tribunal or Governorship and Legislative Houses Assembley Election

Tribunal . There is only one step appeal which must end in the Court of

Appeal. ( see section 246 and 285 of the Constitution)

d. As for the president or Vice- President, all such disputes must be brought in

the Court of Appeal( as the Tribunal) in its exclusive original jurisdiction

and there is also only one step appeal to the Supreme Court.( see section 239

of the Constitution)

He noted that when this simple scheme is understood and followed, there will be

no room whatsoever for the Federal High Court or State High Court to meddle in a

case like the Peter Obis case for lack of jurisdiction. Consequently, the Supreme

Court lacks jurisdiction. The claim seeks to know:

a. When Mr. Peter Obis term will start to run in office.

b. Whether INEC would conduct election to that office of Governor of

Anambra State when Mr.Peter Obi had not served 4 years therein.

11


12/17

c. Whether Mr Peter Obi is not entitled to injunction against any election to

that office until when his tenure would expire

Is it not obvious beyond argument that Mr. Peter Obis cause of action was that

there was no vacancy in the office of Governor of Anambra State, His term of

office not having expired and so no election can be held into it? No matter the

disingenuousness in the manner the claim may have been couched, that is what Obi

says.

This is clearly vindicated by the orders made by the Supreme Court itself based on

the action. Before referring to the relevant provisions of the constitutions, there

must be a second look at the Two orders made by the Supreme Court which for

effect, Justice Uwaifo quote here again. They are,

The office of the Governor of Anambre State was not vacant as at 29th May,

2007: It is ordered that the 5th respondent (Dr. Andy Uba) should vacate the office

of the Governor of Anambra State with immediate effect to enable the Plaintiff/

appealant ( Mr. Peter Obi) to exhaust hi term of office.

It is most elementary that an order granted by a court of competent jurisdiction

must be a reflection of the claim before it and not otherwise. Does this not give

away the Supreme Court Panel that they obviously understood Mr. Peter Obis

claim, as the Federal High Court and Court of Appeal did, to be that his term of

office had not expired and that his office was not vacant? The question must be,

Which court has original jurisdiction to decide this, where did the Supreme Court

acquire its jurisdiction to make these momentous orders? The orders made by the

Supreme Court in Mr. Peter Obis case were not derived from the judgement of the

Court of Appeal sitting in its original jurisdiction. How then did the Supreme Court

get itself involved in the Peter Obis case? That can be garnered from their

judgement of 14th June 2007.

The presiding Justice said:

It is my firm view that what plaintiff/appellant had sought by his claim was the

true interpretation of section 180(2) (a) of the 1999 constitution and in particular

Section 251(1)(q) and (r) has the jurisdiction to interpret any provision of the

constitution or the law.

12


13/17

In Uwaifos view, a court does not go interpreting a provision of the

constitution or the law in vacuo. It can only do so for a purpose and within its

jurisdiction and in relation to a claim its showing a cause of action.

The learned presiding Justice said further thus:

The plaintiff/appellant had in his claim before the High Court sought bothdeclaratory and injunctive reliefs directed at protecting his 4 year term of office. In

its effect, the claim is another way that his term of office extends beyond 29th May

2007.

Is this not a clear awareness that the Plaintiff was claiming that his tenure of office

has not expired? Had the learned Justice adverted his mind to Section 246 and 285

of the constitution, He should have realized where the exclusive original

jurisdiction lay to decide issues. One Learned Justice said:

A Court always have jurisdiction to make a pronouncement on the state of law.

Therefore, the two Courts below were wrong to have declined jurisdiction.

Another, while supporting the presiding Justice said,

I agree with him that the high court has the jurisdiction to interpret any provision

of the constitution.

It is not in the character of the judiciary, a vital organ of Government, to spring

surprises with relaxed ease for the ovation of the gullible. The Supreme Court isthe engine of purification of the rule of law. It must consistently perform its

solemn duty with deep commitment in line with the constitution and the laws for

the edification of societal values.

It is elementary that a court must consider the claim ex facie before it, as stated by

the plaintiff to see if it falls within its jurisdiction. Where there are different reliefs

sought, the court must consider what the principle claim is.

( see Egbuonu Vs Borno Radio (1997) 12 NWLR (pt 531) 29.

In Tukur Vs Government of Gongola State (1989) 4 NWLR (pt 117)571 at 549, the

Supreme Court per Obaseki, Justice of the Supreme Court observed thus:

It is a fundamental principle that jurisdiction is determined by the plaintiffs

claim. In other words, it is the claim before the court that has to be looked at or

13


14/17

examined to ascertain whether it comes within the jurisdiction conferred on the

court. Judges have no duty and indeed no power to expand the jurisdiction

conferred on them but they have a duty and indeed jurisdiction to expand

pronouncements.

This takes us to relevant provisions of two sections of the constitution. Justice

Uwaifo says they are: Section 285(1)(b) and (2).

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;

1) The term of office of any person under this constitution has ceased;

2) There shall be established in each state of the Federation one or moreElection Tribunals to be known as the Governorship and Legislative Houses

Election Tribunals which shall, to the exclusion of any court or tribunal have

original jurisdiction to hear and determine petitions as to whether any person

has been validly elected to the office of the Governor or Deputy Governor or

as a member of any Legislative House.

The relevant provisions of Section 246 (1)(b)(ii)(iii) and (3)are:246(1): An appeal to the Court of Appeal shall lie as of right from;

b) decisions of the National Assembly Election Tribunals and Governorship

and Legislative Houses Election Tribunals on any question as to whether

ii) any person has been validly elected to the office of the Governor or Deputy

Governor, or,

iii) the term of office of any person has ceased or the seat of any such person has

become vacant;

3) The decisions of the court of Appeal in respect to appeals arising from election

petitions shall be final.

Section 239 provides for similar situations but specifically for the office of

President or Vice President. The Court of Appeal is the given original jurisdiction

14


15/17

to the exclusion of any other court or tribunal. Appeal lies from there to the

Supreme Court.

That fact has been unequivocally settled by the decision of the Court of Appeal in

Abubakar Vs. A.G Federation (2007)3 NWLR(pt 1022) 601 and affirmed by the

Supreme Court.

In another different but related case of Abubakar Vs. A.G Federation (2007)6

NWLR(pt 1031)626 decided by the Supreme Court , it was observed by Onnoghe,

Justice of the Supreme Court at pages 641-642:

The action was instituted in the Court of Appeal by virtue of the provision of

Section 239 of the Constitution which confers original jurisdiction on that court to

hear and determine any question as whether, inter alia, the term of office of the

President or Vice-President has ceased, or the office of the President or Vice-

President has become vacant.

It is in the same way that Sections 246 and 285 confer original jurisdiction, to the

exclusion of any other court or tribunal, on the relevant Election Tribunal, just as

the Court of Appeal stands as the tribunal in Matters of the president and Vice-

President. (see section 140(2) of the Electoral Act 2006). It would have been

erroneous on point of jurisdiction if those cases were filed in the Federal High

Court. One merely needs to read the claim and counter-claim in the Abubakars

case to appreciate that there is no iota of difficulty in showing that the claim of Obi

falls squarely within the contemplation of Section 246 and 285 of the Constitution.

In the process of expounding the jurisdiction conferred on them, the Court has

always emphasized the need to decline jurisdiction where its exercise will

determine issues it has no jurisdiction to hear and determine.

That was what the two Courts did. The Federal High Court could not under any

pretext have heard Mr. Peter Obis claim and then made the type of orders which

the Supreme Court made. It was the reason for the Federal High Court rightly

declining jurisdiction which the Court of Appeal affirmed. But the Supreme Court

claimed Jurisdiction which the constitution denied.

Justice Uwaifo says, I have to say with emphasis that cases falling under

sections 246 and 284, as the Peter Obi case, must end at the Court of Appeal.

15


16/17

Where the appeal is actually in respect of National Assembly Election or other

relevant election, whatever errors of a procedural nature, or of a procedural vice as

to jurisdiction or competency, cannot be corrected by the Supreme Court. They can

only be corrected by the Court if Appeal itself or else they remain uncorrected, or

unresolved as this court cannot intervene since it has no appellant or supervisory

jurisdiction over the Court of Appeal in such circumstances. This court will notpermit or encourage any subterfuge under which it may assume jurisdiction to hear

an appeal in respect of which the constitution has in clear and unambiguous

language made the court of appeal the final court. So it follows that the vice in

Peter Obis case, which is lack of jurisdiction in the Federal High Court where the

suit was filed, attached incurably to the Supreme Court.

In summary, a judgment or decision shown to have been given without

jurisdiction, no matter how benevolent or beneficent; no matter how creative or

correct, or how high or honorable, the court cannot be allowed to stand. It can only

stand on the infraction of the Constitution and as a recipe for arbitrariness, the very

reason to avoid such being the adoption of a written Constitution. But that will be a

monstrosity standing against the Rule of Law which is the guiding light for

constitutional democracy.

References

*Prof. Babs Iheme, The Nigerian Legal method, Faculty of Law, Abia State

University Uturu.

*Abiola Sanni,Introduction to Legal Method.

*The 1999 Constitution of the Federal Republic of Nigeria.

*Daily Independent News paper.

*Electoral Act 2006.

16


17/17

*Peter Obi Vs INEC-wikipedia, www.google.com.

*Nigeria Weekly Law Report (pt 1031)626.

*Nigeria Weekly Law Report (pt 1046)565.

*Barr. Chris Ezem,Ezem Chris & Associates chambers,27/29 Odulami street, Platinum Savings/Loans Building,

Victoria Island, Lagos.

*Barr. Marcus Ndukeze,Dukes & Dukes chambers, Calabar.

*Barr. Mbalaso, Mbalaso Mbalaso & co Legal practitioners,

42 Lagos street, Umuahia.

17
http://www.google.com/http://www.google.com/

Documents

Term Paper on Judicial Lawmaking