Besides formulating the rule of law through the interpretation and application of law to respond with a verdict, settling disputes, checking legality, judiciary has been a major player in nation politics. In democracy, Judiciary is vested with responsibilities to interpret and apply the law along with the constitution, and to provide impartial adjudications of disputes between the state and individuals, between individuals, and between different levels of government within the state. The peculiar rugged and cataract socio-political journey of Nigerian nationhood has made reliance on the courts and on judicial means for addressing core moral dilemmas, political controversies and public policy questions since Independence in 1960 till date. At several times when Nigeria got to the cross-roads or at defining moments of existence or likely been torn apart, the judiciary, whether invited or not, came in to lead the nation out of the confusions. This is not to say judiciary has fantastically done well, since instances abound when its pronouncements has set the nation sprawling and gasping for air.
However, to mark the 58th Independence of Nigeria, brief and few landmark decisions and interventions of the judiciary, for good or bad would constitute this discourse.
TRIAL OF AWOLOWO, 30 OTHERS FOR TREASON
One of the court matters that dragged the judiciary into the murky waters of the politics was the trial of Chief Obafemi Awolowo and 30 others before Justice George Sodeinde Sowemimo of the High Court in Lagos for treasonable felony in 1962. On October 1, Prime Minister Balewa in a nation-wide broadcast told the nation that his government had been aware for some time of violent intentions of certain politicians to forcefully overthrow the legitimate government in Nigeria, and that they had been undergoing military training abroad On November 2, 1962, John Lynn, the Criminal Investigation Department (CID) boss came to read 3-count charge against Awolowo in his official residence at No. 7, Bell Avenue, Ikoyi, Lagos, after he had been under house arrest for about two months in Ikenne, Ogun state Lekki and finally Ikoyi. This marked formal charging of Chief Awolowo for treason along 30 others (including Anthony Enahoro, Sam Ikoku, Ayo Adebanjo, Lateef Jakande, Alfred Rewane, J.S. Tarka, Josiah Olawoyin, Dr. Oladipo Maja, Bisi Onabanjo, James Aluko, etc) with conspiracy to overthrow the Federal Government by force. Trial began November 12. On November 27, 1962, Chief Anthony Enahoro, who had broken restriction in September 1962 and fled to Britain, was arrested. He was later returned to Nigeria in May 1963 to face trial. On December 6, 1962, an immigration restriction [Legal Practitioners Bill] was imposed on foreign lawyers, depriving Awolowo [who, in addition to Mr. Abraham A. Adesanya had British and Lebanese lawyers] and others their representation of choice. Awolowo’s application to have the restrictive bill quashed was dismissed December 12, 1962.
After a 10-month trial, with a total of 95 witnesses, 383 exhibits examined, Justice Sowemimo delivered an 8-hour judgment on September 11, 1963, declaring Chief Awolowo guilty of all charges,and a convicted person.
THE SENTENCE
The Trial Judge Justice Sowemimo speaks:
“….Whatever others may say, this is my personal view. I am not speaking as a judge but as a Nigerian. Here we have one of the first Premiers of the autonomous region standing trial. If you were the only one before me, I would have felt that it was enough for you to have undergone the strain of the trial. I would have asked you to go. But I am sorry, I cannot do so now because my hands are tied. Having sentenced those young chaps whatever happens I have to pass some sort of sentence. If I made up my mind to sentence the other accused persons who I find were tools in the hands of others, and if my conclusion is right, it is for me to see that a punishment by me in my court is such that others would see that there is no preferential treatment.
I do not see what useful purpose a sentence of imprisonment will do to you, but I have come to the conclusion that these things emanate from you. To get yourself involved in this thing is enough shame. But this is a political crime. There are things which one may never know. All I know is what is before me and I am bound by the evidence. You mentioned about the delay in giving judgement, but I wish you were in my position and had to read some of these things – the evidence which was about 800 pages and the notes of submissions also about 600 pages. I was never hoping or thinking that I would be called upon to try a former Head of Government and Leader of Opposition. I am only happy that this is a court of first instance. ”
At the conclusion of the speech by Justice Sowemimo, Chief Awolowo was sentenced as follows: 1st Count – 10 years I.H.L (Imprisonment with Hard Labour) Treasonable felony, contrary to Section 41(b) of the Criminal Code. 2nd Count – 5 years I.H.L (Imprisonment with Hard Labour) Conspiracy to commit a felony, contrary to Section 516 of the Criminal Code. 3rd Count – 2 years I.H.L (Imprisonment with Hard Labour) Conspiracy to effect an unlawful purpose, contrary to Section 518 (6) of the Criminal Code. Sentences to be concurrent.
When the appeal of Obafemi Awolowo and 17 others came before the Supreme Court, the CJN Adetokunbo Adernola presiding, alongside with Justices Lionel Brett, J.I.C. Taylor, Vahe Bairamian and Louis Mbanefo unanimously dismissed the appeal as lacking in merit.
JUDICIARY INTERVENTION IN THE 1964 IMPASSE On April 12, 1958, Prime Minister Tafawa Balewa appointed the Chief Justice of the Western Region, Justice Adetokunbo Ademola, as the Chief Justice of Nigeria (CJN), thereby sidestepping Justice Olumuyiwa Jibowu who was his senior and acting CJN then. Balewa went further to demote Justice Jibowu to replace Justice Adetokunbo as Chief Justice of Western Region. He later went on to play a calming role in the aftermath of the 1966 coup when some northern officers wanted to secede from the country.
On December 30, 1964, elections were held in the Northern Region, in many parts of the West and in some parts of the Mid West. They were completely boycotted in the East. The results that were eventually released showed that the N.N.A. had won 190 seats and the U.P.G.A only 40 seats. Many people called for the cancellation of the elections and urged President Nnamdi Azikiwe to assume executive powers, nominate a caretaker government under a Prime Minister of his choice and later hold a new and more credible election.
Tafawa Balewa on the other hand, strongly believed that the results of the elections were truly reflective of the political preference of the majority of Nigerians. On January 1, 1965, the President informed the Prime Minister that the elections were “unsatisfactory in view of the violations of freedom of recent weeks. The President believed that the results of the elections could not be relied upon in calling up a new Parliament and that he had no intention of appointing Tafawa Balewa or any person to form a government. Azikiwe further said he would prefer to resign as President of the Federal Republic of Nigeria rather than to accept the results of the elections.
The Prime Minister responded that he was still the Prime Minister until a new one was appointed within the provisions of the Constitution. 6 ‘He believed that the clear majority votes of the NNA votes gave the President no alternative other than to reappoint him. He concluded that, if the President was not prepared to carry out the duty of his office, he should resign. It was in the thick of this national crisis that the CJN Adetokunbo Ademola became involved in finding a workable solution to the impasse. The Prime Minister confided in Adetokunbo Ademola his intention to appoint Sir Kofo Abayomi to succeed Azikjwe as President. Adetolcunbo Ademola, however, disabused his mind and assured him that Nnamdi Azikiwe would not resign. The President had wanted to call in the Armed Forces and the Police to strengthen his bargaining position vis a vis the Prime Minister’s. At a joint meeting with Major-General Welby-Everard, Commodore J.R.A. Wey and Mr. Orok Edet, the Inspector General of Police, the President sought to secure the allegiance and loyalty of the Forces; which the armed forces denied him, instead pledged their loyal to the Prime Minister. It was, however, at this stage that he called for legal advice as to which office the Forces should pledge their loyalty. It would seem that the constitutional interpretation that was provided by Justice Lionel Brett of the Supreme Court was with the fore knowledge and concurrence of CJN Adetokunbo Ademola. It was submitted that the Constitution gave the Federal Parliament sole powers to legislate for the Forces. The Army and Navy Acts laid down general control to be wielded by the Army Council and the Navy Board. They were both responsible to the Minister of Defense. The operational control of the Forces was said to be by the commanders who were under the policy direction of the cabinet. With respect to the maintenance of public safety and order, the direction was to come from the Prime Minister.
This legal position emphasized the figurehead position of the President who had no operational control or command over the Forces. The position of the law on the matter was conveyed to the President on Sunday 3 January 1965 by CJN Adetokunbo Ademola and Louis Mbanefo and with a six-point proposal on how best to resolve the crisis. The six points as proposed were:
(i) reaffirmation of the federal unity of Nigeria, with equal opportunities and no oppression; (ii) strict observance of the constitution till it is properly amended; (iii) a broad based national government formed on the declared election results to avoid chaos; (iv) detailed legality of the election to be determined by the courts and the constituency results upheld, except where the small turn-out had made an obvious mockery and common sense required a re-run; (v) a one-year eleven man commission to be set up within six months, to review the constitution and electoral machinery with a view to a constituent assembly (the President to nominate a member and the Prime Minister and Premiers two each); and (vi) the Western government to be dissolved to allow a free expression of regional electoral will. In spite of the uncompromising position of the activists who surrounded him, President Nnarndi Azikiwe, on Monday 4 January, called on Tafawa Balewa to form a government on the basis of the 1964 electoral results.
AWOLOWO VS SHAGARI CASE
In 1979, another case involving Awolowo rocked the nation to its foundation, following the general election that turned the nation back to democracy after 13 years of military rule in the country. The Awolowo versus Shagari case was a lawsuit in which Awolowo challenged the declaration of Shehu Shagari as the President-elect in 1979 presidential election.
The Court was called upon to interpret Section 34 A (i) (ii) of Electoral Decree No 73 of 1977. Awolowo contested the declaration of the First Respondent as President of the Federal Republic of Nigeria on the grounds that Section 34 A (i) (c) (ii) of the Electoral Decree (winning two thirds of all the states of the federation) had not been satisfied. The Election Tribunal dismissed the Appellant’s claims, affirming the Election of the First Respondent. The Appellant appealed to the Supreme Court, which affirmed the decision of the tribunal and dismissed his appeal.
In a lead judgment read by the Chief Justice of the Federation, Justice Atanda Fatai-Williams, the court decided that two-third of 19 is not 13 but 12 (2/3). It was a controversial decision, which is still being debated till today.
Decided on September 26, 1979, the court held that Shehu Shagari won two-third of the total votes cast, having polled a total votes of 16.8 million votes with 11.9 million votes ahead of Obafemi Awolowo who polled a total votes of 4.9 million.
The Judges included Chief Justice Atanda Fatai-Williams, Mohammed Bello, Mohammed Uwais, Andrew Otutu Obaseki, Ayo Gabriel Irikefe, Chike Idigbe and Kayode Eso, who wrote a dissenting judgment. In his opinion, Justice Eso wrote: With the greatest respect to the learned tribunal, it fell clearly into a serious error when it equated the words two- thirds state with two-thirds of the total votes cast in that state and not the physical or territorial area of such state. He also held that the first respondent (Shagari) did not satisfy the Section 34 (A) subsection (1) (c) (ii) of the Electoral Decree, 1977.
It is with the greatest regret that I find myself unable to agree with the majority judgment of the court just read by my Lord, the Hon. Chief Justice of Nigeria.
Of judges who were party to the 12 two-third judgment are Justices Mohammed Bello, Mohammed Uwais and Ayo Gabriel Irikefe rose to become Chief Justices of the federation. June 12, 1993 Presidential Election Annulment.
Due to shoddy ways judicial officers were recruited during days of the military rule, Justice Ikpeme Bassey who was practicing in the law chamber of Chief Akpambo (SAN), ex-President Ibrahim Badamasi Babangida’s Attorney-General of the Federation, was appointed judge of the FCT High Court. Barely a week after her appointment, she was assigned the case filed by ABN by the Chief Judge of the FCT High Court.
On June 23, 1993 when ex-President General Ibrahim Badamasi Babangida announced the annulment of the June 12, 1993 Presidential election, highly believed to have been won by the late Alhaji Moshood K, Abiola, he blamed the judiciary for the crisis leading to his decision.
By June 11, 1993 Justice Bassey Ikpeme, barely towards the “midnight judge” she made a ruling a few hours to the casting of ballot to stop the conduct of the election. Not only been the first case she sat on, that was the last caser she ever handled till she left the Bench and or died.
However, to the applause of the public, Professor Humphrey Nwosu and the electoral body disregarded the ruling and went ahead with the election because Section 19 of Decree No. 13 of 1993 ousted the jurisdiction of the court in the matter. While election results were been announced, the then Chief Judge FCT High Court, Justice Saleh granted an ex-parte order stopping further announcement of the election results on June 12; the same Justice Saleh followed with another declaring the election ‘null and void’. General Babangida later latched on the attitude and conducts of the judicial officers to annul the election in a broadcast; saying, ‘’It must be acknowledged that the performance of the judiciary on this occasion was less than satisfactory. The judiciary has been the bastion of the hopes and liberties of our citizens. Therefore, when it became clear that the courts had become intimidated and subjected to the manipulation of the political process, and vested interests, then the entire political system was in clear dangers. This administration could not continue to watch the various high courts carry on their long drawn out processes and contradictory decisions while the nation slides into chaos. It was under this circumstance that the National Defence and Security Council decided that it is in the supreme interest of law and order, political stability and peace that the presidential election be annulled’’, Babangida stated. In 1993, following the annulment of the June 12 presidential election, the nation was thrown into crisis and an embattled President Ibrahim Babangida was forced to transmit power to an Interim National Government headed by Chief Ernest Shonekan, an arrangement which was codified by a number of decrees. Decree No. 59 of 1993 ended the Babangida administration whilst Decree No. 61 created the ING.
Thus, at about 3.30p.m, on August 26, 1993, Ernest Shonekan was sworn in as the new Head of State and President of the ING by the Chief Justice of Nigeria, Justice Mohammed Bello, at the Presidential Villa, Abuja. He was not, however, sworn in as the Commander-in-Chief of the Armed Forces. This oversight was apparently deliberate. Another interesting detail was that Decree 61 of 1993 that established the ING identified General Abacha by name as the Vice-President, Defence Secretary and Senior Minister. The Senior Minister was empowered to succeed the President of the ING in the event of resignation or other untoward event. Thus, Abacha was Shonekan’s designated successor and Shonekan had no operational control of the Armed Forces.
Shonekan addressed Nigerians on August 31. He begun the process of releasing most of those detained for their involvement in pro-June 12 riots like Chief Gani Fawehinmi, Dr. Beko Ransome-Kuti and Mr. Femi Falana. He re-opened some universities that had been shut down and lobbied the National Union of Petroleum and Natural Gas Workers (NUPENG) and the NLC to suspend industrial actions. To the military, Shonekan promised to start phased withdrawals from Liberia.
On the political front, the governors of Oyo, Ogun, Osun and Ondo States, for example, refused, at least in public, to recognise Shonekan as the Head of State and the legality of the ING was also challenged in court. Pro-democracy rallies resumed.
On November 10, 1993, the Shonekan-led ING was declared illegal in a ruling at the Lagos High Court presided over by Justice Dolapo Akinsanya. The previous October, a case had been brought by Moshood Abiola and Baba Gana Kingibe to declare the ING illegal, null and void.
The lead Attorney for the Federal Ministry of Justice, Mr. Dele Jegede, advised the court that Decree 61, which was supposedly the legal basis of the ING, did not exist. Decree 56 had previously fixed August 27, 1993 as the date of commencement of the 1989 constitution.
Justice Akinsanya reasoned that since Babangida had divested himself of power by signing Decree 59 of August 26th, he had no power to sign Decree 61. She retired from the Lagos State judiciary in 2006.
SUPREME COURT JUDGEMENT IN AMAECHI Vs INEC
In the case of AMAECHI v INEC [2008] 5 NWLR [PT.1080] 227 the Supreme Court resolved the issue of the wrongful substitution of candidates of Political Parties during elections. The Court held that Rotimi Amaechi was wrongly substituted with Celestine Omehia by the Peoples Democratic Party [PDP], and that in the eyes of the law, Rotimi Amaechi was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.
SUPREME COURT 4-3 SPLIT JUDGEMENT IN BUHARI Vs YAR’ADUA
Following the 2007 presidential election, General Muhammadu Buhari of the All Nigeria Peoples Party (ANPP) and Alhaji Atiku Abubakar of the Action Congress (AC) petitioned the declaration of Alhaji Musa Yar’Adua as a winner. The Supreme Court on December 12, 2008 in a split of 4-3 laid to rest the dispute over April 21, 2007, presidential poll by dismissing petitions.
While the then CJN, Idris Legbo Kutigi, Aloysius Iyorger Kastina-Alu, Niki Tobi, and Dahiru Musdapher gave majority decision dismissing the Buhari appeal and upheld the election of Yar’Adua and Jonathan, Justices Aloma Mariam Mukhtar, Gabriel Oguntade and Walter Nkanu Onnoghen gave dissenting judgement.
Justice Niki Tobi who read the lead judgment held thus; “In my view, the most important complaint in an election petition is the disenfranchisement of eligible voters who reported within the statutory time to cast their votes but could not for reasons of violation of the Electoral Act. If there is evidence that despite all the non-compliance with the Electoral Act, the result of the election was not substantially affected, the petition must fail. In other words, Election Tribunal must, as a matter of law dismiss the petition, and that accords with Section 146 (1) of the Electoral Act.”
“For the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the Presidential election conducted in 2007. What I am saying is that there was no evidence before the Court of Appeal to dislodge section 146 of the Electoral Act. In the sum, the appeal fails and it is dismissed. Accordingly, Umaru Yar’Adua and Goodluck Jonathan are the President and Vice President of the Federal Republic of Nigeria.”
Justice Oguntade who read the lead dissenting judgment differed with Tobi and his co-travelers and insisted alongside his co-dissenters that failure by the electoral commission to use serialized ballot papers bound in a booklet meant that the election was not conducted substantially in tandem with the Electoral Act 2006.
“The inevitable conclusion I arrived at is that the failure of the 1st respondent (INEC) and the Chief National Electoral Officer, Maurice Iwu, to use serialised ballot papers bound in a booklet is clearly a non-compliance, which shows that the 2007 presidential elections were not conducted substantially in accordance with the principles of the Electoral Act 2006.The court below should have nullified the said elections for this reason’’.
An invalid ballot paper cannot yield a valid vote. Clearly, therefore, the petitioner/appellant in my view succeeded in making the case of non-compliance with section 45 (1) of the Electoral Act. “In the final conclusion, this appeal succeeds, I hold the view that the failure of the 1st and 2nd respondents to comply with section 42 (2) of the Electoral Act which is that ballot papers be serialised and bound in booklets for the purpose of the Presidential elections held on April 21, 2007, is so grave that the said elections ought to be nullified. “I have advised myself fully that all courts in Nigeria have the duty to enforce our laws dealing with elections in order to ensure transparency, credibility, and fairness in all elections in Nigeria. I annul the Presidential Elections in Nigeria held on April 21, 2007, and order fresh elections within 90 days from today.”
2015 ELECTION
However, similar June 12 scenario of destruction to our democracy would equally have played out penultimate 2015 general election, due to avalanche of suits filed in the courts advertently to disrupt or stop the elections from holding. The then head of judiciary in the country, the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed employed uncommon determination, courage and administrative and leadership prowess to ensure the 2015 was held. He was said to have asked various heads of court to prevail on their judges from making pronouncements on any of the suits, insisting a level playing field be provided for politicians to test their might, and to turn back to court if they deem it fit after the elections.
Among the suits are spurious and numerous suits filed challenging eligibility of the All Progressive Congress (APC) Presidential candidate, General Muhammadu Buhari to contest the 2015 election on the grounds of his alleged failure to submit his certificate of academic qualifications along with his Form CF001 to the Independent National Electoral Commission (INEC).
The plaintiffs claim that Buhari’s failure to submit his certificate of academic qualifications contravened provisions of Sections 131 and 318 of the 1999 Constitution and Section 31(3) of the Electoral Act, 2010. After been declared a winner and sworn-in, Buhari hired 13 Senior lawyers led by Wole Olanipekun (SAN) to argue his cases. Justice Ademola struck out the suits after the plaintiffs applied to discontinue their cases on June 30, 2015.
This is just as a Federal High Court in Abuja refused an application brought by four registered political parties, seeking to restrain the Independent National Electoral Commission (INEC) from using Smart Card Readers in the conduct of the general elections. The United Democratic Party, Action Alliance, Allied Congress Party of Nigeria and Alliance for Democracy filed the suit.
The parties, through their lawyer Alex Iziyon (SAN), told the court that the proposed use of the readers was contrary to the provisions of the constitution, as well as the amended 2010 Electoral Act. The court declined to make any interim orders against INEC on the proposed use of the Smart Card Readers. Several suits were also filed to stop ex-President Goodluck Jonathan from contesting 2015 presidential election in the country. The complainants asked the courts to stop him from contesting on the grounds that if he did and won, he would be sworn in more than twice allowed by the constitution. Some of these suits were contested up to appellate courts, but no conclusions were allowed in them till after the 2015 elections.
SENTENCING OF EX-GOVS NYAME, DARIYE TO PRISON
Justice Adebukola Banjoko of the FCT High Court sitting in Gudu, Abuja had on May 30, 2018 and on June 12, 2018 sentenced former Taraba State governor, Rev Jolly Nyame and Plateau State ex-Governor Joshua Dariye to jail respectively. Both Nyame and Dariye were sentenced to 14 years in prison without option of fine just as they were ordered to refund the moneys they misappropriated.
Not since a military tribunal pronounced prison terms on 2nd Republic politicians (some as much as 100 years) has there been a proper trial and conclusive case against high profile politicians as the recent sentencing of the two former governors for corruption. That pronouncement immediately drew attention to Justice Adebukola Banjoko , whose personality gained instant national attention because of the way the Federal Government promptly rewarded her with a secondment to the post of the Chairman of the Code of Conduct Tribunal, CCT. Supreme Court Intervention on PDP Crisis.
After the PDP was defeated in 2015 presidential elections, some stakeholders in the party invited Senator Ali Modu Sherriff to the party in view of his presumed ‘’financial and political clout’’ in order to provide alternative platform to the APC.
No sooner than later he was alleged to have been hijacked by ‘’enemies’’, and at worst assumed a PDP-one-chance-car platform who even his erstwhile political associates and sponsors no longer wished to be identified with, rather they began to denounce and dissociating from him.
While he was told that his time was up and he should quit, he filed a suit before a Federal High Court sitting in Lagos asking the court to stop the national convention. On May 12, 2016 Justice Ibrahim Buba issued an ex pertae injunction barring the PDP from holding its national convention.
Notwithstanding, the PDP went ahead with the convention and elected a caretaker committee. However, Justice Buba on May 23, 2016 sacked the Senator Ahmed Mohammed Makarfi-led PDP caretaker committee, declaring his newly constituted interim committee, as invalid and illegal. He directed the then Inspector general of police, Solomon Arase, to enforce his order and to ensure that the Makarfi’s committee does not take over the party’s national headquarters and that Ali Modu sheriff remains the national chairman of PDP.
On the same day, in Port Harcourt, Justice Abdullahi Liman gave a contrary interim injunction that now seemed to give the approval to the action of the (hitherto discredited) Port Harcourt convention. He gave the order following an exparte motion filed by the members of the Makarfi led faction of PDP. Justice Liman directed Sheriff-led committee to desist from parading themselves as national officer or member of the national executive committee or national working committee as doing so would negate decisions reached at the national convention of May 21.
At the last count, not less than 19 conflicting judgements and orders were in circulation relating to this matter further leading to confusion as to the propriety and legality of those orders and judgments. However, Sheriff appealed against the judgement of Justice Liman of the Federal High Court in Port Harcourt delivered on July 4, 2016 at the Court of Appeal, Port Harcourt Division. And on February 17, 2017, Justices B.G.Sanga and A.A.Gumel gave lead judgement in a split decision of that court upholding the appeal of Sheriff-led committee, just as Justice T.S.Orji-Abadua in the 3-man panel upheld Justice Liman’s decision of July 4, 2016
Not satisfied, Makarfi group approached the Supreme Court on February 27, 2017 asking the apex court justices to discountenance Appeal Court decision and uphold the judgement delivered by Justice Liman on July 4, 2016.
The Supreme Court however on July 12, 2017 upheld that judgment of Justice Liman of the Federal High Court in Port Harcourt, delivered on July 4, 2016, and the subsequent dissenting judgement of Justice T.S.Orji-Abadua, of the Court of Appeal Port Harcourt, which both validated the removal of Sheriff as the National Chairman at the party’s national convention held on May 21, 2016.
Culled from The Leadership
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