‘…IN a situation where the rule of law is jettisoned, anarchy will be the sole beneficiary’. Atanda Fatayi-Williams C.J.N
The above lines extracted from the memoirs of the learned jurist, who was the Chief Justice of Nigeria between 1979 and 1983, aptly resonates the primacy of the rule of law in any society. The Judiciary, as the third estate of the realm, bears the constitutional burden of resolving disputes between individuals and government, and between the various tiers and organs of government. Contingent on this constitutional duty of adjudication, is the power of interpreting the laws of the State, including the constitution, which Hans Kelsen in his Pure Theory of Law and State identified as the grund norm or fons et origo, from where every law in a legal system derive its validity. Therefore, any attempt by an organ or tier of government to take-over this sacred constitutional duty of the judiciary is tantamount to an affront and deliberate desecration of the rule of law.
It is on the basis of the foregoing that one finds the resolution of the Nigerian Senate of Tuesday, July 30th, 2019, directing the Governor of Edo State to, within one week, issue a fresh proclamation for a second inauguration of the Edo State House of Assembly, as disdainful, distasteful and a by-product of a theatre of legal absurdities. Nigeria is not practising a feudal system of government, wherein an overlord issues directives to those within his vassalage. Equally, the Executive Governor of Edo State is not a vassal of the Nigerian Senate, nay the National Assembly. The House of Representatives had earlier on issued a resolution on the same matter. It is worth mentioning that this earlier resolution of the lower house attracted strong words of condemnation by notable Nigerians, including the leader of the Ijaw Nation, Chief E.K. Clark.
It is therefore sad to note that the Nigerian Senate, which has a good number of former state governors in its fold, will allow the passage of a resolution, which grossly offends the principles of separation of powers, the rule of law and the doctrine of lis pendens. The Senate’s resolution is not only unconstitutional, but it is also very offensive, because the subject matter of the resolution, viz; the constitutionality or otherwise of the proclamation made by the governor and the inauguration of the House, is already before two courts in Benin city and two other courts elsewhere; One at the Federal High Court Benin, which issued a restraining order on the subject matter on 3rd July, 2019 and another at the Edo State High Court No. 5, Benin. The matter at High Court No. 5, Benin, was filed by the 12 lawmakers-elect in Abuja, loyal to Adams Oshiomhole, the National Chairman of the APC. When the matter came up on the 24th of July, 2019, the application for an injunction sought by the Abuja lawmakers-elect could not be moved, due to issues arising from legal representation and proper forum. The matter was adjourned to October 17th, 2019, for hearing. So, in the light of the issues that have already been joined by the same parties in court; on the same subject, can it be rightly said that the resolution of the Senate is legal, let alone constitutional? The answer to this poser lies in Section 4(8) of the 1999 Nigerian Constitution, as amended and the decision of the Nigerian Supreme Court in Olori Motors Co. Ltd v. UBN (2006) Pt. 989, p. 586 Pp. 601-602.
Section 4(8) of the 1999 Nigerian Constitution provides that:
“Same as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.” In the Olori Motors case (supra), the Nigerian Supreme Court held that the doctrine of lis pendens, which preserves matters already pending in court from external determination, is part of the Nigerian 1999 Constitution. Precisely, Justice George Oguntade stated that the doctrine of lis pendens came into existence as a part of the common law and its sole purpose is to ensure that the jurisdiction of the court in disputes is not rendered ineffectual through the destruction or transfer of the subject matter of litigation. He therefore held that the application of the doctrine of lis pendens has gained constitutional importance by virtue of Section 6(6)(a) and (b) of the 1999 Nigerian Constitution, which guarantees the exercise of judicial powers, exclusively, by the Courts of law.
The House of Representatives after passing their resolution put up the argument that the National Assembly was not listed on the restraining order of 3rd July by the Federal High Court Benin City. But, the Nigerian Senate cannot claim ignorance of Suit No. FHC/PH/CS/159/2019, wherein the Federal High Court restrained the Clerk, the National Assembly, the President of the Senate and Speaker of the House of Representatives, inter alios, from taking any decision relating to the inauguration of the Edo State House of Assembly, pending the determination of the suit.
Unfortunately, the resolution of the Senate patently violates this order of court and the previous order of July 3rd, 2019. One must quickly single out for commendation, Senators like Owelle Rochas Okorocha who spoke against the making of the controversial resolution. The Senate President ruled all dissenting Senators out of order and in an un-parliamentary macabre dance, used his gavel in preventing an open voting by members, in view of the apparent division of the House. What a discordant resolution!
In concluding this piece, I wish to commend the immortal words of the American civil rights legend, Martin Luther King Jr, who said; ‘peace is not the absence of conflicts, but the presence of justice’. Is it the duty of the Nigerian Senate, nay the National Assembly, to dispense justice in a legal conflict already before the courts? The answer cannot be in the affirmative in a sane democratic society, where the rule of law prevails over the wish and fancies of any man. This resolution is an anti-thesis of respect for the rule of law. It remains an unconstitutional act that cannot pass through the crucible of legality in any court of law.
- Andrew Adaze Emwanta, is a Constitutional Lawyer and Lecturer in the Department of Public Law, Faculty of Law, University of Calabar, Calabar, Nigeria.
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