FEATURE ARTICLE

Patrick OdionikhereMonday, November 23, 2015
odionik.patrick@hotmail.com
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THE NIGERIAN COURT OF LAW:
PLACE OF MIGHT AFTER THE SUPREME COURT'S GRANT OF STAY OF PROCEEDING DECISION TO MR SARAKI?

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hen absurdity happens you just cannot be indifferent. So the unending Saraki's saga of whether the Code of Conduct Tribunal has power to try him is in part the purpose of this essay on one hand and the Court and its understanding of dispensation of justice in Nigeria to a large extent on the other hand!

The powers of all Courts in Nigeria are well defined in the Constitution. Courts are important non political organ of government whose agents are Judges and Civil Servants. Judges are governed by laid down rules and supposedly hold intellectual and critical mind for making sound judicial decisions. They are usually well respected persons of Honour in every system because of their status and responsibilities. Judges are impartial passive umpire especially in adversarial system of law. They rule on facts and laws and in accordance to the doctrine of judicial precedent akin to all common law systems - where superior Court's decisions must be followed.

So within the Court's hierarchy, each Court has its own position in dispute resolution whether on criminal or civil matters. In light of this, the way Judges goes about their duties are very significant in the development of any nation and its case-laws.

Now, it is important to examine Mr Saraki, senate president and the scandalous back and forth Court theatre! That Mr Saraki has been running from one Court to another as to whether Code of Conduct Tribunal has power to try him is legitimate but fruitless enterprise in light of the Third Schedule of the Constitution. Which gives investigative power to Code of Conduct Bureau to charge any public officer before the Code of Conduct Tribunal for any violation of the conditions of Code of Conduct for public officers as set in the Fifth Schedule Section 11 of the Constitution, in addition to criminal charges being concurrently pursued in other Court of law - Section 18(1) (6).

Clearly, the Code of Conduct Tribunal lacks criminal prosecution capacity. But has power to declare that a public officer has violated the provisions of Section 11. That the Courts get entangled by the so-called equitable injunction to stop the Code of Conduct Tribunal from even opening a case against Mr Saraki lacks judicial understanding in view of the fact that every Court and Judge have defined sphere of authority.

As such, it is hard to believe that a High Court Judge in Abuja could be asking a fellow Judge of the same instance to appear before his own Court for failing to respect his order of stay of proceeding against Mr Saraki even though the latter's action is backed by law as set in Section 251(r) of the Constitution and Fifth Schedule Section 11. If is not might, a Court ought to be a place for sound judicial decision making and for upholding rule of law. That a Court of law could dare to grant an injunction of stay of proceeding in respect of public offence's trial is not only strange but perverse and abuse of power. Any injunction no matter the legislative force is an equitable remedy, which must come after the law. It can only be invoked if irreparable damage for which no financial compensation will put claimant in the original position when denied. All the same, it is rarely or never used in many jurisdictions except in Nigeria where it is the order in every Court proceeding to stop cases perpetually from being concluded, to cause undue delay and high legal costs. It is madness and judicial fraud to pervert course of justice that should not be tolerated any longer. Not surprising that Mr Saraki resorted to it, which the Supreme Court has granted in error.

The court of appeal got it partially right when it refused to grant the order but failed in its supervisory function to deny leave of appeal to the Supreme Court. Nonetheless, the Justices at the Supreme Court whether apparent or inherent lacks authority to rule on the injunction of stay of action to Mr Saraki on following grounds:

  1. The decision on which the appeal came about did not result from decision of a Court with original jurisdiction;

  2. Section 232 (2) states: no original jurisdiction shall be conferred upon Supreme Court on criminal matters;

  3. Since the issue of injunction did not arise at the primary hearing from the Court of original jurisdiction (Code of Conduct Tribunal) by way of reference as to interpretation or application of the Constitution (Section 295), leads to the conclusion that the Supreme Court acted illegally;

  4. The Supreme Court by its grant of stay of proceeding to Mr Saraki has elevated its role to judicial law making instead of interpretation of laws; thus setting dangerous precedent;

  5. The Supreme Court is not a Constitutional Court but supervisory Court - ensuring that subordinate Courts rule according to law.

It is unfortunate that Mr Mike Ozekhome in his essay tried but failed in substance for supporting the decision of the Supreme Court by quoting irrelevant Constitutional provisions: "Awomolo -Falana's Comment- A case of Unfortunate Sentiments Vs Law." In as much as we commend all those who have found time to comment on this judgement, we must remove emotion from the debate and stop giving misleading opinion if lacking adequate critical knowledge on the subject matter. The debate should be left to those who have the time and depth of knowledge of law to lecture the Supreme Court's Justices about the likely fallout from their decision. Their decision is not only repugnant but obstruction and subversion of justice as well as wrongful judicial activism. This debate is a challenge on all Nigerian law teachers. They must seek audience with President Buhari regarding this judicial fiasco and make appropriate recommendation to the Nigerian Law Commission.

Besides, the Justices in the Supreme Court must seek ways to overrule themselves immediately or else, Nigeria is heading for a people's revolt and judicial chaos if the injunction granted to Mr Saraki is allowed to stay. Are we prepared for scenarios where every criminal starts seeking injunctions to stop prosecution because of the doctrine of judicial precedent on which our legal system stand or should lower Court Judges go separate ways if they think superior Justices have erred in law? This is not a healthy path. Equally, we cannot afford that Nigeria's case-laws are distorted with wrong judicial decisions.

What about Election Tribunal decisions - Rivers and Taraba, whereby Judges granted orders that were not asked by pursuant and in doing so, over-stepped its power in bringing the wrong people without democratic legitimacy to public office?

It cannot be right that Judges that are supposed to be neutrally sound decision-makers become lawmakers outside of political control. More worrisome though are instances where we hear that Judges go to prisons and start freeing inmates for waiting too long for trials. Only the President and Governors have such powers under prerogative of mercy which can only be exercised after a decision of punishment has been issued by a competent Court of Law. No Judge has power to set any inmate free without being tried despite the illegality of such detention except that of ensuring speedy trials, punishment or acquittal.

Again, where is the rationality and proportionality that petty thieves get no injunctions to stop trials and in most times sentenced to long term incarceration; whereas those who steal public money are been awarded injunctions not to appear before any Judge or face any form of punishment? It is unacceptable for a people not under colonial rule to be subjected to disproportionate and incoherent rules?

Nigerian people deserve good governance and the Judges are part of the problem as well as the solution. The Court should not be place of might as it is at the moment; rather, it should be sanctuary for justice for all no matter the status.

To President Buhari, your corruption war must begin with the Judges otherwise you may be left with a country but no people to govern!

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