The Oracle

Nigeria in Search of an Enduring Political Structure: Imperative of Structural Reform (Pt. 1)

Published

2 months ago

July 22, 2023

Eric

By Mike Ozekhome

INTRODUCTION

Since the Southern and Northern protectorates were amalgamated in
1914 by Lord Frederick Lugard of the then British colonial government and gained political independence from Britain on October 1 1960, Nigeria as a political entity or socio-political structure has been under threats of disintegration, a threat which exists as a result of lack of understanding and harmony among the different ethnic nationalities that make up Nigeria as an independent and a sovereign state. These factors of lack of understanding, unity, peace and harmony among these ethnic nationalities that constitute the Nigerian state, may be attributed to differences or diversities evident in the culture, language, religion and most importantly the worldview of the various ethnic nationalities that make up the political structure called Nigeria.

Nigeria as a country was a British colony idea and shared boundaries with French colonies. However, the manner in which the colonial boundaries were drawn compounded the problems of the colonies. The colonial boundaries did not take into account the ethnic, religious, cultural and geographical lines. Consequently, some culturally, ethnically, and religiously homogenous and contiguous communities were arbitrally severed and forcefully kept in different colonial authorities. And because these communities had been interacting culturally, ethnically, religiously and occupationally before the deluge of imperial occupation, and because the various colonial authorities did not seek integration of the severed communities but, instead their separation, consequent upon the divergent interests of the respective colonial authorities, seeds of discord, disharmony and conflicts were sown in these communities. New boundaries were created and scarce resources became competition objects.

It was not, therefore, surprising that after political independence, when Africans took over the reins of power, the various communities which were suffering under the weight of colonial abuse, consequent upon their “exile” resulting from their forceful separation and excision from their Kith’s and Kins, rose up in gallant defense of their “territorial” integrity and “sovereignty”.

They demanded to be re-integrated with their kith’s and kins wherever they might be in the post independent African countries.
However, the demands and movements rather than help in resolving the conflicts, generated new conflicts. It is our contention that rather than seek for re-integration with kith’s the emphasis should be on peaceful co-existence. Needless to say, African countries with greater mix of these colonial anomalies impinging on the free operation and functioning of pre-Berlin Conference ethnic, religious, cultural and spatial identities and sensibilities, faced enormous, in fact,
gargantuan development tasks mediated and modulated by the homogeneity or heterogeneity of these critical determinants of sustainable development. Sustainable development entails not only economic development but equitable distribution of economic benefits such as equitable provision of basic needs, remedy of social inequities and environmental damages. It can be achieved only in time of peace.

NIGERIAN, AN ARTIFICIAL CREATION

Nigeria’s creation was fundamentally flawed with the British super-imposing Northern hegemony and dominance over Southern Nigeria. Nigeria is an artificial creation. Indeed, the name Nigeria was given to her by a young British journalist, Miss Flora Louisa Shaw (who later married Lord Lugard) on 8^th January, 1897. What is today known as Nigeria was ruled by the Royal Niger Company around 1886 to 1899. Following the revocation of its character, the Royal Niger Company sold its holdings in the territory which later became Nigeria to British for £865,000. This was the price for which Nigeria was purchased. (i.e., about N 735. 2 Million only). By 1900, the Southern Nigeria Protectorate and Northern Nigeria Protectorate passed from the Royal Niger Company to Britain. By 1^st January, 1914, these two territories were amalgamated as the Colony and Protectorates of Southern and Northern Nigeria. The fusion of these two territories was done for political and commercial reasons without any consideration on the preferences of the inhabitants of these territories. These people already had their set ways of life – the Benin and Oyo Empires; Hausa City States; Igbo City States; Kanem Bornu, Ile-Ife civilization cradle of the Yoruba race. We already had great historical figure like Oba Ovonranmwen Nogbaisi of Benin Empire, King Nana of Itsekiri, King Jaja of Opobo, Queen Amina, Mal Idriss Alooma, Queen Idia, etc.

THE INDEPENDENCE

Nnamdi Azikiwe, Ahmadu Bello, Obafemi Awolowo, Sir Tafawa Balewa, Chief Anthony Enahoro, Joseph Tarka, Chief Dennis Osadebe, Herbert Macaulay, etc., who fought, unarguably, for the flag independence of Nigeria from Britain, in reality, projected the ideas of their enclaves. For example, while people from the Southern part of Nigeria craved for independence in the 50’s, the people from Northern Nigeria felt the timing was wrong. Chief Anthony Enahoro’s motion for Nigeria’s Independence suffered setbacks in parliament on several occasions with the northern members of parliament staging a walkout as a consequence of the motion. However, in 1953, Enahoro initiated move to self-government through the motion he sponsored in the Western House of Assembly. This eventually led to Nigeria’s independence on 1^st October, 1960. While it could be argued that the people currently occupying the territory called Nigeria were never consulted before the amalgamation of 1914, all of them lifted the Nigerian flag the moment the Union Jack was lowered in October 1, 1960.

Many who felt granting independence to Nigeria would usher in unprecedented growth, were surprised to see unprecedented corruption, looting of the nation’s treasury and mismanagement of the country by the supposedly founding fathers of the Country. The military that came to salvage the problem on 15^th January, 1966, even compounded it by their lop-sided manner of cleansing the system. There is a conspiracy theory that the Igbos used the coup to pave way for General Aguiyi-Ironsi to be Head of State of Nigeria. The Northern members of the Nigerian Army did not hold back as they retaliated over the killing of Ahmadu Bello, Tafawa Balewa, Maimalar and others by also slaughtering many innocent Igbo soldiers and civilians through a genocidal ethnic-cleansing. This eventually led to the Nigerian Civil War. There have been many coup d’états in Nigeria since the 1966 coup d’état. However, since the year 1999, there has not been any coup. There have been different agitations springing up in some parts of the country.

If there is one thing all Nigerians are agreed upon, it is the belief – fueled by disappointment and frustration – that have we have failed to fulfill our potential as a nation, we are a long way from living up to the dreams of our founding fathers. Right from our 21st year of independence (when we hypothetically came of age), till date, few issues have consistently featured in our national discourse (particularly in the media) as the National Debate. By this is meant the seeming past time of virtually every Nigerian to bemoan our experience as a nation. Simply put, Nigeria is a failed, broken nation. Apply every conceivable yardstick, according to every knowledgeable (and not-so-knowledgeable) expert, the country is not just a disaster waiting to happen – IT HAS ALREADY HAPPENED.

THE DIAGNOSIS

Virtually every thing that can possibly go wrong, is wrong with our country: insecurity, collapsed infrastructure, failure of the public school system, an economy in shambles (epitomized by the free-fall of the value of the Naira and spiraling inflation), an unremitting insurgency, etc. The list is endless. With such a litany of woes, it is no surprise that many Nigerians have since given upon their country. But is all hope lost? Is the situation irredeemable? Can Nigerian be salvaged? If so, what does it take? As usual, the first step in tackling any problem is accurate diagnosis. Accordingly, in attempting to deconstruct “The Nigerian Conundrum”, the first task is to assess the scale of the challenge –to probe the depth of the rot.

In his book “The Trouble with Nigeria,” Professor Chinua Achebe surmised that Nigeria’s problem “is simply and squarely a failure of leadership . . . The Nigerian problem is the unwillingness or inability of its leaders to rise to the responsibility, the challenge of personal example, which are the hallmarks of true leadership”. He concluded that, with good leaders, we can overcome the challenges of tribalism, lack of patriotism, social injustice, mediocrity, indiscipline and corruption. Those sentiments were echoed a generation later by a notable scholar, who, when asked to identify the key “Issues/ Problems with Fix(ing) Nigeria “offered the following response:

Complex ethno-religious composition that gives rise to tribalism,
High power distance culture that makes institutional leaders see themselves as ‘Lords’ that cannot be questioned rather than as servants of the people,
Corruption on steroids,
Weak institutions, and
High illiteracy/poverty rate, that make it easier for the political elite to weaponise poverty.

I will add, state captured by elite buccaneers and weak followership/civil society.

As pointed out Ehi Braimah “Bad planning, wrong choices/priorities, egregious greed and corruption are largely responsible for Nigeria’s fall from grace”. By that, he was alluding to a time (in 1974), when Nigeria was reportedly so prosperous, that she lent money to the International Monetary Fund, the IMF. The source of that revelation, Alhaji’ Abubakar Alhaji, the then Permanent Secretary of the Federal Ministry of Finance, identified over-dependence on oil and the huge cost of governance at all levels as contributing to the comatose state of our economy.

A FUNNY COUNTRY: MISPLACED PRIORITIES

*Naija & her ways*

79,000 Nigerian muslims spent $5,000 each to go to Saudi Arabia to stone and kill the devil with stones. $395 Million from a poor underdeveloped Country like Nigeria. Saudi economy is growing through Tourism. 50,000 Christians went to Israel to Kiss Jesus statue there and attach JP to their names. $250 Million =$645 Million – (over Half a BILLION Dollars ) …$1.3 billion. Let’s not convert it to naira because some of us will not sleep, but let’s try. (782 billion naira, Over half a Trillion naira.)

This amount can be used to fund fresh graduates who have innovative Ideas and in turn, create millions of Jobs. Since we have been traveling to Israel and Saudi Arabia, has our Economy improved? What is Government’s business with pilgrimages? What is wrong with us?

Africans (especially Nigerians) what Is wrong with our logic?

Nowhere is the rot more noticeable than in the value of the Naira. From a high of US dollars to one naira back in the Seventies, it is shocking that the Naira has now plunged to an all-time low of N740 to the dollar. In terms of education, our public universities have been shut for the umpteenth time because of a prolonged strike (8 months strikes and counting) by lecturers over lack of payment of a mere living wage. Apart from threatening to proscribe their union, the Federal Government’s latest clearly desperate, response, was to ask affected students to sue the lecturers’ union.

FUNTIMES

“Dear Geography teacher, thanks for deceiving me. If the earth is rotating, what am I still in Nigeria? mtcheeeew” – Anonymous.

Opinion

The Oracle: Disputes Between States and the Federation: Examining the Jurisdiction of the Supreme Court (Pt. 2)

Published

2 days ago

September 29, 2023

Eric

By Mike Ozekhome

INTRODUCTION

The first part of this piece was foundational: it discussed the import and legal bases of jurisdiction as an incident of judicial power; how it is determined and the highest institutional source of its expression – the Supreme Court. We analysed the composition of the court and factors which affect its jurisdiction.

In this piece, we go deeper into the constitution of the apex court in terms of its membership and how it impinges on its jurisdiction. We then move on to a discussion of how the subject matter of a case determines a court’s jurisdiction and the conditions precedent to assumption of jurisdiction by a court.

We then dwell, in ever greater detail, with the constitution of the apex court, before going on to define ‘controversy’ and ‘dispute’; the latter, first generally, before concluding with its meaning for the purpose of invoking its original jurisdiction. Enjoy.

THE CONSTITUTION OF A COURT AND THE QUALIFICATION OF ITS MEMBERS

MEMBERSHIP JURISDICTION

Where a court is not duly constituted as to the number and qualification of the judges or justices to sit in adjudication over a matter, the court is robbed of jurisdiction to adjudicate on that matter. For instance, the number of Justices required to sit at the Supreme Court to hear a case to hear a case that borders on its original jurisdiction is seven (7). Thus, where five (5) Justices sit and adjudicate over a matter, the court will clearly be without jurisdiction due to improper constitution. Again, assuming a seven-man panel sits on the matter and one of the Justices is only thirteen (13) years post-call at the Bar, the entire panel is disqualified and any exercise it carries out will fail, as no amount of beauty in its adjudication can save it.

SUBJECT MATTER JURISDICTION

For a court to assume jurisdiction, the subject matter must be within its jurisdiction. The Constitution or statute that creates the court prescribes the subject matter to be adjudicated upon. Consequently, where a matter falls within the subject matter of a court, the court is said to have a subject matter or substantive jurisdiction; but where it falls outside the subject matter, the court is said not to have jurisdiction. Any exercise thereto in such a case shall be rendered in futility, as its decision shall be quashed on appeal. For instance, a dispute between two States, or between a State and the Federation is within the subject matter of the Supreme Court’s original jurisdiction. Consequently, where a Supreme Court that involve parties other than these, any exercise thereto shall be rendered in futility, and any decision emanating from it shall also be quashed. The scenario plays, out where a dispute which involves parties, over before which the apex court has jurisdiction is filed before any other court.

CONDITIONS PRECEDENT TO ASSUMPTION OF JURISDICTION

For a court to properly assume jurisdiction, “due process” must have been followed in initiating the same. However, we must bear in mind that there could be a mere unsubstantial technicality that does not affect the competence of the court, and a substantial technicality which affects the competence of the action and robs the court of its jurisdiction. In the case of CITY ENG. (NIG) LTD V. NAA,the court held that there is a distinction between mere or unsubstantial technicality in proceedings that are competent and within the jurisdiction of a trial court, and a substantial technicality which amounts to a condition precedent to the commencement of an action and which renders the proceedings incompetent and manifestly or incurably defective. Interestingly, while the former may be waived, the latter, as a general rule, may not be waived because acquiescence does not and cannot confer jurisdiction to a court. For instance, while a procedural rule of courts may be waived where it does not occasion a miscarriage of justice, statutory provisions containing condition precedent to the commencement of an action cannot be so waived.

To further appreciate this position, some examples of conditions precedent which, if not complied with, may render proceedings incompetent and rob the court of jurisdiction are, amongst others, as follows:

Giving Pre-action Notice
Limitation Act
Where there is no service of the court process
Locus Standi
Geographical Territory
Financial Limit.

THE JURISDICTION OF THE SUPREME COURT OF NIGERIA

The Jurisdiction of the Supreme Court of Nigeria is provided in Section 232 of the Constitution and the Supreme Court (Additional Original Jurisdiction) Act, 2002. The jurisdiction may original/exclusive, appellate or supervisory. However, this discourse focuses on the original/exclusive jurisdiction of the Supreme Court, and the same is limited only to disputes between States and the Federation. For purposes of clarity, it is necessary to reproduce the provisions of the law – verbatim ad literatim.

Section 232 (1) of the 1999 Constitution, as amended provides thus:

“The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

(2) In addition to the jurisdiction conferred upon it by subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly. Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.”

In A.G. OF THE FEDERATION V. A.G, OF ABIA STATE & 35 ORS, Belgore, J.S.C (rtd); examined the provisions of Section 232(1) of the 1999 Constitution and held that:

The sub-section presupposes that there must a dispute either between the Federation and States or between States; and

The disputes must pertain to the existence of a legal right or its extent; it must also relate to a question of law or a fact or both.

Section (1) and (2) of the Supreme Court (Additional Original Jurisdiction) Act, 2002, provides thus:

“In addition to the jurisdiction conferred upon the Supreme Court of Nigeria by section 232 (1) of the 1999 Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between–
the National Assembly and the President;
the National Assembly and any State House of Assembly; and
the National Assembly and the State of the Federation,

In so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.

Nothing in this Act shall be construed as conferring original jurisdiction upon the Supreme Court with respect to any criminal matter.”

DEFINITION OF TERMS

“DISPUTE”

This takes us to the meaning of “dispute” generally. The word “dispute” is not defined in our Constitution. However, the Courts have had cause to pronounce on its meaning. In Webster’s New Twentieth Century Dictionary (unabridged); the term “dispute” is defined as being synonymous with controversy. It defines it as “an attempt to prove and maintain one’s own opinions, argument or claims of another, controversy in words.” The Black’s Law Dictionary, (5^th Edition), define ‘dispute’ as: “A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim or demand on one side, met by contrary claims or allegation on the other. The subject of litigation is the matter for which a suit is brought and upon which issue is joined…”

“CONTROVERSY”

A dispute under Section 232(1) of the Constitution (the section dealing with the original jurisdiction of the Supreme Court) must be one that is appropriate for judicial determination. It includes suits of civil nature and must raise an issue or question (whether of law or fact) on which the existence or extent of a legal right depends. It must be real and substantial. It must be definite and concrete. The word “controversy” was considered in the case of AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONN V HARWORTH. In that case, Chief Justice Hughes said: “a controversy in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character, from one that is academic or moot. … It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”

In A.G. OF THE FEDERATION V. A.G, OF ABIA STATE & 35 ORS, the word ‘dispute’ was defined by my Lord S.M.A. Belgore, J.S.C., C.J.N. (as he then was), as follows: “To my mind, a dispute involves acts of argument, controversy, debate, claims as to rights, whether in law or fact, varying opinions, whether passive or violent or any disagreement that can lead to public anxiety or disquiet. I will not close the category of disputes.” A dispute is a conflict of claims or rights or demands on one side met by contrary allegations on the other side.

“DISPUTE” FOR THE PURPOSE OF INVOKING THE ORIGINAL JURISDICTION OF THE SUPREME COURT

In A.G ABIA v. A.G FEDERATION, Tabai, J.S.C. held thus: “With respect to the construction given to the word “dispute”, the opinion of the Court (Per Belgore, J.S.C. as he then was) is quite apposite in determining the issue of this Court’s jurisdiction in this case. On page 701 he said of “dispute” thus: ‘…A dispute is a dispute whether apparent or lingering. It is remarkable that in the counter-claims to the suit some States have admitted there is a dispute. This Court in Attorney- General of Bendel State V. Attorney-General of The Federation; Attorney-General of The Federation V. Attorney-General of Imo State, set out clearly what is a dispute to the extent of using authoritative English dictionary. To my mind, a dispute involves acts of arguments, controversy, debate, and claims as to rights whether in law or fact, varying opinions, whether passive or violent or any disagreement that can lead to public anxiety or disquiet.’”

The same Belgore, J.S.C. (as he then was) had earlier in A.G, OF THE FEDERATION v. A.G OF ABIA STATE, & 35 ORS held, inter alia, that the term dispute as used in section 232(1) of the 1999 Constitution “…Involves acts of arguments, controversy, debate, claims as to rights whether in law or fact, varying opinions, whether passive or violent or any disagreement that can lead to public anxiety or disquiet.”

To be continued…

Opinion

The Oracle: Disputes Between the States and the Federation: Examining the Jurisdiction of the Supreme Court (Pt. 1)

Published

1 week ago

September 22, 2023

Eric

By Mike Ozekhome

INTRODUCTION

The judiciary is the third arm of government and the repository of the powers of adjudication and settlement of disputes. It is a very central arm of government – with overwhelming responsibilities and duties. The judiciary is indispensable in all political administrations – no matter the model or nomenclature of such government. It is the custodian of the Constitution and gatekeeper of the laws in any system of government. It adjucates on disputes among the citizens; between citizens and governments; and between the governments interest.

Under the Constitution of the Federal Republic of Nigeria, 1999, as altered, the Judicature is provided for in Chapter 6. It should be noted that section 6 of Constitution also empowers the National Assembly to make laws for the establishment of some courts and conferment of jurisdiction on same. This paper discuses the jurisdiction of the Supreme Court to entertain disputes between States and the Federation.

UNDERSTANDING OF THE CONCEPT “JURISDICTION”
Jurisdiction simply means the authority which a court possesses to decide matters submitted to it. It is the whole basis of taking cognizance of matters presented before a court in a formal way, for the purpose of adjudication. SPDC Nig. Ltd Vs Isiah (2001) 11 NWLR Pt. 723, Pg 168 @ 179; Mobil Producing Nig Unltd v. LASEPA (2003) FWLR Pt. 137, pg 1029 @ 1052).

The Apex Court graphically illustrated this position in ATTORNEY GENERAL OF ANAMBRA STATE vs. ATTORNEY GENERAL OF THE FEDERATION (2007) All FWLR Pt. 379 pg. 1218 @ 1280 where it held, per I.T Muhammad JSC (as he then was) thus:
“Jurisdiction to a court of law is equated to blood in a living animal. Jurisdiction is the blood that gives life to the survival of an action in a Court of law, without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility.”

Jurisdiction is the limit imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process, by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of reliefs sought. Petroleum (Special) Trust Fund vs. Fidelity Bank & Ors (2021) LPELR-56625(SC) at Pp 44 – 45 Paras F – C. In the fairly old case of AG FEDERATION v. AG OF ABIA STATE & ORS, (2001) LPELR-24862(SC); pp 114, paras C-D. per, Adolphus Godwin Karibi – White, JSC, (dissenting), illuminated noted that:

“The word jurisdiction means the authority the Court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision (See Ndaeyo v. Ogunnaya (1977) 1 SC 11; National Bank v. Shoyoye (1977) SC 181).”

The Court of Appeal also took a bite in determining the meaning of jurisdiction in the more recent case of AJAYI v. ALARAB PROPERTIES LTD, (2021) LPELR-56073(CA) per UGOCHUKWU ANTHONY OGAKWU, JCA at (Pp 24 – 25 Paras F – B), thus:
“Now, the concept of the jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class, or (ii) the right of a Court to exercise its powers over a particular subject matter, or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all.”

HOW TO DETERMINE JURISDICTION: THE SUPREMESOURCE

On what determines jurisdiction, the intermediate court of Appeal addressed the matter in DEPUTY SHERRIF, FHC LAGOS JUDICIAL DIVISION & ANOR v. USIEBEMHEN, (2022) LPELR-57472(CA); Per Abubakar Sadiq Umar, JCA, At Pp 16 – 16, Paras B – D, thus:
“In determining whether a Court of law has jurisdiction to entertain an action, the Court must as a matter of law examine carefully the pleadings and other averments of the Claimant in the statement of claim. In order words, questions relating to locus standi (legal standing to maintain an action); whether a suit discloses a reasonable cause of action or constitutes an abuse of the Court process, it is the duty and incumbent on the Court to scrutinise and dissect the Claimant’s pleadings which captures the grounds and the interests for approaching the Court to ventilate a grievance.”

KEY POINTS TO NOTE ABOUT JURISDICTION

Jurisdiction is not just a procedural matter. It is a substantive issue in litigation. An objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed, and the party raising such objection need not bring it under any rule. See A.G. KWARA STATE vs. OLAWALE. (1993) 1 N.W.L.R (Pt.272) 645 at 674-675. Issues of jurisdiction cannot be waived, nor can they be conferred by parties consenting among themselves to vest a Court with jurisdiction where none exists. See NIGERITE LIMITED vs. DALAMI (NIG.) LIMITED. (1992) 7 N.W.I.R (Pt.253) 288 at 297.

ESTABLISHMENT OF THE SUPREME COURT OF NIGERIA
The Supreme Court is established in Section 230 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In sub-section (2) of Section 230, it is provided that the said Court “shall consist of the Chief of Nigeria and such number of Justices of the Supreme Court, not exceeding twenty one as may be prescribed by an Act of the National Assembly.” It is therefore worthy of note that, the phrase – not exceeding twenty-one is an implied amendment of section 210 of the 1979 Constitution and section 228 of the 1989 Constitution, which provided for a maximum of fifteen (15) Justices. Thus, section 230 is targeted at expounding the frontiers of the number in order to reduce the burdensome workload on their Lordships. The use of the word “shall”, connotes mandatory, while ‘and’ is conjunctive.

APPOINTMENT OF JUSTICES OF THE SUPREME COURT-HOW MADE

Section 231(1) and (2) of the Constitution, provides that:

“The Chief Justice of Nigeria and other Justices of the Supreme Court shall be appointed by the President on the recommendation of the National Judicial Council subject to confirmation by the Senate.”

By the provisions of Section 231(4) and (5), where the office of Chief Justice of Nigeria becomes or where vacant the person holding the office is for any reason unable to perform the function of his office, the President of Nigeria has the power to appoint the most senior Justice of the Supreme Court to perform those functions for not more than three months, except as otherwise recommended by the National Judicial Council (NJC). However, the President cannot re-appoint a person whose appointment has lapsed. It is therefore always advisable that the acting appointment is confirmed to avoid a constitutional crisis. It should be noted also that by virtue of the provisions of Section 231(3), a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen (15) years.

Having blazed the trail through a brief expository of the Supreme Court of Nigeria, it is germane at this juncture to examine what affects the jurisdiction of a Court, before delving into the crux of this vista.

FACTORS THAT AFFECT THE JURISDICTION OF A COURT

It is trite that an objection to jurisdiction is undoubtedly an objection to the competence of the court to entertain such a suit. See the case of WORGU BOGGA LTD AND ANOR V. HON. MINISTER OF THE FEDERAL CAPITAL TERRITORY (2009) LPLER- 20032

The determinant factors of Jurisdiction were laid to rest in the celebrated case of MADUKOLU V. NKEMDILIM. (1962) SCNJ 72 It was held that a court is competent to adjudicate upon a case when:

A. It is properly constituted with respect to the number and qualification of its membership;

B. The subject matter of the action is within its jurisdiction;

C. The action is initiated by due process;

D. Any condition precedent to the exercise of its jurisdiction has been fulfilled. Soyannwo v. Akinyemi (2001) 8 NWLR (pt. 714) p. 95 at 116 Paras H – B; Evbuomwan v. Bendel Insurance Co Plc (2001) 1 NWLR (pt. 694) at 396 para 3.

These factors are Joint, and the absence of any one affects the jurisdiction of the court in deciding the Court of Appeal in the case. See the case of CAVENDISH PETROLEUM NIGERIA LTD & ORS v. DERIBE & ANOR, 2014) LPELR-23350(CA), per Ibrahim Shata Bdliya, JCA, at Pages 21 – 24 Paras F – A) wherein it held that: “A Court is said to have jurisdiction and therefore competent to determine a suit when: (a) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or other; (b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. These preconditions for a Court to be seized of jurisdiction are conjunctive and the non-fulfillment or absence of any of them would automatically rob the Court of jurisdiction to hear and determine the suit. See Drexel Energy & N.R. Ltd. v. Trans Inter Bank Ltd. (2008) 18 NWLR Pt.1119 P.388 @ 417. For a Court of law to have jurisdiction to hear and determine any suit, three (3) basic requirements must be met or satisfied as enunciated in the case of Madukolu v. Nkemdilim (1962) 2 All NLR P.581, which are thus: (a) “It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or other: (b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis supplied).

To further appreciate this discourse, it is quite pertinent to examine these factors.

To be continued...

THOUGHT FOR THE WEEK

“Could we forbear dispute, and practise love, we should agree as angels do above”. (Edmund Waller).

Opinion

The Oracle: Nigeria in Search of Enduring Political Structure: Imperative of Structural Reform (Pt. 8)

Published

2 weeks ago

September 16, 2023

Eric

By Mike Ozekhome

INTRODUCTION

In the past 7 weeks we have been on this treatise. Last week, we discussed our past experiments with constitutional democracy, contrasting our colomiatera Constitutions with those of the period since independence. We then suggested two options for the way forward: a sovereign national conference and a brand-new Constitution and concluded it with a comparative review of some foreign countries, such as Iraq, Kenya and South Africa.

In today’s episode, we shall continue the dissection of the foreign dimension by considering the experiences of Iraq, Bangladesh, Morocco, Egypt, Eritrea and Tunisia, before rounding off with the American example of people’s Constitution. Please enjoy the last part of our treatise.

A NEW CONSTITUTION: HISTORICAL PERSPECTIVES (continues)

IRAN

THE DECEMBER 1979 IRANIAN CONSTITUTIONAL REFERENDUM
A proposed new Constitution which would make Iran an Islamic Republic, introduce direct elections for the presidency, create a unicameral parliament and require any constitutional changes to go a referendum was proposed by the Iranian Government. To bring this about, a constitutional referendum was held in Iran on 2ndand 3rd December, 1979. The new Islamic constitution was approved by 99.5% of voters at the Referendum.

BANGLADESH

THE 1991 BANGLADESHI CONSTITUTIONAL REFERENDUM
A constitutional referendum was held in Bangladesh on 15th September, 1991. Voters were asked “Should or not the President assent to the Constitution (Twelfth Amendment) Bill, 1991 of the People’s Republic of Bangladesh?” The amendments altered the existing Constitution and reintroduced of Parliamentary system of government. It also abolished the position of Vice-President and provided that the President be elected by Parliament. 83.6% of Bangladeshis voted in the referendum, with a turnout of 35.2%.

MOROCCO

THE 2011 MOROCCAN CONSTITUTIONAL REFERENDUM
A referendum on constitutional reforms was held in Morocco on 1st July, 2011. It was called in response to a series of protests that spread across Morocco which had begun on 20th February, 2011, when over ten thousand Moroccans took to the streets in massive demonstrations demanding democratic reforms. A Commission was set up to draft proposals by June, 2011. A draft was released on 17th June, 2011, which brought about fundamental changes upon people’s referendum.

EGYPT

EGYPT’S NEW CONSTITUTION AND REFERENDUM

In October, 2012, the Egyptian Constituent Assembly announced that its first draft of a new Constitution and launched a public awareness campaign called “Know your Constitution”, to educate the public. On November 29, 2012, the Egyptian Constituent Assembly of finalized the drafting process of a new Egyptian Constitution. One week later, on December 8, 2012, Egyptian President Mohamed Morsi issued a new constitutional declaration announcing that the constitutional draft would be voted on in a national referendum.

In accordance with article 60 of the Transitional Constitutional Declaration of March 2011, a special Judicial Commission was formed to supervise the referendum process and monitor vote counting. The referendum took place in two rounds on two different dates: December 15 and 22, 2012. The majority of Egyptians thus voted in favour of the newly drafted Constitution in a popular National Referendum, a Constitution that brought about profound reforms.

ERITREA

CONSTITUTION MAKING IN ERITREA
The Eritrea’s Proclamation 55/1994 established a Constitutional Commission which organized popular participation in the process of a new Constitution.
The Commission members and more than four hundred specially trained teachers instructed the public on constitutional issues and related political and social questions using local vernaculars. The process took three years to solicit the views of a broad cross section of Eritreans. The participation of a majority of Eritreans gave the people a “sense of ownership of the Constitution.”

TUNISIA

CONSTITUTION OF TUNISIA
Tunisia’s first modern Constitution was the fundamental pact of 1857. This was followed by the Constitution of 1861, which was replaced in 1956, after the departure of French administrators in 1956. It was adopted on 1st June, 1959 and amended in 1999 and 2002, after the Tunisian Constitutional Referendum of 2002. Following the revolution and months of protests, a Constituent Assembly drafted a new Constitution in 2014, adopted on 26th January, 2014 after a referendum.

THE AMERICAN EXAMPLE OF A PEOPLE’S CONSTITUTION
As a great contrast to the 1999 Nigerian experience, when America became independent from Britain in 1776, it held a Constitutional Convention under the leadership of George Washington, between May 14 and September 17, 1776, in Philadelphia, Pennsylvania. 55 delegates represented the autonomous Confederates, with a view to creating a “more perfect union”. Broad outlines of a new union were proposed and hotly debated. This was how the American people achieved a federal system of Government, separation of powers among three branches of Government (Legislative, Executive and Judicial); bicameral, legislature; an Executive presidency; and Judicial Review. The Constitutional draft was signed by 39 of the 55 delegates on September 17, 1787; and thereafter released to the States and the American people to debate and ratify. It was this people’s Constitution that threw up great founders, such as George Washington (first president); Alexander Hamilton, James Madison and John Jay (the Federalists), Thomas Jefferson, etc.

The 1999 Constitutions lacks these. It is not autochthonous or indigenous Being imposed, it worsened the unitary nature of government, and concentrated enormous powers at the centre. While the 1979 Constitution had 67 items on the exclusive legislative list, and 12 items on the concurrent list, the 1999 Constitution increase this to 68 on the exclusive list, but retained only 12 items on the concurrent list. This indicates an unacceptable unbearably strong centre and very weak federating units.

OUR CONCLUSION
The unity, development and peaceful co-existence of Nigeria as a country are currently imperial. Our diversities in area of culture language, tribe, and religion, must be seen by all as a Dolly Parton’s Coat of Many Colours, blessing and not a curse, because variety they say, is the spice of life. Concerted effort must be put in place by formulation of policies and reforms that would help promote national integration and peaceful co-existence. However, one of the strategies that must be pursued to ensure a far-reaching national integration and peaceful co-existence are to create a meeting point that would ensure and enhance integration between one ethnic nationality or tribe and another. One of the ways by which this noble idea can be
achieved is by putting up a strong advocacy and support for intertribal and interreligious marriage.

Philosophers, many say, have understood the world, but the problem is to change it. Albert Einsten’s dictum is apposite here: “we cannot solve our problems with the same thinking we used when we created them” Hippocrates the father of medicine once told us that desperate diseases requires desperate remedies. An economy based on oil and other depleting natural resources is fast becoming obsolete. The global economy is already in the 4th Industrial Revolution or digital age, dominated by Robotics, Artificial intelligence, Machine learning, Virtual reality, Augmented Reality and others. At the moment, Nigeria is largely bypassed and still grappling with the most basic aspects of the old economy. But given its geographic- demographic conundrum, Nigeria has to leapfrog the industrialization value chain or stagnate. Yet its institutions are those woven around the distribution and consumption of oil rents and the old economy. A system designed for consumption cannot be expected to become efficient for competition and production in the 21st century. Sadly, many people miss this point. As Professor Claude Ake once put it, Nigeria operates a disarticulate economy, where we produce what we don’t consume and consume what we don’t produce.

For a change since the military incursion into our body politics, let us sit down and craft a new Constitution that not only provides for a stable, equitable and just polity but even more so focuses on the incentive structure to usher a competitive and productive economy of the future.
Reforms at the meta-level would entail either embracing our discarded Prime Minister system of government or dismantling and re-coupling several of the institutions that help or hinder us, including a serious re-examination of the 36 state structure as federating units vis-à-vis their fiscal/economic viability or their consolidation into six or more regions with economies of scale and higher investment rates; multiple vice-presidency representing respective regions other than the region of the president, each with supervising powers over certain ministries to ensure equitable representation at the federal cabinet (the Central Bank has four Deputy Governors for instance); principle of equality of regions; multivariate judicial systems with state/regional appellate courts up to regional supreme courts while the federal supreme court becomes the constitutional court— and this is to decongest the centralized system and guarantee speedy dispensation of justice; introduction of commercial courts for speedy resolution of commercial disputes; institution of merit and equal opportunity principle; etc. This will carry the majority along.

Devolution of functions between the central and federating states/regions should be guided by the principle of subsidiary. According to the European Charter, subsidiary means that: “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of the responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.”

This principle is not observed in the 1999 Constitution. For a Constitution that proclaims a federal structure, the exclusive and concurrent lists constitute an atypical concentration of powers at the centre. Currently, the federal government is burdened with hundreds of parastatals and agencies trying to inefficiently micro manage the entire Nigeria, with the recurrent expenditure of the federal government exceeding total federal revenue. Every penny of capital spending by the Federal Government of Nigeria (FGN) is borrowed, and its fiscal position is precarious. Put starkly, not one kobo of oil money is invested in infrastructure by the FGN: it is all consumed by the obtuse federal bureaucracy. The federal government should loosen its hold on policing, electricity (power), railways, ports, aviation, business incorporation, taxation powers, regulatory functions, etc. This will generate the economy.

The greatest challenge is how to get some of the elite whose privileges are provided by the existing system to support its dismantling into a system that is potentially beneficial to ‘society’ but perhaps disproportionately harmful to their interests in the short term. In other words, we are faced with the same kind of conundrum as some western countries with their welfare system. Having designed and implemented it for generations, it has grown into an unsustainable octopus of inefficiency but reforming it is not easy. In the US, millions of voters are hooked to the feeding bottle and its government keeps postponing the day of reckoning by borrowing to keep the system alive (the US, with the global reserve currency can afford to borrow for a while from the rest of the world but Nigeria cannot). Everywhere, such a distributional system has acquired a huge and powerful constituency, and the political cost of dismantling and re-coupling is not trivial. There is also an intergenerational issue involved. The present beneficiaries don’t care if the same benefits do not extend to the future generations: they just want to have their share and go, and let the future generations take care of themselves. Nigeria cannot continue to share the national cake without caring how it is baked.

The end