By Emmanuel Onwubiko
Democracy is indeed beautiful. Beautiful is edifying because everyone has a say but the right thing is always done.
But Constitutional democracy is even more beautiful given the fundamentals that make it work in such a vibrant fashion that Justice, fairness and equity are not only done but seen to have been done.
Additionally, the constitution of Nigeria which makes us a Constitutional democracy spell out in lucid format how and what each tiers of government should do as its very essence.
Beginning from section 4, 5 and 6 the Nigerian Constitution clearly tells us the mandates of each of the three arms of government viz the legislature, the executive and the judiciary.
The Judiciary is clothed with the judicial powers of the federation in section 6 thus:” The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.
(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.
(3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.
(4) Nothing in the foregoing provisions of this section shall be construed as precluding:-
(a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;
(b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being.
(5) This section relates to:-
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental
Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”.
The functionality and smooth workings of the nation’s judiciary are also systematically organized so every citizen of Nigeria could enjoy the full benefits of the due process of the law including the vital element which is the right of appeal in the way that if a citizens feels aggrieved about the decision of each of the member of the collective court System, such a citizen is constitutionally protected to exhaust what is termed legally as the right of appeal through the court of appeal up until the supreme court of Nigeria.
We are actually discussing the matter involving the governor of Ebonyi State Mr. Dave Umahi who together with his deputy and about 16 members of the Ebonyi State legislature are contesting a judgment of the Federal High Court, Abuja division which sacked them from their political positions for cross carpeting from the Peoples Democratic Party to the All Progressives Congress. What the governor has set out to do is to test the viability of the constitutional concept of due process.
We then asked, what Is Due Process in which case an expert Michael Boyle says: Due process is a requirement that legal matters be resolved according to established rules and principles, and that individuals be treated fairly. Due process applies to both civil and criminal matters.
In countries with developed legal systems, individuals expect that the rights enshrined in their constitutions will be applied to them fairly. This expectation of due process outlines the relationship individuals expect to have with their local, state, and federal governments—specifically, that the rights of the individual will not be violated.
KEY TAKEAWAYS of the concept of due process: Due process requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly.
The origin of due process is often attributed to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons.
In the U.S. due process is outlined in both the Fifth and Fourteenth Amendments.
The Sixth Amendment adds due process protections to criminal defendants.
One example of due process is the use of eminent domain.
Understanding Due Process
The origin of due process is often traced back to the Magna Carta, a 13th-century document that outlined the relationship between the English monarchy, the Church, and feudal barons. The document referred to as a charter (carta means charter in medieval Latin), sought to address many economic and political grievances that barons had with the monarchy.
In one of its clauses, the king promised: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”1
The king was thus prevented from arbitrarily changing or ignoring laws, with the Magna Carta establishing the rule of law that the monarchy must follow.
Due process continued to be a part of British law for centuries after the signing of the Magna Carta, but the relationship between parliament and the courts limited its application in practice. The courts did not have the power of judicial review, which would have allowed them to determine whether government actions violated the rule of law, and thus could not always enforce due process. Judges could not be as assertive in defending due process in the face of parliamentary action, with the opposite holding true in the United States.
Types of Due Process according to the expert and he reminds us that in the United States, due process is outlined in both the Fifth and 14th amendments to the Constitution. Each amendment contains a due process clause, which prohibits the government from taking any action that would deprive a person of “life, liberty, or property without due process of law.” The due process clause provides several types of protection.2
Procedural Due Process according to him Procedural due process requires that when the federal government acts in a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker.2
What is Substantive Due Process? Substantive due process is a principle allowing courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the U.S. Constitution. Courts have taken an assertive approach to upholding due process, which has resulted in the executive and legislative branches of government adjusting how laws and statutes are written. Laws that are explicitly written not to violate due process are those that are least likely to be struck down by the courts.
Due process in the U.S. also protects individuals from vaguely written laws and incorporates the Bill of Rights. (https://www.judiciary.uk/)
Now let’s read a little literature review of the concept of the right to appeal then we situate it within the context of the constitutionally protected right of governor Dave Umahi to exhaust his RIGHT OF APPEAL.
The experts say that the most obvious way in which individual judges are accountable is through the right of the party to the proceedings to appeal any judicial decision, in some cases through several higher courts. In this way the losing party is able to have the decision reviewed by another independent judge or judges. The court determining an appeal will correct errors by the trial judge and the right of appeal ensures that, as far as possible, courts arrive at correct decisions. The decisions of appellate courts are fully reasoned, widely available and they do not always pull their punches.
Only a small number of the millions of cases commenced each year are subject to a successful appeal. For example, 1,553,983 civil (non-family) cases started in 2011, whilst just 1,269 appeals were filed in the Court of Appeal Civil Division in the same period. It is vital the right exists as it ensures that if a judge does make an error of law or fact the means exist to correct it. In this sense the right of appeal as a form of explanatory accountability has two distinct (but overlapping) functions, one private and one public. These were first noted by the Roman legal scholar Justinian.
The private function is to provide accountability to the individual litigants. The public function is that enabling errors to be corrected maintains and enhances the confidence of citizens in the justice system. Another aspect of the public function is that the appeal court can provide guidance for future cases and thus facilitate certainty. In these ways the right of appeal furthers the rule of law.
Examples of the many contexts in which there may be a right of appeal are:
• In criminal cases there may be an appeal against conviction or sentence by the defendant, and a reference to the Court of Appeal by the Attorney General against a sentence that is considered to be unduly lenient in more serious cases.
• In family cases, an appeal against a judge’s decision to place a child in care, to grant custody of a child to one parent rather than the other, or to determine how the matrimonial assets should be divided on divorce;
• In civil cases the examples include; appeals against a judge’s determination of a contractual dispute (for example between consumer and supplier, builder and house-owner, or two businesses), a boundary dispute between neighbours, or a claim for compensation for personal injuries sustained in an accident or because of negligence by a doctor;
• Against decisions of judges ruling on challenges by citizens to the decisions of public authorities; for examples challenges to decisions of NHS Trusts as to the availability of medicines, and decisions of planning authorities granting or refusing permission to build or extend houses, roads or motorways;
• Procedural decisions made by judges in all parts of the justice system, such as whether to allow or disallow certain evidence to be put before the court, whether or not to require disclosure of certain evidence, or whether or not to grant an adjournment are also subject to appeal.
In 2012 just 62 individuals had their sentence increased after having their cases referred to the Court of Appeal by the Attorney General as ‘unduly lenient’ – a small fraction of the 138,808 cases dealt with by the Crown Court that year. There is also a proportionately small number of appeals against conviction or sentences. It is important to remember that these references and appeals represent only a small minority of those cases which are decided in the course of a year, and that they are not representative of the vast majority of appeals by those who have been convicted of a criminal offence where the sentencing decision of the court is upheld. This is despite the very strong criticism which is levelled at judges on the grounds that sentences are insufficiently severe.
It is tempting to try to analyse the performance of individual judges by looking at the number of appeals against them and then drawing the conclusion that those judges who are often successfully appealed are in some way less than competent. Such a conclusion cannot properly be drawn. The number of successful appeals against an individual judge’s decisions is not necessarily indicative of competence. Figures on successful appeals against a judge’s decisions can only begin to have relevance if they are set against the total number of decisions made by the judge in question, and those where there has been no appeal, or an appeal has been rejected. It should also be borne in mind that some judges have caseloads involving more complex and serious cases, so they might be more likely to feature in appeal cases. In any event, there are many cases where the Court of Appeal will overturn decisions without implying any criticism of the original judge, for example, where the lower court was required to follow an earlier decision of the Court of Appeal which is subsequently found to be incorrect.( ).
This right of appeal is what governor of Ebonyi State, David Umahi, and his deputy, Dr. Eric Igwe, have approached the Abuja Division of the Court of Appeal to set aside the judgement that sacked them from their respective offices over defection from the Peoples Democratic Party, PDP, to the ruling All Progressives Congress, APC.
This came as the Nigerian Bar Association, NBA, yesterday lashed out at the governor over his outburst against the judge that gave the judgment, Justice Inyang Ekwo, describing it as “executive rascality.”
It would be recalled that Umahi had, in the aftermath of the judgement on Tuesday, accused the judge of doing a “hatchet job” in his ruling.
This is even as Ebonyi State government, yesterday, described the verdict against the governor and his deputy as an attempt to heat up the polity in the state.
Governor Umahi and his deputy, through their team of lawyers, led by a Senior Advocate of Nigeria, SAN, Chukwuma Ume, in their eight grounds of appeal, maintained that Justice Inyang Ekwo of the Federal High Court in Abuja, erred in law in his judgement and caused a grave miscarriage of justice against them.
They argued that the trial court, in ordering them to vacate their offices, based on the suit, marked FHC/ABJ/CS/920/2021, attempted to overrule a subsisting decision of the Supreme Court in AG Federation v. Atiku Abubakar & 3 ORS (2007) LCN/3799 (SC).
They contended that the apex court had in its decision, held that no constitutional provision prohibited a sitting president or vice president, and invariably, governor or deputy governor, from defecting to another political party.
They maintained that the trial high court judge erred, when he held thus: “I have not seen any authority which propounds that where a governor or deputy governor defects his political party on which platform he was elected into office, he cannot be sued by that political party to reclaim its mandate… Section 308 of the 1999 Constitution did not envisage such a situation.”
They argued that the trial court ought to have dismissed the case of Peoples Democratic Party, PDP, in view of the clear provision of Section 308 of the 1999 Constitution (as amended).
“The provisions of Section 308 are specific, notwithstanding anything to the contrary in this constitution, but subject to subsection (2) of this section, no civil or criminal proceedings shall be instituted or continued against 3rd and 4th Appellants during their mandate in office as Governor and Deputy Governor respectively.
“There is no provision of the 1999 Constitution (as amended) that provides for the removal of 3rd and 4th appellants as sitting governor and deputy governor respectively of Ebonyi State for reason of defection.”
NBA slams Umahi, describes response to court order as executive rascality
Reacting to the governor’s outburst against the trial judge, yesterday, the Nigerian Bar Association, NBA, called on him to immediately render an apology for his attack on Justice Inyang Ekwo, describing the outburst as executive rascality.
NBA President, Mr. Olumide Akpata, while reacting in a statement, said: “The NBA has noted with utter dismay, the unfortunate and totally unacceptable reaction of Dave Umahi to the judgement of the Federal High Court, Abuja, delivered on March 8, 2022, by Justice Inyang Ekwo, which, inter-alia, ordered him and Mr. Eric Igwe to vacate the offices of governor and deputy governor, respectively, of Ebonyi State on grounds of their defection from Peoples Democratic Party, PDP, to the All Progressives Congress, APC.
The statement read: “Following the judgment, Umahi, in the course of a press conference —video evidence of which is currently making the rounds on both new and mainstream media — threw caution to the wind and deployed very uncomplimentary adjectives and intemperate language in characterising both the judgement and Justice Ekwo, including but not limited to describing the judgment as ‘jungle justice’ and His Lordship as ‘a hatchet man.’
“As if these were not enough, Umahi accused the court of ‘murdering justice’ and also arrogated to himself the judicial powers and magisterial authority to declare the judgement of a court of competent jurisdiction as null and void, while unashamedly declaring his intention to disregard the judgement in favour of another.
“To put it plainly, this is impunity of the highest order and executive rascality taken too far. While the NBA has absolutely no interest in the outcome of the case in question and will continue to stay away from partisan politics, it is inconceivable that this association that is charged with upholding the rule of law and defending the judiciary would sit idly by in the face of this unprovoked and totally unwarranted attack on the judiciary.
‘’It is for this reason that we condemn without equivocation, Umahi’s unfortunate diatribe which, if it had emanated from an average litigant, would still have been regarded as shocking but coming from one who occupies the exalted office of a state governor, is nothing short of a national embarrassment.
“In light of the foregoing, the NBA, hereby, demands an immediate apology from Umahi and a retraction of the comments he made against the person and Judgment of Justice Ekwo of the Federal High Court.
“It is also our demand that this apology and retraction be given as much media coverage as the press conference where the unfortunate comments were made.”
SANs divided over Umahi’s sack by high court
Meanwhile, some Senior Advocates of Nigeria, SANs, remained divided, yesterday, over the sacking of the governor and his deputy by the court.
While some of them hailed the decision of Justice Inyang Ekwo, others maintained that the high court lacked the powers to order the governor and his deputy to vacate their respective offices.
In his reaction, Olisa Agbakoba, SAN, said: “Based on the Supreme Court decision in Amaechi vs Celestine Omehia and PDP, the candidate who wins political office holds the office in trust for the party.
“The party is the only legally permissible entity under the constitution and the Electoral Act, who canvasses for votes. As a result, the political office to which a candidate runs, say for president or Senate etc, is to the benefit of the party exclusively.”
Prof. Epiphany Azinge, SAN, in his reaction, said: “There are many dimensions to the issue. First is, can an action be brought against a sitting governor regardless of the provision of Section 308 of the Constitution on immunity?
“The court answered in the affirmative and I respectfully agree. Second is, whether earlier decisions of the Supreme Court on the subject of defections as it affected the legislature can by parity of reasoning be stretched to the executive?
“Again, the court answered in the affirmative. I am not sufficiently persuaded. First is that the constitution is silent in that regard. But can the judiciary not engage in judicial lawmaking to fill the gap when there is obvious lacunae?
Adding his voice to the debate, Dayo Akinlaja, SAN, said: “The reality on ground is that the court that gave this judgment is a court of first instance.
“There is as such a window of opportunity for an aggrieved party to appeal against the judgement. Having regards to the all important nature of the matter, it is certain that there will be an appeal.
“My own attitude is that the Court of Appeal should be allowed to decide the matter in a way and manner considered proper by that appellate court.”
While disagreeing with the judgement, Jubrin Okutepa, SAN, said: “This judgment, on the superficial level, seems very attractive and well intentioned to instill political sanity in our otherwise reckless political terrains.
“But beyond this and also scoring political debates, is there jurisdiction in the Federal High Court to make the orders it made, in the light of, and upon a dispassionate construction and interpretation of Nigerian Constitution 1999 (as amended)? I do not think so.”
“There is no power and jurisdiction in the Federal High Court to determine and declare that by constitutional misconduct of defecting to another political party other that the party upon which the governor and the deputy governor were elected, their seats had become vacant and to order the conduct of election to their offices.”
Similarly, Chief Mike Ozekhome, SAN, said: “I am of the firm belief that the judgement, shredded of all legal and factual details, cannot stand the acid test of constitutionalism, nor pass the furnace of appellate courts scrutiny. This is because the tenure of office of a governor and his deputy are constitutional matters.
“Perhaps, the jurist’s learned attention was not drawn to appellate decisions on this type of matter, which under the doctrine of stare decisis and judicial precedent, he ought to have followed meticulously.
“I humbly submit that a governor already sworn in cannot be removed by the Federal High Court through an originating summons. It will surely be set aside on appeal. Mark my words.”
A universal fact which is not I contention is the constitutionally protected right of appeal of the Ebonyi state governor and his deputy.
*EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and was federal commissioner of the NATIONAL HUMAN RIGHTS COMMISSION OF NIGERIA.