PUC February2008_edition 3 by tyndale


									                FEBRUARY 2008

                                                                                       PUC Journal
                                                                                                                                       FEBRUARY 2008

                                D I S T I N G U I S H E D P U C A LU M N U S

                                 Bassey B
                                                                                       The Amaechi Judgment

                                                                                                                  n 25 October 2007, the Supreme Court heard the Appeals in the case of
                                                                                                                  Amaechi V Independent National Electoral Commission & 2 others and
                                                                                                                  summarily gave its judgment (the “Amaechi Judgment”) allowing the Appeal
                                                                                                                  while reserving its reasons for 18 January 2008. The judgment of the Court
                                                                                                                  replaced Celestine Omehia with Rotimi Amaechi as the Governor of Rivers
                                                                                       State of Nigeria. The reasoning of the Court is multifaceted and does not lend itself to a

                                 B                                                     comprehensive review in a single issue of PUC Journal. Given the topicality of the issues in the
                                          assey B Anwanane attended the
                                          University of Calabar, Cross River State
                                          of Nigeria, where he obtained his law        judgment, particularly as it relates to Nigeria's democratic practices, we would devote the next
                                 degree in 1987. He then proceeded to the              two editions of PUC Journal to reporting on and addressing two of these issues.
                                 Nigerian Law School, Victoria Island, Lagos and
                                 was subsequently called to the Nigerian Bar in
                                 1988.                                                 Political Party Decisions                                          Amaechi's case therefore sought to determine whether
                                      He undertook the compulsory National             The primary aim of the Amaechi Judgment seemed to be the           “error” was a “cogent and verifiable reason” in the context of
                                 Youth Service Programme at Ikorodu Local              enthronement of judicial checks in the conduct of the affairs      the Electoral Act. For completeness, it needs to be
                                 Government Council of Lagos State, where he           of political parties. The facts of the case emphasise the need     mentioned that on the same 02 February 2007, PDP had in a
                                 served as Counsel. He subsequently joined Paul                                                                           similar letter to INEC replaced Ifeanyi Ararume (who had, like
                                                                                       for such judicial interventions. As Oguntade JSC summarised
                                 Usoro & Co and in 1989 opened up the Uyo                                                                                 Amaechi, contested, won and was declared as the winner of
                                                                                       it in the Court's lead judgment, “Amaechi, as a member of
                                 office of the Firm as pioneer Counsel before he
                                                                                       PDP (Peoples Democratic Party), in his quest to be the             the PDP Governorship primaries for Imo State, Nigeria) with
                                 moved to join PUC's Lagos office. Between 1989
                                                                                       Governorship candidate of the party, in the April 2007             Charles Ugwu on the same ground of “error”. Ararume, like
                                 and 1999 he rose to the position of Partner &
                                 Head of the Advocacy Practice Section of the          elections in Rivers State, contested the party primaries against   Amaechi, had proceeded to the Courts (“Ararume's Case”)
                                 Firm. His main areas of practice included             seven other members of the PDP They competed for a total
                                                                                                                     .                                    and the Supreme Court, in a judgment that preceded the
                                 Banking and Finance, Litigation and Arbitration.      of 6,575 votes. Amaechi had 6,527 votes to emerge the              Amaechi Case, held that “error” did not constitute “cogent
                                      In 1999, Mr Anwanane was headhunted for          winner. Omehia was not one of the candidates at the PDP            and verifiable reason” pursuant to Section 34 of the Electoral
                                 public office, serving as Special Assistant to the                                                                       Act. The Supreme Court therefore had no difficulty in the
                                                                                       primaries. The PDP submitted Amaechi's name to INEC
                                 Governor of Akwa Ibom State. While in that                                                                               Amaechi Case in similarly pronouncing the PDP “error” as
                                                                                       (Independent National Electoral Commission) as its
                                 Office he served as a key member of the State
                                                                                       Governorship candidate. No court of law subsequently made          not being “cogent and verifiable reason” for the replacement
                                 Government's investment team and frequently
                                                                                       an order disqualifying Amaechi from contesting the                 of Amaechi with Omehia in the context of Section 34 of the
                                 participated in the State's negotiation team on
                                 various economic projects and arrangements.           Governorship elections”.                                           Electoral Act.
                                 Apart from his professional calling, he also serves      PDP however in a letter dated 02 February 2007 to INEC              This decision must be situated in the context of intra-
                                 on the Board of Ibom Power Company Limited,           replaced Amaechi's name with Omehia for the Governorship           party disputes which the Supreme Court had in its previous
                                 the nation's premier independent electric power       elections and claimed that Amaechi's name was sent to INEC         decision in Onuoha V Okafor (1983) SCNLR 244
                                 producer. Mr Anwanane has recently                                                                                       pronounced as domestic affairs of the parties and beyond
                                                                                       in “error”. Meanwhile, Section 34 of the Electoral Act 2006
                                 completed his tour of public duty and has                                                                                adjudication by the Courts. Ararume and Amaechi Cases
                                                                                       (the “Electoral Act”) requires that a political party may only
                                 returned to private practice.
                                                                                       change its candidate for any election by giving “cogent and        were departures from this earlier decision. Oguntade JSC
                                                                                       verifiable reasons” therefor in a formal letter to INEC.           explained it thus in the Ararume Case:
    It is in the context of these facts and issues that the Supreme Court situated its decision in the
   Amaechi Case. The Court hinged its decision on the need to do substantial justice without the
   encumbrances of technicalities particularly where the opposing parties were adjudged to have
 connived at and contrived to create a seeming situation of hopelessness and fait accompli in respect
                                      of the Court's ultimate judgment
    “. . . My humble view on the decision in Onuoha V               there was also the overriding need for the Courts to ensure           Electoral Act . . . for the substitution of one candidate         make the statement that Court judgments are not to be made
Okafor is that the same has ceased to be a useful guiding           that political parties abide by the laws of the land including         with another'”.                                                  hollow and ineffectual through the connivance and contrivance
light in view of the present state of our political life. I have    the Electoral Act. The provision for “cogent and verifiable       iii. “On 05 April 2007 when this Court gave its judgment in           of opposing parties. Oguntade JSC put all of these in
no doubt that the reasoning in the case might have been             reasons”, the Court pointed out, was a recent legislative             the Ararume Case, the elections were still nine days away.”       perspective thus:
useful at the time the decision was made. It seems to me,           amendment which was directly aimed at checking the                iv. “The PDP on 10 April 2007 published a notice                               “In relation to Ararume, the message sent to the
however, that in view of the contemporary occurrences in            arbitrariness of the political parties in picking and replacing       expelling both Ararume and Amaechi from the party in                   general public translated into saying that the PDP was not
the political scene, the decision needs to be reviewed or           candidates for elective offices, contrary to their                    reaction to the judgment given by this Court on 05                     bound to obey the judgment of the court. The PDP by
somewhat modified. If the political parties, in their own           Constitutions. The Courts indeed have the constitutional             April 2007.”                                                            publicly announcing that it had no candidate for Imo State
wisdom had written it into their Constitutions that their           responsibility of interpreting and enforcing all statutory        v. “Omehia and PDP on 11 April 2007, three days to the                     Governorship election, clearly destroyed the efficacy of
candidates for election would emerge from their party               provisions and this, by itself, brings the political parties          election, brought an application that Amaechi's appeal                 the judgment in favour of Ararume given by this Court in
primaries, it becomes unacceptable that the court should            under the judicial microscope of the Courts without any               be struck out following his expulsion from the party.”                 order to destroy his chances at the election. In relation to
run away from the duty to enforce compliance with the               regard for “domestic” decisions or issues.                        vi. “On 16 April 2007, two days after the Governorship                     the Amaechi's case, the message to the public was that
provisions of the parties' Constitution. The court did not              As a postscript and to illustrate the political rascality          election, the Court below struck out Amaechi's appeal”.               whatever judgment the court gave was irrelevant. Worse
draft the Constitutions for these political parties. Indeed,        which the Court's decisions in the Ararume and Amaechi            vii. “On 11 May 2007, this Court in its judgment on                        still, the PDP went before the court below to ask that the
the court, in its ordinary duties, must enforce compliance          Cases sought to address, soon after the Supreme Court's               Amaechi's appeal against the order of the Court below                  appeal in Amaechi's case be struck out on the ground that
with the agreements reached by parties in their contracts.          decision in Ararume's Case, PDP expelled both Ararume                 which struck out his appeal ordered that the said                      with his expulsion, the court had lost the jurisdiction to
Even if the decision in Onuoha V Okafor might have been             and Amaechi from the party and announced that it was not               appeal be heard expeditiously”.                                       hear the case. Let me say for the avoidance of doubt that
acceptable at the time it was made, the contemporary                fielding any governorship candidate in Imo State. The             viii.“On 21 May 2007, Omehia brought an application that                   the expulsion of Amaechi from the PDP at the time when
bitterness and acrimony now evident in this country's               PDP's decisions in this regard were indisputably aimed at             the hearing of Amaechi's appeal be stayed until this                   his appeal was pending before the court below was
electoral process dictate that the decision be no longer            defeating the Supreme Court's decision thereby placing                Court made further clarification of its judgment given                 unlawful and amounts to a calculated attempt to
followed. An observer of the Nigerian political scene today         itself beyond judicial supervision.                                   on 11 May 2007.”                                                       undermine judicial authority . . .
easily discovers that the failure of the parties to ensure                                                                            ix. “On 25 May 2007, four days to the swearing-in of                          “These occurrences needlessly brought the
intra-party democracy and live by the provisions of their                                                                                 Omehia as Governor of Rivers State, the court below                    administration of justice to disrepute and I am greatly
                                                                    Subversion of Court Judgments
Constitutions as to emergence of candidates for elections is                                                                              made an order staying proceedings in the appeal of                     alarmed by these developments. The result of this
                                                                    It is in the context of these facts and issues that the
one of the major causes of the serious problems hindering                                                                                 Amaechi before it and granted Omehia seven days to                     calculated and improper behaviour was that the
                                                                    Supreme Court situated its decision in the Amaechi Case.
the enthronement of a representative government in the                                                                                    bring before this Court an application for the                         respondents ensured that the elections for the
                                                                    The Court hinged its decision on the need to do substantial
country. If a political party was not to be bound by the                                                                                  clarification of the judgment given by this Court on 11                Governorship office in Rivers State were held and
                                                                    justice without the encumbrances of technicalities
provisions of its Constitution concerning party primaries,                                                                               May 2007.”                                                              Omehia sworn in as Governor before Amaechi's appeal
                                                                    particularly where the opposing parties were adjudged to
why would there be the need to send members of the                                                                                    x. “On 10 July 2007, this Court reaffirmed the order it had                was heard. Before us in this appeal, the respondents
                                                                    have connived at and contrived to create a seeming
parties aspiring to be candidates for an electoral offices (sic)                                                                          previously made on 11 May 2007 that the appeal by                      who had improperly prevented the expeditious hearing
                                                                    situation of hopelessness and fait accompli in respect of the
on a wild goose chase upon which they dissipate their                                                                                     Amaechi and the cross-appeals by PDP and Omehia be                     of the appeal argued that this court has no jurisdiction
                                                                    Court's ultimate judgment. Oguntade JSC chronicled
resources and waste time? Would it not have made better                                                                                   heard on the merit.”                                                   on the ground that elections had been held and further
                                                                    succinctly the sequence of events that led to and justified
sense in that event for the political parties to just set out the                                                                     xi. “On 16 July 2007, the court below finally heard                        that because Omehia has been sworn in as Governor of
                                                                    the Court's final judgment thus:
criteria for the emergence of their candidates for electoral                                                                              Amaechi's appeal” and decided against Amaechi,                         Rivers State, he now enjoys immunity from civil suits. In
                                                                    i. “The Court below (i.e. Court of Appeal) had on 04 April
offices and then reserve to themselves (i.e. the parties) the                                                                             leading to the appeal before the Supreme Court.                        other words they relied on their own wrong doing to
                                                                        2007 “stated that in the consideration of Amaechi's
ultimate power to decide who should contest and who                                                                                                                                                              oust the jurisdiction of this court”.
                                                                        appeal it would be bound by the judgment of this
                                                                                                                                         Clearly and in the judgment of the Supreme Court, both
should not?”                                                            Court in the Ararume appeal”.
   This reasoning of the Supreme Court is, in our                                                                                     PDP and Omehia had conspired to frustrate the early                       These reasoning of the Supreme Court should interest all
                                                                    ii. “This Court (i.e. the Supreme Court) on 05 April 2007
respectful view, most sterling. In fact, as Oguntade JSC                                                                              determination of the Amaechi Case in the expectation of               lovers of democracy in Nigeria and, in particular, the
                                                                        affirmed the judgment of the Court of Appeal” in the
pointed out, independent of this global objective of the                                                                              nullifying the ultimate judgment of the Courts, if it turned out to   managers of Nigeria's electoral reforms.
                                                                        Ararume Case, 'to the effect that the reason 'error' did
Courts to ensure that the political parties do not act                                                                                be in Amaechi's favour. It was this sequence of events that the
                                                                        not satisfy the requirements of Section 34(2) of the
arbitrarily and without regard even to their Constitutions,                                                                           Supreme Court set out to reverse and, in the process, boldly

To top