Obi, Tanko and fate of law, history
Justice Muhammad’s confirmation as the substantive CJN came exactly 12 years the eminent jurist sat on appeal a special constitutional matter bothering on the conduct of governorship election in Anambra State.
The matter with suit No SC.123/2007, which was determined on July 13, 2007, by a panel of seven justices including, Aloysius Iyorgyer Katsina-Alu, George Adesola Oguntade, Madmud Mohammed, Francis Fedode Tabai, Ibrahim Tanko Muhammad, Pius Olyiwola Aderemi and Christopher Mitchel Chukwuma-Eneh, involved Mr. Peter Obi.
Peter Obi, as the then governor of Anambra State had taken the Independent National Electoral Commission (INEC) and seven other respondents including, the All Nigeria Peoples Party (ANPP), Prince Nicholas Ukachukwu, Peoples Democratic Party (PDP), Dr. Andy Uba, Peoples Mandate Party (PMP), Arthur Obiefuna Nwandu and Ifeanyichukwu Okonkwo.
INEC had conducted governorship election in Anambra State despite the fact that Obi, who was sworn into office on February 2006, was yet to serve out his full four years term in office.
Piqued by INEC’s decision to include the governorship among other elective positions in the 2007 general election, Obi approached the court seeking interpretation as to his term in office as governor.
The Federal High Court declined jurisdiction, the Court of Appeal upheld that decision and Obi approached the Supreme Court, where Justice Aloysius Katsina-Alu delivered the lead judgment on June 14, 2007.
Justice Katsina-Alu had ruled thus: “This is an appeal against the judgment of the Court below given on 22nd May 2007. The Court below had affirmed the judgment of the Federal High Court, which declined jurisdiction in the matter on the ground that only the Election Tribunal could entertain the same.
“ I have read the proceedings of the two courts below and adverted my mindfully to the nature of the appellant’s case. I have also given consideration to the arguments of counsel in their written brief and their oral argument.
“It is my firm view that what the plaintiff/appellant had sought by his claim was the true interpretation of section 180(2)(a) of the 1999 Constitution. The Court under the 1999 Constitution and in particular section 251(l)(q) and (r) has the jurisdiction to interpret any provision of the Constitution or the law. It is, therefore, my view that the court below was wrong to hold that this was an election matter under section 285 of the 1999 Constitution. I, therefore, allow the appeal on jurisdiction.
“In the interest of justice and having regard to the fact that the relevant facts in this matter arc not in dispute, I ought to proceed to exercise the power vested in this Court under section 22 of the Supreme Court Act. Let me reiterate that the only relevant fact is the date when the plaintiff/appellant took his oath of allegiance and oath of office, which is 17th March 2006. Happily, the said provision is very clear and explicit and all I need do is to apply it. The provision reads:
“180(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of a period of four years commencing from the date when –(a) in the case of a person first elected as governor under this Constitution, he took the oath of allegiance and oath of office.”
The apex court justice noted that “there being no dispute on the fact that the plaintiff/appellant took his oath of allegiance and oath of office on 17th March 2006 his term of office will expire on 17th March 2010.”
Consequently the court held that the office of the Governor of Anambra State was not vacant as at May 29, 2007 and as such “it is ordered that the 5th Respondent Dr. Andy Uba should vacate the office of the Governor of Anambra State with immediate effect to enable the plaintiff/appellant, Mr. Peter Obi, to exhaust his term of office.”
After the ruling, the Supreme Court fixed July 13, 2007, to give reasons for its judgment even as Dr. Uba, who had been in office for 17 days vacated office immediately the court ruled in Obi’s favour.
Relapse of history
Today Peter Obi, who was appellant in the matter adjudicated by Justice Ibrahim Tanko Muhammad and others, not only turns 58 years of age but is also a party in the Presidential Election Petition Tribunal filed by Alhaji Atiku Abubakar and PDP.
While attending the senate session that preceded his confirmation as CJN, Justice Muhammad had enjoined the lawmakers to rise to the occasion and put things right by amending the necessary laws.
The CJN discovered that “several of our laws are dependent on a technicality,” explaining that Judges resort to rules of interpretation to resolve “problem that is technically raised. ”
In the 2007 apex court ruling, which he concurred, the court had said, “the duty of a judex is to expound the law and not to expand it,” stressing that “law-making”, in the strict sense of that term, is not the function of the judiciary but that of the legislature.
There was no explicit thread to connect Senator Enyinnaya Abaribe’s poser to the CJN with the Presidential election petition filed by PDP, Atiku/Obi, however the fact that the case comes at such a time when the judiciary is under the watch of Justice Muhammad, Nigerians may be forced to look back at judicial precedents to see how far the country’s jurisprudence would fare.
It would be recalled that in the reasons for judgment of the apex court delivered by Justice Pius Olayiwola Aderemi on July 13, 2007, Muhammad agreed with the position of his colleagues thus: “Let there be no incursion by one arm of government into that of the other. That will be an invidious trespass.
“No constitution fashioned out by the people, through their elected representatives for themselves, is ever perfect in the sense that it provides a clear-cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time.
“As society grows or develops, so, also must its constitution, written or unwritten. Our problems as judges should not and must not be to consider what social or political problems of today require; that is to confuse the task of a judge with that of a legislator.
“More often than not, the law, as passed by the legislators, may have produced a result or results, which do not accord with the wishes of the people or do not meet the requirements of today.
“Let that defective law be put right by new legislation, but we must not expect the judex, in addition to all his other problems to decide what the law ought to be. In my humble view, he (judex) is far better employed if he puts himself to the much simpler task of deciding what the law ‘IS’.”
It is possible that the CJN’s call on the lawmakers to amend appropriate laws echoes the sentiments expressed in that landmark ruling of Obi vs INEC and 7 ors in 2007.
As Peter Obi has added 12 years to his 46 years of age when the Supreme Court rescued him from the shadow of impunity and electoral mischief, there is hope that the nation’s judiciary has matured to reflect the rise of Justice Muhammad to the exalted position of CJN.
There must be a reason why the paths of the two eminent citizens, Obi the litigant, and Muhammad, the jurist, should cross at this point in time of Nigeria’s socio-political progression. Let the law rule.