The Photocopy of a Certified True Copy (CTC) of a Public Document does not Require Further Certification, and as such, is Admissible in Evidence as if it's a CTC: Magaji v. Nigerian Army Remains a Good and Valid Law and the Subsisting Precedent on the Issue.

By Reginald A. Uzoechi, Esq.

This is a rejoinder to an article written by a learned friend, D. Tella Attoni, Esq. and published on this link at thenigerialawyer.com on July 22, 2017. The article is titled: “Contrary To The Supreme Court Pronouncement In Magaji Vs. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338, Photostat Copies Of Certified True Copies Of Public Documents Are Inadmissible In Law.”

The title of that article is a summary of the submission of my learned friend and is said to be in line with the clear wordings of section 90 (1) (c) of the Evidence Act 2011.

While I commend my learned friend for a brilliant try to upturn a settled precedent and well-known principle of law and his erudite rendition on the subject matter, I rather do not find his arguments tenable and valid as to sustain his conclusion. More so, some of the authorities he cited were misapplied or do not qualify as a precedent in the circumstances of his submission.

My learned friend started his submission by postulating that:

‘...It should be noted that certified true copies of public documents are normally produced from the original public document and then certified by a public officer mandated by law to vouchsafe its authenticity, and issued upon the payment of statutory fees by an applicant. On the other hand, Photostat copies of certified true copies lack such quality/authenticity and are not vouchsafe by any public officer as having been produced from the said certified true copies they were purportedly produced from.’

The flaw in this postulation is that it failed to take cognisance of the fact that, the need for certification of a public document is to show that the said CTC is a true, actual and accurate copy of the original. See Gambari v. INEC & Ors. (2011) LPELR-9080 (CA). Once a document is certified, it satisfies the condition that it is an authenticated copy of the original, though a presumption which may be rebutted if the contrary is proved, see Kikiade & Ors. v. Alalade (2012) LPELR-7965 (CA). Thus, making further photocopies of the said CTC will not require further certification, because the very first certification shows that the document (photocopy) is an authentic copy of a public document and as good as the CTC in the eyes of the law. This is the principle expoused in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.

Interesting, my learned friend contended that Magaji v. Nigerian Army (supra) is no longer the law because, according to him:

‘...after the said pronouncement [the pronouncement in Magaji v. Nigerian Army (supra)], the  apex court has gone ahead to consistently and firmly hold that in respect of  public documents, the only form of secondary evidence admissible in law are certified true copies of such documents and no other.’

He cited the cases of Udom v. Umana (NO. 1) (2016) 12 NWLR (PT 1526) 179 at 235, paras. B & C; Abdullahi v. F.R.N (2016) 10 NWLR (Pt. 1521)475 at 499, Paras A-B to establish the principle that, ‘in the absence of the original document only such properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence.”’

First, the principle in the above cases is not in any way in conflict, contrary or contradictory to the principle in Magaji v. Nigeria Army (supra), that the photocopy of a CTC of a public document does not require further certification. They are rather complimentary, because Magaji v. Nigerian Army (supra) is simply an authority that a photocopy of a CTC of a public document requires no further certification, and it is admissible as the CTC itself.

Secondly, the issue in the above cases is not whether a Photocopy of a CTC of a public document is admissible or not; or whether the photocopy of the CTC of a public document requires further certification. The issue is rather, whether the photocopy of a public document (not the photocopy of the CTC of a public document) is admissible. The Supreme Court rightly held that it is only the CTC and original of a public document that is admissible.

My learned friend pushed his argument a bit further by contending that, ‘...being later in time, the foregoing  judicial cases must take precedent over the decision in Magaji v. Nigerian Army (supra) which appears to be in conflict with them.’ He cited the case of Dahiru v. Kamale (2005) 9 NWLR (Pt. 929) 8 at page 41, para. C, where the point was made that when a lower court is faced with two conflicting decisions of the Supreme Court, the lower court  will  be  bound by the latest.

There is however, a prelude to the above principle which my learned friend missed out. That is that, when a relevant prior decision is not cited before the court, or mentioned in the judgment of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and not binding on a later court. See Badau & Anor v INEC & Ors. (2008) LPELR-3841(CA) p.26, paras. A-B.; (2008) All FWLR (PT.435) 1794.

Neither Udom v. Umana (supra) nor Abdullahi v. F.R.N (supra) made reference to or overruled Magaji v. Nigerian Army (supra) on the issue at hand. The position is also maintained that Magaji v Nigerian Army (supra) is not in conflict with the two cases mentioned above.

And, assuming, without conceding, that the decision of the Supreme Court in Magaji v Nigerian Army (supra) is in conflict with Udom v. Umana (supra) and Abdullahi v. F.R.N. (supra) on the issue at hand, then the two latter cases were held per incuriam, since they neither called up nor overruled Magaji v. Nigerian Army (supra).

The next point contended by my learned friend is that, ‘the said pronouncement in MAGAJI VS NIGERIAN ARMY (supra) was an obiter dictum. Consequently, the same has no binding effect on our lower courts.’ He relied on the case of Daily Times (Nig.) PLC. v. D.S.V.  LTD. (2014) 5 NWLR (Pt.1400) 327 at page 353, paras. A-B, on the meaning of obiter dictum, which ‘is a remark made or an opinion expressed by a judge- “by way”- that is, incidentally or collaterally, and not directly upon the question before the court…’

My learned friend submitted that a ‘careful study of  the decision in MAGAJI VS NIGERIAN ARMY (supra), reveals that the issue of  admissibility of a Photostat copy of a certified true copy of a  public document was not  raised  by any of  the parties as an issue for determination.’ It was his further contention that, ‘NIKI TOBI, JSC, who delivered the leading judgment in that case, made no pronouncement or declaration regarding the admissibility of  Photostat copies  of  certified true copies of  public documents . The only pronouncement made in respect of the said issue was the pronouncement made by OGBUAGU, JSC in his supporting judgment in which he pronounced that a photo copy of a certified true copy of a public document is admissible.’

My learned friend capped up his submission by calling in aid the case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (2016) LPELR-40205 (CA), where the Court of Appeal held that, ‘the decision  in MAGAJI VS NIGERIAN ARMY (supra) regarding the admissibility of  photostat copy of certified true copy of a public document was not a binding  declaration of the law on the subject as it was an obiter dictum and therefore not binding.'

From every indications, it is clear that this case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) is actually the principal authority that inspired my learned friend's submission and the basis of the topic of his article.

With due respect to my learned friend, a pronouncement does not become an obiter dictum because the issue pronounced on was not ‘specifically raised for determination by any of the parties.’ Admittedly, ‘it is not everything stated in a decision that constitutes binding precedent. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as ‘obiter dicta’ which is not binding, though they may have persuasive efficacy. But where however, an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding.’ - Per Onnoghen, J.S.C. (now CJN) in Adedayo & Ors. v. PDP & Ors. (2013) LPELR-20342(SC); see also Clement v. Iwuanyanwu (1989) 3 NWLR (PT.107) 39.

Furthermore, the fact that a pronouncement was not specifically made in the lead judgment (but in the concurring Judgment) does not also make it an obiter dictum. At least, there is no known authority to that effect.

With these said, one is yet to come to terms as to how the Court of Appeal arrived at the conclusion (which conclusion by learned friend bought hook, line and sinker) that the pronouncement of the Supreme, per Ogbuagu JSC, in Magaji v. Nigerian Army (supra) concerning the admissibility of the photocopy of the CTC of a public document and that such document needs no further certification, is an obiter dictum.

A critical examination of the said pronouncement of the Supreme Court in Magaji v. Nigerian Army (supra) vis-à-vis the entire decision will help one determine its status as an obiter dictum or a ratio decidendi.

The said pronouncement was made by Ogbuagu, JSC while treating issue No. 4 raised for the determination of the appeal before the Supreme Court. The said issue 4 reads:

‘Whether the lower Court was right when it upheld the admissibility of the purported statement of the appellant which was alleged to have been obtained under duress and was rendered from the bar.’ (This issue was said to have been distilled from Grounds 8 & 9 of appeal).

In addressing the issue, Ogbuagu, JSC observed that:

‘The application to tender the said document was made pursuant to Rule 57 of the Rules of Procedure (Army) 1972, M/M, 1972 which reads as follows:

“...A written statement which is admissible in accordance with the provision of section 9 of the Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation 1967 shall be handed to the Court by the prosecutor or the accused as the case may be without being produced by a witness.”’

The learned law lord observed that the above provision has answered to the issue and went ahead to add that:

‘... However, I have already stated that if the purpose of calling as a witness is just to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the document such as the Investigator in the instant case. Exhibit 1 although a photocopy is/was certified. It is now settled that photocopies of documents, must be certified. See Section 111/112 of the Evidence Act. In the case of Daily Times Ltd. v. Williams (1986) 4 NWLR (Pt.36) 52 referred to by the court below as IHEONU v. FRA WILLIAMS, it was held that a photocopy of certified document, is admissible. So this authority also puts to rest, the complaint in the appellant's brief about the admissibility of the appellant's Statement or Exhibit 1. As a matter fact, in the case of International Bank Nig. Ltd. v. Dabiri & 2 Ors. (1998) 1 NWLR (Pt. 583) 284 @ 297, C.A, it was held that photocopies of a Certified True Copy needs no further certification under section 111 (1) of the Evidence Act [now section 104 (1) of the Evidence Act 2011.]’

How could such pronouncement be said to be an obiter dictum? The pronouncement of Ogbuagu, JSC, above is not an obiter dictum. It was a pronouncement made while resolving an issue raised for the determination of the appeal. It was a pronouncement made as part of the reasons for the decision in that appeal. It qualified as a binding precedent. See Adedayo & Ors. v. PDP & Ors. (supra).

Again, a critical review of the decision in Ministry of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe & Ors. (1969) ANLR 48 clearly discloses that there is no definite pronouncement that a photocopy of a CTC of a public document is inadmissible or that it requires further certification. The decision, in relation to the issue at hand, only pronounced "that in the case of public document the only type of secondary evidence permissible is a certified true copy and none other This is the same position the Supreme Court took in the two later decisions of Udom v. Umana (supra) and Abdullahi v. F.R.N (supra) cited by my learned friend; which decisions have been shown to be complimentary and not in conflict with Magaji v. Nigerian Army (supra).

The Court of Appeal made it clear in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) that, if not for it's observation that the pronouncement of Ogbuagu, JSC in Magaji v. Nigerian Army (supra) regarding the admissibility of a photocopy of a CTC of a public document, is an obiter dictum; it would have been bound by the said decision/pronouncement in Magaji v. Nigerian Army (supra).

With due respect to the learned law lords, that conclusion of the Court of Appeal that the said pronouncement of Ogbuagu JSC in Magaji v. Nigerian Army (supra) is an obiter dictum, is in itself a misadventure and reached per incuriam and cannot be binding. This is because that decision in Magaji v. Nigerian Army (supra), by all standards of judicial precedent, is binding on the Court of Appeal. But the Court of Appeal decided to dodge the binding effect of that decision by declaring the specific pronouncement in issue as an obiter dictum.

It is unfortunate to note at this juncture that of all the decisions reviewed by my learned friend in his article, it is only the Court of Appeal decisions that are actually conflicting with each other on the admissibility of the photocopy of a CTC of a public document.

It is not surprising because the Court of Appeal has been 'judicially notice' for handing conflicting decisions. One of such conflicting decisions is on the issue of whether appeal lies from the decision of the National Industrial Court of Nigeria to the Court of Appeal as of right or only on grounds of breach of fundamental right under chapter four of the 1999 Constitution of Nigeria. The conflict lingered until the Supreme Court settled the issue in a decision on a case stated, that appeal lies as of right to the Court of Appeal from the decision of the National Industrial Court of Nigeria. See Skye Bank Ltd. v. Iwu (2017) LPELR-42595 (SC).

Only recently again, the Court of Appeal held in GTB PLC v. Abiodun (2017) LPELR-42551 (CA), that ‘a written statement on oath that lacks the specific words of swearing cannot suffice in law and such statement on oath is invalid and cannot be relied on at the trial for its not compliance with the Oath Act.’ The Court of Appeal however, forgot that there is it's earlier decision where it drew a distinction between Affidavit and Written Statement on Oath and held that, ‘...where a statement on oath is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath in court before the judex prior to the maker and subsequent cross-examination.’ See Uduma v. Arunsi & Ors. (2010) LPELR-9133 (CA).

The list of conflicting decisions of the Court of Appeal is rather endless. It was for this reason that the immediate past Chief Justice of Nigeria, Mahmud Mohammed, CJN (Rtd), at the 2015 Annual Conference of the Court of Appeal noted that:

‘...We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.’

Let’s come back to the issue at hand. While the Court of Appeal in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) held that the decision in Magaji v. Nigerian (supra) regarding the admissibility of photocopy of a certified true copy of a public document is not a binding declaration of the law on the subject as it was an obiter dictum and therefore not binding; the same Court of Appeal in a latter case of Ifeanyi B. Esione v. Philip Isiofia (2016) LPELR-41060 (CA), held that:

‘…the argument as to the admissibility of a photocopy of a certified true copy of a document has now been settled by the Supreme Court. The apex Court in its wisdom has now established that photocopy of a certified true copy of a document is admissible with or without any need for re-certification. The above position was reiterated by the Apex Court, per Ogbuagu, JSC, in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338...’

The Court went ahead to quote the relevant dictum of Ogbuagu, JSC as has been replicated above.

As has been noted, the decision of the Court of Appeal in Ifeanyi B. Esione v. Philip Isiofia (supra) is later in time to the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra). Consequently, if my learned friend's submission, that a later-in-time decision takes precedence in a situation of conflict, is anything to go by, then the Court of Appeal's decision in Ifeanyi B. Esione v. Philip Isiofia (supra) overrides and supercedes the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra).

Flowing from the foregoing, and as far as judicial precedent is concerned, the case of Magaji v. Nigerian Army (supra) remains the authority that the photocopy of a CTC of a public document does not require further certification and is admissible as the CTC itself. Not until the Supreme Court overrules itself on that, it remains a good and valid law, and the subsisting precedent on that point and subject matter.

Reginald A. Uzoechi, Esq. is a Research Assistant at the National Industrial Court of Nigeria. He can be reached on reginalduzoechi@nigerianbar.ng.

This article is also available at thenigerialawyer.com via this link.

©All rights reserved. Permission to use any part of this article is granted subject to appropriate reference and credit to the author.

Saraki's Assets Declaration Trial: the Intrigues, the Law, Governance and the Politics.

It is no longer news that the Nigerian Senate President, Senator (Dr.) Abubakar Bukola Saraki is in the news over an assets declaration transgressions: conducts prohibited and "punishable" by the Code of Conduct for Public Officers as contained in the 5th Schedule to the 1999 Constitution of Nigeria. The facts of the case/his charges are already in the public domain, hence, I would not border dwelling on them. It is not also news that the matter is before the Code of Conduct Tribunal (CCT) and the charge for which the matter was brought before the Tribunal was preferred and signed by one M. Hassan of a Deputy Director at the Federal Ministry of Justice (MOJ).
Saraki had run to the Federal High Court (FHC) to obtain an experte order to bar the CCT from proceeding with his trial pending when the FHC must have determined whether, in the light of section 24 of the Code of Conduct Bureau and Tribunal Act, it was proper for a prosecution can be initiated by the Ministry of Justice in the absence of a substantive Attorney-General of the Federation (AGF)
The twist now is that the Federal High Court rather gave an order summoning the Ministry of Justice, the Code of Conduct Bureau and others to appear before it on Monday, September 21, 2015 to show cause why the trial of Saraki at the Code of Conduct Tribunal should not be stopped; while on the other side, the CCT has issued a Bench Warrant on Saraki for refusing to appear before it to answer to the charges against him. The said Bench Warrant ordered the Inspector General of Police, IGP and other security agencies to arrest and bring Saraki before the Tribunal on the same Monday.
It is to these expositions that I am compelled to look at the law sorrrounding these intriguing circumstances and how this Saraki's saga may affect the government.
First, the law.
The Constitution of Nigeria as the grundnorm touches on many important aspect of our national life. To this effect, the framers of our Constitution observing that those who occupy public offices are in a position of trust, for which a high degree of integrity, probity and accountability are required; deemed it necessary to ensure that certain safeguards are put in place to guarantee the sustenance of this public trust. Among other standards set by the Code of Conduct, a public officer must declare his/her assets within three (3) months of coming into office; after every four years and at the end of his/her tenure. Failure to declare such assets or any false declaration of assets is a breach of the Code of Conduct and such officer is liable to forfeit such public office; not hold public office for a period not exceeding 10 years. These exactly fit into the circumstances of Saraki's case.
To further give effect to the provisions of the Code of Conduct as contained in the Constitution, the National Assembly enacted the Code of Conduct Bureau and Tribunal Act (CCBT Act).
Now, some charges have been preferred against the Senate President alleging breach of the code of Conduct as per false declaration of assets when he was a former governor of Kwara State between 2003 to 2007. Instead of going to answer to the charges against him at the CCT, Saraki has approached the FHC to contended that the charges against him at CCT were preferred and filed in breach of the powers of the AGF as provided for under section 24 (2) of the CCBT Act; and that in the absence of an AGF, such charges cannot not be validly preferred.
For the purposes of clarity, it would be worthwhile to reproduce the provision of section 24 (2) CCBT Act as follows:
(2) Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by Attorney-General of the Federation or such officer of the Federal Ministry of Justice as the Attorney-General of the Federation may authorise so to do.
The general constitutional prosecutorial powers of the AGF is provided under section 174 of the 1999 Constitution of Nigeria and such powers by  section 174 (2) may be exercised by the Attorney-General in person or through an officer of his department.
By the authority of Ibrahim v the State (1986) 1 NWLR (Pt. 18) 650 the Attorney-General can expressly delegate his power of public prosecution.
However, with respect to powers of the Attorney-General to discontinue any criminal proceedings, as per section 174 (1) (c) of the Constitution, our various criminal procedure laws specifically provided for the manner in which it could be exercised. This is known as the powers of "nolle prosequi." Statutes like the defunct Criminal Procedure Act, CPA under section 73 (1) provided that such powers to discontinue criminal proceedings is to be exercised by the Attorney-General appearing in person or by a written authority to a law officer in his department. The Criminal Procedure Code has similar provision under section 253; hence in Attorney-General, Kaduna State v Hassan  the Supreme Court specifically held that the powers of the Attorney-General to enter nolle prosequi is personal to him and cannot be exercised by any other person, not even the Solicitor General, unless such power has been delegated to such person by the Attorney-General; and that such power cannot be delegated unless there is an incumbent Attorney-General. Same was also the decision in State v Chukwurah (1964) NMLR 64; while the case of Obasi v State (1998) 9 NWLR (Pt. 567) 686 was specific on this point and went further to point out that the said power of the Attorney-General to enter nolle prosequi is not delegable by implication.
The new Administration of Criminal Justice Act 2015 towed the same part under it's section 107 (1).
Some lawyers have mistaken the case of Attorney-General of the Federation v All Nigerian People's Party (ANPP) & 2 Ors. (2003) 18 NWLR (Pt. 851) 182 as being in conflict with those case which say that the power of nolle prosequi cannot be exercised in the absence an Attorney-General.
The ANPP's case deals the appeal against the decision of the Court of Appeal which affirmed the decision of the High Court of FCT, Abuja declaring Prince Abubakar Audu fit to contest the governorship election in Kogi State in 2003. The appeal was filed when the Federal Executive Council have been dissolved, so there was no Ministers including the AGF who is the Minister of Justice. The Supreme Court dismissed an objection that the appeal was incompetent in the absence of an Attorney-General. The court held that the office of the Attorney-General is a "corporate sole" and exists in perpetuity regardless of whether there is a sitting Attorney-General or not.
The ANPP's case has nothing to do with the mode of exercise of power of the Attorney-General to enter nolle prosequi which is specifically provided by statute.
The point here is that where power is donated by statute or the mode of exercise of certain powers has been specifically provided by statute, the provisions of such statute must be adhered to, else the exercise of such powers would be declared ultra vires.
Section 24 (2) of the Code of Conduct Bureau and Tribunal Act is on point. It say such prosecution shall be instituted by the AGF or such officers in the Federal Ministry of Justice as the AGF may authorise so to do.
Who is the Attorney-General that has authorized M. Hassan to institute the Charge against Saraki at the CCT? None! Could such authorization be done in the absence of an Attorney-General? The answer is in the negative.
What is more? The provision of section 24 (2) of CCBT Act should not be likened to the general prosecutorial powers of the Attorney-General under sections 174 & 211 of the Nigerian Constitution, which are said to be delegable expressly and impliedly. This is because, aside the fact that section 24 (2) is specific on mode  and whom to institute prosecution, the provision on the general prosecutorial powers of the Attorney-General under section 174 and 211 of the 1999 Constitution deal specifically which power as per instituting, taking over and discontinuing CRIMINAL PROCEEDINGS. Can the trial of Saraki at the CCT be said to be a criminal trial/proceeeings? NEVER!
The reason for this disagreement is that by paragraph 18 (3) of the Code of Conduct as contained in the 5th schedule to the 1999 Constitution and section 23 (3) of the Code of Conduct Bureau and Tribunal Act sanctions mentioned in (2) is without prejudice to the penalties that may be imposed by law where the conduct being tried also amounts to a criminal offence.
If trial at CCT is to be considered a CRIMINAL PROCEEDINGS, then the above provision would amount to double jeopardy.
Notwithstanding the use of the words "offence" and "punishment" in the Code of Conduct, it appears from the sanction imposeble by the CCT that these sanctions are rather disciplinary than punitive.
Talking about delegation of powers of the Attorney-General, I am not unmindful that  the Law Officers Act under its section 4 empowers the Solicitor-General to act in place of Attorney-General in the absence or vaccum in the office of the Attorney-General. That means that the Law Officers Act has delegated all Attorney-General's powers to the Solicitor-General, in the absence of an Attorney-General albiet.
The Charges against Saraki were preferred and signed by M. Hassan, a Deputy Director at the Federal Ministry of Justice. It was not by the Solicitor-General. Can it now be argued that pursuant to the Law Officers Act, the Solicitor-General of the Federation has appointed/delegated M. Hassan to prefer and sign the Charge sheet? That will be unacceptable, as I will need no authority to contend that a delegated power cannot be re-delegated. The Latin maxim is: "delegatus non potest delegare."
With the situation as hopeless as it appears, our dear Senate President has approached the FHC to seek redress. The jurisdiction of the FHC Court in the circumstance of this case is donated by section 251 (1) (r) of the 1999 Constitution of Nigeria, that is to say:
"Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies."
In the case at hand, Saraki is seeking declaration and injunction as to the validity and the legality of the executive decision of the Federal MOJ and the administrative decision/action of the CCB (Both agencies of the Federal Government) to charge Saraki before the CCT, especially as regards the powers to prefer and sign a charge which appear to be an administrative and executive function of the Federal Attorney-General.
Recall that it was argued by M. Hassan, Deputy Director, Federal Ministry of Justice, while urging the CCT to issue a Bench Warrant against Saraki, that it was wrong for the FHC to have ordered that Saraki's trial at the CCT be stayed, pending when the FHC must have disposed the substantive suit. He based his argument on the proposition that the FHC and the CCT are of concurrent jurisdiction and as such, the FHC cannot make an order staying proceeding at the CCT. Which argument the CCT unwholesomely bought. This misconception by M. Hassan and judicial miscarriage by the CCT is invariably predicated on the provisions of paragraph 18(4) & (5) of the Code of Conduct and section 23(4) & (5) of the CCBT Act which have it that appeal lies to the Court of Appeal from the decision of the CCT.
The true position of the law is that the FHC and the CCT do not have concurrent jurisdiction. The fact that appeal from both Courts lies to the Court of appeal does not make both courts of concurrent jurisdiction.
In Nigeria, we have two kinds of courts, the "superior" courts of records and the "inferior" courts. Section 6 of the 1999 Constitution is clear on courts that are superior courts of record. By section 6 (3), the Constitution made it so clear that the courts established under section 6 (5) (a) to (i) shall be the only superior courts of records in Nigeria. Section 6 (5) (c) went on to list the FHC as one of such seperior courts. But no mention was made of the CCT as a superior court, even though it's a creation of the Constitution. The implication of this is that the CCT as an inferior Court is subject to the powers of judicial review of the superior court, in this case, the FHC as encapsulated in section 6 (1) (2) & (6) (a) (b). Consequently, the FHC has powers to inquire and even issue declaration and injunction concerning the validity and the legality of the executive decision of the Federal MOJ and the administrative decision/action of the CCB (Both agencies of the Federal Government) to charge Saraki before the CCT, especially as regards the powers to prefer and sign a charge which appear to be an administrative and executive function of the Federal Attorney-General.
Yes, Saraki is under obligation to answer to the charges against him at CCT, it is still proper for him to challenge the powers to prefer and sign the charge against him in a forum he deems appropriate. Which in this case is the FHC. This cannot be termed "forum shopping." It is rather "forum convenient."
On the other hand, the MOJ and the CCB/CCT are also under obligation to appear before the FHC to show cause why the trial of Saraki at CCT should not be stopped.
Paradventure, as Saraki is still at the FHC and has appealed his order of arrest by the CCT, it turns out that the FHC rules that the the charges were invalidly preferred in the absence of an Attorney-General, that will mean that M. Hassan of MOJ would have to stay off the trial at CCT or appeal that decision. And if that is the case, the charges abate, until we get an Attorney-General, who may bring them all afresh. Saraki cannot remain at the CCT when the prosecutor has been disqualified by a superior court of records.
On the other hand, if M. Hassan gets a nod to proceed, Saraki would have to go and face the charges against him at CCT or he would have to appeal that decision. In both case, the appeal proceeds while the main charges is abandoned until the day the appeal is entirely disposed off, up till the Supreme Court. God knows when!
Even if the trial at CCT proceeds and Saraki is found guilty, that dude has the right of appeal to the court of appeal and supreme court, which may linger till this tenure elapses. And if he fails on appeal, by the time the tenure may have lapsed, he would simply retire; or the matter may wane off if the political essence of the trial has been overtaken by events.
On governance, the ultimate question is: what will stop a serious minded administration from appointing an Attorney-General about five month into its inception? This is nothing but sheer constitutional irresponsibility. The government should simply appoint an Attorney-Genearal and save us all these intrigues.
The situation become dicier when it is called in mind that same Saraki will be the one presiding over the Senate that would approve the appointment of Ministers whenever they are eventually made. Could the political insinuations be true that the Saraki's episode is aimed at delaying the appointments of Ministers? I am not troubled by that anyway. I am more concerned that this whole Saraki's trial would generate a great deal of friction between the Senate and the Executive.
Here is a government that has been on an endless "honeymoon" since its inception. And now the Senate  President would be distracted by attending proceedings at the Code of Conduct Tribunal. He has the support of the majority of the Senators, and these Senators would likely be attending proceedings with him to show their able President solidarity. Will that not negatively affect activities at the National Assembly? A National Assembly whose output have not be commensurate to the funds so far expended on it since its inauguration about five months ago.
I also wonder why the ruling party has chosen to preoccupy itself with self-opposition. First it was exposition by Lagos State government about Fashola's spendings while in office. Now it is Saraki. Could the ruling party be suffering from opposition hangover? To be an Opposition Ruling Party is simply novel in politics and governance.
Be that as it may, if this is their idea of fighting corruption, nice then! But why only Saraki? Could he be the only past Governor/public officer that may have breached the Code of Conduct? Why is he being singled out? It appears we are in for another interesting episode of the Nigerian Senate Presidency Game of Throne.
But the ultimate question is, at whose detriment?

Saraki's Assets Declaration Saga: the Law, Governance and the Politics.

It is no longer news that the Nigerian Senate President, Senator (Dr.) Abubakar Bukola Saraki is in the news over an assets declaration transgressions: conducts prohibited and "punishable" by the Code of Conduct for Public Officers as contained in the 5th Schedule to the 1999 Constitution of Nigeria. The facts of the case/his charges are already in the public domain, hence, I would not border dwelling on them. It is not also news that the matter is before the Code of Conduct Tribunal (CCT) and the charge for which the matter was brought before the Tribunal was preferred and signed by one M. Hassan of a Deputy Director at the Federal Ministry of Justice (MOJ).
Saraki had run to the Federal High Court (FHC) to obtain an experte order to bar the CCT from proceeding with his trial pending when the FHC must have determined whether, in the light of section 24 of the Code of Conduct Bureau and Tribunal Act, it was proper for a prosecution can be initiated by the Ministry of Justice in the absence of a substantive Attorney-General of the Federation (AGF)
The twist now is that the Federal High Court rather gave an order summoning the Ministry of Justice, the Code of Conduct Bureau and others to appear before it on Monday, September 21, 2015 to show cause why the trial of Saraki at the Code of Conduct Tribunal should not be stopped; while on the other side, the CCT has issued a Bench Warrant on Saraki for refusing to appear before it to answer to the charges against him. The said Bench Warrant ordered the Inspector General of Police, IGP and other security agencies to arrest and bring Saraki before the Tribunal on the same Monday.
It is to these expositions that I am compelled to look at the law sorrrounding these intriguing circumstances and how this Saraki's saga may affect the government.
First, the law.
The Constitution of Nigeria as the grundnorm touches on many important aspect of our national life. To this effect, the framers of our Constitution observing that those who occupy public offices are in a position of trust, for which a high degree of integrity, probity and accountability are required; deemed it necessary to ensure that certain safeguards are put in place to guarantee the sustenance of this public trust. Among other standards set by the Code of Conduct, a public officer must declare his/her assets within three (3) months of coming into office; after every four years and at the end of his/her tenure. Failure to declare such assets or any false declaration of assets is a breach of the Code of Conduct and such officer is liable to forfeit such public office; not hold public office for a period not exceeding 10 years. These exactly fit into the circumstances of Saraki's case.
To further give effect to the provisions of the Code of Conduct as contained in the Constitution, the National Assembly enacted the Code of Conduct Bureau and Tribunal Act (CCBT Act).
Now, some charges have been preferred against the Senate President alleging breach of the code of Conduct as per false declaration of assets when he was a former governor of Kwara State between 2003 to 2007. Instead of going to answer to the charges against him at the CCT, Saraki has approached the FHC to contended that the charges against him at CCT were preferred and filed in breach of the powers of the AGF as provided for under section 24 (2) of the CCBT Act; and that in the absence of an AGF, such charges cannot not be validly preferred.
For the purposes of clarity, it would be worthwhile to reproduce the provision of section 24 (2) CCBT Act as follows:
(2) Prosecutions for all offences referred to in this Act shall be instituted in the name of the Federal Republic of Nigeria by Attorney-General of the Federation or such officer of the Federal Ministry of Justice as the Attorney-General of the Federation may authorise so to do.
The general constitutional prosecutorial powers of the AGF is provided under section 174 of the 1999 Constitution of Nigeria and such powers by  section 174 (2) may be exercised by the Attorney-General in person or through an officer of his department.
By the authority of Ibrahim v the State (1986) 1 NWLR (Pt. 18) 650 the Attorney-General can expressly delegate his power of public prosecution.
However, with respect to powers of the Attorney-General to discontinue any criminal proceedings, as per section 174 (1) (c) of the Constitution, our various criminal procedure laws specifically provided for the manner in which it could be exercised. This is known as the powers of "nolle prosequi." Statutes like the defunct Criminal Procedure Act, CPA under section 73 (1) provided that such powers to discontinue criminal proceedings is to be exercised by the Attorney-General appearing in person or by a written authority to a law officer in his department. The Criminal Procedure Code has similar provision under section 253; hence in Attorney-General, Kaduna State v Hassan  the Supreme Court specifically held that the powers of the Attorney-General to enter nolle prosequi is personal to him and cannot be exercised by any other person, not even the Solicitor General, unless such power has been delegated to such person by the Attorney-General; and that such power cannot be delegated unless there is an incumbent Attorney-General. Same was also the decision in State v Chukwurah (1964) NMLR 64; while the case of Obasi v State (1998) 9 NWLR (Pt. 567) 686 was specific on this point and went further to point out that the said power of the Attorney-General to enter nolle prosequi is not delegable by implication.
The new Administration of Criminal Justice Act 2015 towed the same part under it's section 107 (1).
Some lawyers have mistaken the case of Attorney-General of the Federation v All Nigerian People's Party (ANPP) & 2 Ors. (2003) 18 NWLR (Pt. 851) 182 as being in conflict with those case which say that the power of nolle prosequi cannot be exercised in the absence an Attorney-General.
The ANPP's case deals the appeal against the decision of the Court of Appeal which affirmed the decision of the High Court of FCT, Abuja declaring Prince Abubakar Audu fit to contest the governorship election in Kogi State in 2003. The appeal was filed when the Federal Executive Council have been dissolved, so there was no Ministers including the AGF who is the Minister of Justice. The Supreme Court dismissed an objection that the appeal was incompetent in the absence of an Attorney-General. The court held that the office of the Attorney-General is a "corporate sole" and exists in perpetuity regardless of whether there is a sitting Attorney-General or not.
The ANPP's case has nothing to do with the mode of exercise of power of the Attorney-General to enter nolle prosequi which is specifically provided by statute.
The point here is that where power is donated by statute or the mode of exercise of certain powers has been specifically provided by statute, the provisions of such statute must be adhered to, else the exercise of such powers would be declared ultra vires.
Section 24 (2) of the Code of Conduct Bureau and Tribunal Act is on point. It say such prosecution shall be instituted by the AGF or such officers in the Federal Ministry of Justice as the AGF may authorise so to do.
Who is the Attorney-General that has authorized M. Hassan to institute the Charge against Saraki at the CCT? None! Could such authorization be done in the absence of an Attorney-General? The answer is in the negative.
What is more? The provision of section 24 (2) of CCBT Act should not be likened to the general prosecutorial powers of the Attorney-General under sections 174 & 211 of the Nigerian Constitution, which are said to be delegable expressly and impliedly. This is because, aside the fact that section 24 (2) is specific on mode  and whom to institute prosecution, the provision on the general prosecutorial powers of the Attorney-General under section 174 and 211 of the 1999 Constitution deal specifically which power as per instituting, taking over and discontinuing CRIMINAL PROCEEDINGS. Can the trial of Saraki at the CCT be said to be a criminal trial/proceeeings? NEVER!
The reason for this disagreement is that by paragraph 18 (3) of the Code of Conduct as contained in the 5th schedule to the 1999 Constitution and section 23 (3) of the Code of Conduct Bureau and Tribunal Act sanctions mentioned in (2) is without prejudice to the penalties that may be imposed by law where the conduct being tried also amounts to a criminal offence.
If trial at CCT is to be considered a CRIMINAL PROCEEDINGS, then the above provision would amount to double jeopardy.
Notwithstanding the use of the words "offence" and "punishment" in the Code of Conduct, it appears from the sanction imposeble by the CCT that these sanctions are rather disciplinary than punitive.
Talking about delegation of powers of the Attorney-General, I am not unmindful that  the Law Officers Act under its section 4 empowers the Solicitor-General to act in place of Attorney-General in the absence or vaccum in the office of the Attorney-General. That means that the Law Officers Act has delegated all Attorney-General's powers to the Solicitor-General, in the absence of an Attorney-General albiet.
The Charges against Saraki were preferred and signed by M. Hassan, a Deputy Director at the Federal Ministry of Justice. It was not by the Solicitor-General. Can it now be argued that pursuant to the Law Officers Act, the Solicitor-General of the Federation has appointed/delegated M. Hassan to prefer and sign the Charge sheet? That will be unacceptable, as I will need no authority to contend that a delegated power cannot be re-delegated. The Latin maxim is: "delegatus non potest delegare."
With the situation as hopeless as it appears, our dear Senate President has approached the FHC to seek redress. The jurisdiction of the FHC Court in the circumstance of this case is donated by section 251 (1) (r) of the 1999 Constitution of Nigeria, that is to say:
"Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies."
In the case at hand, Saraki is seeking declaration and injunction as to the validity and the legality of the executive decision of the Federal MOJ and the administrative decision/action of the CCB (Both agencies of the Federal Government) to charge Saraki before the CCT, especially as regards the powers to prefer and sign a charge which appear to be an administrative and executive function of the Federal Attorney-General.
Recall that it was argued by M. Hassan, Deputy Director, Federal Ministry of Justice, while urging the CCT to issue a Bench Warrant against Saraki, that it was wrong for the FHC to have ordered that Saraki's trial at the CCT be stayed, pending when the FHC must have disposed the substantive suit. He based his argument on the proposition that the FHC and the CCT are of concurrent jurisdiction and as such, the FHC cannot make an order staying proceeding at the CCT. This conclusion is invariably predicated on the provisions of paragraph 18(4) & (5) of the Code of Conduct and section 23(4) & (5) of the CCBT Act which have it that appeal lies to the Court of Appeal from the decision of the CCT.
The true position of the law is that FHC and CCT do not have concurrent jurisdiction. The fact that appeal from both Courts lie to the Court of appeal does not make both courts of concurrent jurisdiction.
In Nigeria, we have two kinds of courts, the "superior" courts of records and the "inferior" courts. Section 6 of the 1999 Constitution is clear on courts that are superior courts of record. By section 6 (3), the Constitution made it so clear that the courts established under section 6 (5) (a) to (i) shall be the only superior courts of records in Nigeria. Section 6 (5) (c) went on to list the FHC as one of such seperior courts. But no mention was made of the CCT as a superior court, even though it's a creation of the Constitution. The implication of this is that the CCT as an inferior Court is subject to the powers of judicial review of the superior court, in this case, the FHC as encapsulated in section 6 (1) (2) & (6) (a) (b). Consequently, the FHC has powers to inquire and even issue declaration and injunction concerning the validity and the legality of the executive decision of the Federal MOJ and the administrative decision/action of the CCB (Both agencies of the Federal Government) to charge Saraki before the CCT, especially as regards the powers to prefer and sign a charge which appear to be an administrative and executive function of the Federal Attorney-General;
Yes, Saraki is under obligation to answer to the charges against him at CCT, it is still proper for him to challenge the powers to prefer and sign the charge against him in a forum he deems appropriate. Which in this case is the FHC. This cannot be termed "forum shopping." It is rather "forum convenient."
On the other hand, the MOJ and the CCB/CCT are also under obligation to appear before the FHC to show cause why the trial of Saraki at CCT should not be stopped.
Paradventure, as Saraki is still at the FHC and has appealed his order of arrest by the CCT, it turns out that the FHC rules that the the charges were invalidly preferred in the absence of an Attorney-General, that will mean that M. Hassan of MOJ would have to stay off the trial at CCT or appeal that decision. And if that is the case, the charges abate, until we get an Attorney-General, who may bring them all afresh. Saraki cannot remain at the CCT when the prosecutor has been disqualified by a superior court of records.
On the other hand, if M. Hassan gets a nod to proceed, Saraki would have to go and face the charges against him at CCT or he would have to appeal that decision. In both case, the appeal proceeds while the main charges is abandoned until the day the appeal is entirely disposed off, up till the Supreme Court. God knows when!
Even if the trial at CCT proceeds and Saraki is found guilty, that dude has the right of appeal to the court of appeal and supreme court, which may linger till this tenure elapses. And if he fails on appeal, by the time the tenure may have lapsed, he would simply retire; or the matter may wane off if the political essence of the trial has been overtaken by events.
On governance, the ultimate question is: what will stop a serious minded administration from appointing an Attorney-General about five month into its inception? This is nothing but sheer constitutional irresponsibility. The government should simply appoint an Attorney-Genearal and save us all these intrigues.
The situation becomes dicier when it is called in mind that same Saraki will be the one presiding over the Senate that would approve the appointment of Ministers whenever they are eventually made. Could the political insinuations be true that the Saraki's episode is aimed at delaying the appointments of Ministers? I am not troubled by that anyway. I am more concerned that this whole Saraki's trial would generate a great deal of friction between the Senate and the Executive.
Here is a government that has been on an endless "honeymoon" since its inception. And now the Senate  President would be distracted by attending proceedings at the Code of Conduct Tribunal. He has the support of the majority of the Senators, and these Senators would likely be attending proceedings with him to show their able President solidarity. Will that not negatively affect activities at the National Assembly? A National Assembly whose output have not be commensurate to the funds so far expended on it since its inauguration about five months ago.
I also wonder why the ruling party has chosen to preoccupy itself with self-opposition. First it was exposition by Lagos State government about Fashola's spendings while in office. Now it is Saraki. Could the ruling party be suffering from opposition hangover? To be an Opposition Ruling Party is simply novel in politics and governance.
Be that as it may, if this is their idea of fighting corruption, nice then! But why only Saraki? Could he be the only past Governor/public officer that may have breached the Code of Conduct? Why is he being singled out? It appears we are in for another interesting episode of the Nigerian Senate Presidency Game of Throne.
But the ultimate question is, at whose detriment?

Stare Decisis: Conflict of Precedents.

I woke up this morning greeted by a message from a learned friend of mine whom I always share ideas and thoughts with. The message read thus:

"Reading Old Cases is interesting but the danger in doing them is that most of the touted Locus Classicus, the old cases poignant on interesting areas of law have been modified by new authorities. Most new case laws have modified the principles in the old case laws. The thing that surprises me is that in most of these new cases where there are radical departure from the old cases the old cases are not referred to and there is no express decision that it has been overruled or set aside. Thus the principle in the old case of the court e.g. Supreme Court exist with the new case of the Supreme Court. I now ask in the light of these scenario and you want to cite the SC authority which prevails; the old one or the new one?Are there cases that has settled this issue? What are your views? Good morning.
Ifeanyi Agwuncha."

Below is my response, which I humbly thought would be worth sharing, to stimulate thoughts and responses from legal minds alike:

Agwuncha Esq., I must say I envy your ingenuity in dusting up issues that are very important aspect of law and our practice but may otherwise be given little attention.

My response to your exposition and question this morning is on the theme: Stare Decisis

It is stated in full as 'stare decisis et non quita movere' otherwise tagged 'Judicial Precedent'. The meaning and import is to abide by former precedent where same points come up again in litigation. It presupposes that the law has been solemnly declared and determined in a previous case. It does not however preclude judges of subordinate court from changing what has been determined. Per Adekeye, J.S.C. in Dingyadi & Anor v INEC & Ors. (2011) LPELR-950 (SC)

It is however not everything stated in the decision that constitutes stare decisis. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as 'obiter dicta' which is not binding, though they may have persuasive efficacy. But where however, an obita dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding. Per Onnoghen, J.S.C. in Adedayo & Ors. v PDP & Ors. (2013) LPELR-20342(SC) ; see also Clement v Iwuanyanwu (1989) 3 NWLR (PT.107) 39

Stare decisis does not only mean an inferior court being bound by the decisions of a superior court, it also means a superior court following its previous decision when the facts and circumstances are similar.
It was Nnaemeka Agu, J.S.C. who noted that 'this court [Supreme Court] respects precedent, even though it is not a court bound by precedent. It is essential for the certainty of the law that it should generally follow its previous decisions.

The Superior courts are only allowed to DEPART (note depart for emphasis) from their previous decision when the interest of justice will not be served. As Nnaemeka Agu, J.S.C. further stated that,  the Supreme Court as a court of ultimate resort, will not be held hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. See Asanya v The State (1991) 3 NWLR (PT180) 422; (1991) LPELR-574 (SC) pp.18-19, paras. G-B.

The late sage, Oputa, J.S.C. in Eperokun v UNILAG  (1986) NWLR (PT. 34) 162 noted that, "the question as to whether the Supreme Court should reconsider a previous decision... is a question of judicial policy rather than a question of law. It involves a balancing of the need for certainty in the law with the need for the judges to see that they faithfully apply the law as it is and not the law as they would like it to be or as it was wrongly conceived to be in a previous case. The first need compels the judges to be very slow in reversing or altering previous pronouncements as to what the law is. The second need compels them to correct their previous pronouncement if satisfied that those pronouncements were wrong. The balancing of these two fundamental objectives is of far greater importance in the court of last resort."

Tobi, J.S.C.  put paid the issue when in Veepee Ind. Ltd v Cocoa Ind. Ltd (2008) NWLR (PT.1105) 486, he magisterially proclaimed thus: "The position of the law is that ordinarily this court [Supreme Court of course] adheres to the principle of stare decisis. It will therefore hold itself bound by its previous decisions. But where it is satisfied that any previous decision is errornous or was reached per in curiam and will amount to injustice to perpetuate error by following such decision, it will overrule it or depart from it. This power of the Supreme court is predicated on the fact that it is better to admit an error than persevere in error."

This implies that a superior court departing from or not following its previous decision must be a deliberate act, which must call into question the said previous decision. Thus, when a relevant prior decision is not cited before the court, or mentioned in the judgement of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per in curiam and not binding on a later court. See Badau & Anor v INEC & Ors. (2008) LPELR-3841(CA) p.26, paras. A-B.; (2008) All FWLR (PT.435) 1794.

This becomes pertinent in view of the fact that it is trite that, where an inferior court is faced with two conflicting decisions of the superior court on an issue, it is bound to follow the latest. See Osakue v Federal College of Education, Asaba (2010) 10 NWLR (PT. 1201) 1.

Therefore, a previous decision reached per in curiam cannot be binding, so also, a latter decision reached without overruling a previous decision on the same issue cannot be preferred in a situation of conflict between the two. Because it must be assumed that the court acted in ignorance or forgetfulness of such previous decision, and if the new decision is in conflict with the old decision, it is given per in curiam and not binding on a later court. See Badau & Anor v INEC & Ors., supra.

Regards,
Reggie A. Uzoechi.

On Tambuwal: May the Rule of Law Prevail.

I blame our courts that have abdicated their responsibilities through judicial laziness & 'delay syndrome.' I blame the lawyers who engage in all sort of delay tactics to frustrate justice. I blame a society where everything (including the Rule of Law) has been politicised. The impact is more felt when the lay ones become interpreters of our constitution, while the "learned ones" engage in 'game theory' of interpretation.

Rt. Hon. Aminu Tambuwal, the Speaker of Federal House of Representative, Abuja, Nigeria is no doubt a shrewd politician. Recall that he contested and won the speakership position against the wish and aspiration of his then political party, PDP. Apparently, the opposition legislators gave him the winning vote. His anti-PDP propensities are as old as the present House.

Tambuwal is not the speaker of the PDP caucus, he is that of the entire House. Smart enough, he timed his defection at a time when the PDP must have lost the numerical strength to oust him from his primus inter pares position.
And a recess was declared. It was never reported that the Speaker imposed the recess in the House. It was a recess OKed & approved by the entire House. It is not on record that any member of the House objected to or opposed the recess. They all welcomed it because it will afford them the chance to go run errand for the forthcoming election... And so there was recess.

Tambuwal acted like our 'men of god' who know what the congregation wants to hear and that they say to the congregation.
Now the PDP saw the recess as a ploy to shortchange them and all that could happen is for the power that be to strip the Speaker of his security details. Citing s. 68 (1) (g). They said the speaker has lost his seat having defected to another political party. The police claim they have a duty to uphold the constitution. Pity!

Who has the duty to give effect to s.68 (1) (g) of the Constitution of Nigeria 1999 (as amended)?
That is the question the "game theorists" and the lay interpreters of our Supreme Constitution have deliberately refused to avert their minds to.
By that same s.68, subsection (2) precisely, the Senate President or the Speaker of the House is empowered to give effect to the provision of s. 68 (1) after a satisfactory evidence is first presented to the House concerning that any of the provisions of the subsection has become applicable in respect of that member.

On the other hand, s. 6 (6) (a) & (b) give the courts inherent powers which the constitution says extends to all matters between persons, or between government and authorities 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 obligation of that person....

If the PDP caucus feel the need for the House to reconvene, the House Rules enables that. They can compel the Deputy Speaker to write the Speaker to reconvene the House; the Speaker failing, they get a signature of 1/3 members of the House (which they have and can get) to reconvene the House. And if the Speaker absents himself, the Deputy Speaker can preside. It could even be an opportunity for the Deputy Speaker to declare the Speaker's seat vacant, if not that matter relating to the issue as to whether a member who defects to another political party loses his seat, is before the court and noting the House Rules which say that the House shall not take decisions on any matter before that court until the court finally decides. This was the position the Senate President, Sen. David Mark in his characteristic maturity took when he was called upon to declare the seats of defected Senators vacant.

Alternatively, the PDP would have to be patient to wait for the Court decision on the matter, since it's already before the court... Let the court decide whether Tambuwal and other members lose their seat or not by defecting.

On a political note and as an aside, after all, the PDP have been aware of Tambuwal's anti-party activities and they condoned it. He has been attending APC meetings and scarcely attended PDP's. Why haven't they sanctioned him? Amaechi and his co-travelers that were suspended from the PDP didn't even engage in more anti-party activities than Tambuwal did. Yet PDP afforded him the chance to maneuver.

The swift politician has approached the court to seek redress which he would sure get as the courts are wont to ask parties to maintain status quo till final determination of the matters before the court. (Which is likely to last beyond February, 2014, by which time Tambuwal may have won the Sokoto guber election.)
The same way they almost mishandled Sanusi Lamido Sanusi.

There have been series of defections and counter-defections. I am not unaware that some members of other political parties have defected to PDP as well. Has anyone declared their seats vacant?
What trash then is the police talking about defending the constitution?

And to the PDP, lets hope the court rules that a member who defects loses his seat, until then, the addition and subtraction will be done and then the majority and minority will be determined.

Until then let it be borne in mind that Nigeria is not practicing a Parliamentary System of Government where the political party with the highest number of seats in the Legislative House forms the government.

LET'S ALLOW THE RULE OF LAW TO THRIVE IN OUR DEAR COUNTRY NIGERIA.

Reginald A. Uzoechi.
November 1, 2014.