30th June, 2014
On 26 May 2014, the Supreme Court in Abuja awarded N8 million as cost against Dr. Dickson Osuala, lawyer to Chief Great Ogboru who contested the Delta State governorship election on the platform of the Democratic Peoples Party, DPP, against Governor Emmanel Uduaghan of the Peoples Democrtic Party in 2007. The apex court accused Osuala of abuse of court process.
The court ordered that Uduaghan, PDP, the Independent National Electoral Commission, INEC, and Attorney-General of the Federation, AGF, were to share the money at N2 million each. “The said N8 million is awarded as cost against the person of Dr. Dickson Osuala and is to be paid from his pocket to the respondents,” the apex court declared.
Trouble started when Ogboru’s counsel applied for a review of the court’s judgment which, in 2013, upheld Uduaghan’s victory. Osuala told the court that Section 285 (7) of the 1999 Constitution which the Supreme Court used to knock out his client’s case was “fraudulently inserted by the National Assembly”. The section has to do with the number of days all electoral matters have to be disposed of before a winner of an election is sworn in.
Osuala’s logic was that the National Assembly did not follow due process in amending the section. Therefore, he argued, if the process that brought out the section is faulty, tany judgment based on it would be wonky. Justice Walter Onoghen, in his ruling, said Osuala “wants to resurrect a dead and buried horse…and should advise his client to take his case to heaven if he is not satisfied with the court’s ruling.” Amendment of the constitution is, according to Onoghen, the business of the National Assembly, not the court.
However, Osuala still insists that he is right, based on what he calls in-depth study of the proceedings of both Houses of the National Assembly leading to the enactment of First And Second Alterations Act, 2010, giving rise to the insertion of Section 285(7) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In other words, he is of the opinion that the section did not comply with Section 9 of the Constitution, particularly Section 9(3) which provides for approval of the votes of “four-fifths” majority of all the members of each House.
Osuala, therefore, argued that the 85 senators that voted on the amendment represented less than four-fifths of the Senate’s 109 membership.
In his words: “Mathematically, four-fifths of 109 is 87.2. Realistically, four-fifths of 109 will be 87 as it is impossible to have a fraction of human being! The Senate vote certainly does not comply with the provisions of Section 9(3) of the Constitution of the Federal Republic of Nigeria, 1999.”
With regards to the House of Representatives’ vote and proceedings of 3 June, 2010, he said, item seven reveals that 255 members attended, 250 members voted, two members voted against the proposal while three members abstained.
He argued further: “Four-fifths of 360 members is 288. The votes cast for the alteration of the constitution giving rise to the insertion of Section 285(7) is not up to four-fifths of 360 and fails to comply with Section 93 of the Constitution of the Federal Republic of Nigeria, 1999. That is, on the votes of the First Alteration Act, 2010.”
To further buttress his point, the lawyer presented to the court: The Federal Republic of Nigeria Official Gazette No. 2 Volume 98 of 11 January 2011, covering the 1st Alteration Act, 2010; Federal Republic of Nigeria Official Gazette No. 3 Volume 98 of the 12 January, 2011, covering the 2nd Alteration Act, 2010; Senate voting and proceedings on 2 June 2010; House of Representatives’ voting and proceedings on 3 June 2010; as well as the Senate and House of Representatives voting and proceedings dated 3 Noveber 2010 and 4 November 2010 respectively.
Osuala therefore wants the nation to know that he is not wrong, based on Section 1(3) of the constittion which says: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and other laws shall to the extent of the inconsistency be void.”
He further argues that the Supreme Court should not push the matter to the Natonal Assembly. Thus, he refers to Section 4(8) of the Constitution, which states: “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of Law and of Judicial Tribunals established by law and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a Judicial Tribunal established by law.”
Osuala visited TheNEWS office to field questions on his problems with the Supreme Court, the N8 million fine and the implications of the development to the country’s electoral process and the judiciary.
At what point did you take over the Ogboru case?
Let me do a little preamble to that. I met the Ogborus when some of their Lordships asked them to see me. What was the position? Ogboru had been declared wanted and as a matter of fact, his bedroom was broken into from the roof; luckily, he was not there on the day in question. By the time they came to me, he was afraid for his life. The order declaring him wanted was there; why? Because of the Abraka mayhem, where three people were said to have died. So he and some of his supporters who worked for his election were charged for the so-called murder and mayhem. The other boys, while he was in hiding, had been taken to Abuja; they were in custody for eight months before I came into the matter. When I looked at the issue leading to him being declared wanted, I went to court and issued the prerogative writ of statuarai, to produce that order declaring him wanted to court for the purpose of it being quashed, and a prohibition preventing the Federal Government, the police and their servants and agencies from ever touching him. That was upheld by the Federal High Court. That was why he was able to contest election in 2011.
I was not part of the appeals, but I came into the matter when the counsel they briefed, a colleague, Sebastian Ohun, SAN, withdrew the application to have the court review their decision and allow them to have their appeal heard on the merit, but the appeals were struck out because of the alteration, the inserted portion of the 1999 Constitution (amended) that introduced Section 285(7) to the 1999 Constitution. When Ohun did this, they protested; they said before he could withdraw, they called him and asked him not to withdraw; nonetheless, he went ahead and withdrew it.
So they complained to the Chief Justice of Nigeria and the Chairman of the National Judicial Council about what happened; that the counsel who withdrew their matter did not have their mandate to do so. And when a matter is struck out, if it an application and it is struck out, you can file another application. There is a law even from the Supreme Court in support of this. If it is a suit that is struck out, and not heard on the merit, you can bring an application to have it relisted.
So, I then advised them, having complained to the CJN, that they should file the matter which Ohun withdrew with the Supreme Court.
I gave you the ruling to show that the reasons for going to court this last time is different from what was being considered before. Now, when they did this ruling, the office of the Chief Justice of Nigeria and the Chairman of the National Judicial Council wrote a letter to the Chairman of DPP, Tony Ezeakwu, saying because of this new law – Section 285(7) – nothing could be done.
I said okay. I went out to look at the origin of this enactment and a new insertion into the constitution and I found out after a deep study, which I believe anybody who would use that law would do before taking a position one way or the other. That is exactly what I did; and I did this in keeping to the oath that was administered to me the day I became a lawyer.
The meat and marrow of the oath administered to lawyers when they are called to bar, is defending liberty and pursuing justice. So that is what emboldened me to go out and research the origin of this law. In doing this, I looked at the Gazette of the Federal Republic of Nigeria No. 2 Volume 198, which deals with the first alteration Act – Section 29(7), of the first alteration Act – and I also looked at the Gazette of the Federal Republic of Nigeria No. 3 Volume 98, which deals with the second alteration Act and I found that, contrary to the express provision of Section 9 of the Constitution, which shows how an amendment to the constitution would be done, that the National Assembly fell foul of that law.
They didn’t comply with Section 99(3) of the Constitution of the Federal Republic of Nigeria. What did I do? I have it exhibited in the affidavit of Tony Ezeakwu in support of the application. I exhibited this as well as the proceedings of the National Assembly, when they were enacting the first and second alteration Act. Section (9) says mode of altering the provision of the constitution. Looking at Section 3, (9)(3) says an act of the National Assembly for the purpose of altering the provision of this section, section A or Chapter 4 of this constitution, shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than 4/5 majority of all the members of each House and also approve the resolution of the Houses of Assembly of not less than 2/3 majority of all the states. These were not followed.
Looking at the first alteration Act, Federal Republic of Nigeria official gazette No. 2 and 3, Constitution of Federal Republic of Nigeria, 2010, the reason for this is because one does not even need to be a lawyer; it is a matter of logic and common sense. Senate of the Federal Republic of Nigeria vote and proceedings of Wednesday, June 2, 2010, questions posed and agreed to: Yes – 85; No – 0; Abstention – 0; Total – 85. Section 9(3) states that it is 4/5 of the Senate membership that can do anything about the alteration of Section 8 of Chapter 4 of the constitution. Looking at National Assembly Legislature, Section 48 says, the Senate shall consist of 3 Senators from each of the 36 states and 1 from the Federal Capital Territor; 3 multiplied by 36, plus 1 from the Federal Capital, is 109; 4/5 of 109 is 87.2.
Since you cannot have a fraction of a human being, at least it would be 88, but we can see 85 alone voted for the approval. That is contrary to Section 9(3). I did not read where we got the approvals of 2/3 of the Houses of State Assemblies. Section 49 says: “Subject to the provision of the constitution, the Acts of the House Representatives shall consist of 360 members, representing constituencies of nearly equal population as far as possible, provided that no constituency shall fall within more than one state.”
Gentlemen, 4/5 of 360 is 288, but checking through the House of Representatives, Federal Republic of Nigeria, votes and proceedings of June 3, 2010, 255 attended; 250 voted for; 2 voted No, and 3 abstained. This is the certified true copy gotten from the National Assembly.
This would be the job of anybody taking decision in respect of this matter but because a lawyer by virtue of our training and the oath that was administered to us, our allegiance is first to the administration of justice to the court before your client; the client is secondary. And that is why it was necessary to take this trouble. Will only 250 approve the proposal, when 4/5 of 360 is 288 not 250? Have they complied with Section 9(3)? The obvious answer is no. I am giving reason for agreeing to go back to the Supreme Court with Great Ogboru and DPP, which is that their appeal has not been heard on the merit.
I have taken this strenuous step to show you that the consolidated appeal of the Appellant was struck out as a result of Section 285(7) which was inserted by Section 29(7) of the first alteration Act, 2010 which, as I have shown to you, were enacted not with the appropriate quorum that was provided for by the constitution.
That is why I went to the Supreme Court, filed a motion asking them for an order of the honourable court, relisting the consolidated appeal and SC/18A/2012, for rehearing and determination. Why? Because the law which the Supreme Court used in striking them out does not exist. An invalid legislation cannot create a right or a disability it deemed not to have existed. And in doing this, we gave the decisions of the Supreme Court, decisions of Commonwealth and Common Law countries, including American Supreme Court and all that, to show that an invalid law cannot create a right or disability. And that Section 285(7) does not really exist and cannot be part and parcel of the 1999 Constitution and cannot be the basis of striking out the appeal. They now said we can go to the lower court, if you want we can appeal to God. That was what I was told.
The reason for their anger is that, I allowed my client to go to TheNEWS Magazine and trash them. I said I did not even read the said magazine. I asked, “My Lord, Honourable Justice of the Supreme Court, Mohammed Tanko, do you have a copy of the magazine? He said he did not have a copy there. Can the publication made by the Appellant before I became their lawyer be a reason to sanction me? Where have I gone wrong?
Is it in trying to show that the law the apex court used in striking out an appeal and preventing these people from being heard contrary to their fundament rights, provided for and protected by the Constitution in Section 36(1)? As we are talking, the appeal has still not been heard. Why would this happen? It is the duty of anybody who loves justice to see to it that when a party goes to court, that he is allowed to ventilate his grievance.
Section 36(1) says that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
This is a right that is protected by entrenchment. The court has notheard the merit and they are entitled to be heard. What can anybody say about this? The constitution takes precedence over any law of any court, including the Supreme Court of Nigeria, because the rules follow the law… Look at what the constitution says in sections 1(1) and 1(3). This constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria, including the Supreme Court of Nigeria.
Subsection 3 says: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
Who is fooling who? Who is committing abuse of process? Will the way I have been treated with my client prevent me from defending liberty and pursuing justice? I say, never.
You went to the Supreme Court to ask the court to follow due process, but it imposed N8 million fine on you for not following the due process “in coming before us to ask us to follow the process”. What do you say to that?
I will say that my client has not been allowed the due process of law. Due process of law will include hearing their merits to their right, protected by entrenchment under Section 36 (1) of the constitution.
How did they come about asking you to pay N8 million?
That is what I am saying; that it cannot be a waste of time. The court belongs to the generality people of Nigeria and the people of Nigeria cannot avoid to be ruled by invalid law. Which one is more abuse? Is it being ruled by invalid law or asking that the provision of the constitution should be enforced instead of looking at the rule of the court? What rule of court really have we breached? We have now assisted the court in showing that there is no Section 285 (7) but its invalid insertion by invalid legislation in the first and second alteration Acts.
This is the first time that we are seeing the attention of everybody directing at this Section 285 (7). Has this never been challenged before you did in court?
No. No lawyer has brought the validity of Section 285 (7) as an issue before the Supreme Court. I went the extra mile, even looking at this insertion into the constitution and to find out how it was inserted to become part of the constitution.
Why should I be prevented from doing my work? Why would doing my work lead to a sanction? They said we should appeal to God, I have taken it in good faith. I am appealing to God because our God is a God of justice and knowledge.
Is there anything NBA or the National Judicial Council can do?
I will leave it to them. I have done my duty, played my part, for there the honour lies. I leave the rest to the National Judicial Council and the people of Nigeria. I haven’t done anything wrong. Look at the way the media, without getting our own side of the story, were trashing me and making me look like a fall guy.
It seems to us that all these are attempts to circumvent justice. What is your take on that?
Well, as a student of reality school of thought in jurisprudence, they say reality is not legality but, by and large, reality follows legality. By the way things have gone in this matter, these people have not been able to be heard. Of course we wouldn’t have gone to Supreme Court if the Supreme Court did not use Section 285(7) to strike out the consolidated appeal… What is wrong in showing them the law they used does not exist? I can not be intimidated by anybody. I fear nobody but God. So the end result is that these people have not been heard.
What did you think is the merit of this case itself?
Look at where it has ended, or how it seems to have ended.They said we should appeal to God; that’s what the presiding judge said. And Justice Tanko Muhammed accused me of letting my client go to TheNEWS to trash them. I did not even read it, I was not his counsel by the time Ogboru came here. So I was also baffled. No matter how anybody tries to put me down, lifting is of Jehovah; only God can put somebody down.
I am shocked this can happen in a country that has produced Onyema of the Supreme Court, Kayode Esho, Chukwudifu Oputa, Chinua Achebe and Wole Soyinka!
Why are you not a SAN?
I don’t apply. And I will not apply. I remember one of their Lordships said conferring senior advocate is their own oil well. A retired justice of the Supreme Court said that! I am not looking for allocation of oil well.
What is the situation of the judiciary and the society itself; the implication of what has happened to you at the Supreme Court?
From all that you have seen, I have been denied fair hearing and in trying to make sure that fair hearing is granted, this is where they have taken me to. This very serious for the generality of Nigerians. How can this thing happen in a country that has produced the gentlemen that I have mentioned: Adetokunbo Ademola, Teslim Elias, Gani Fawehinmi of blessed memory, Chief Rotimi William and others?