The adjudicatory process or system is a sine qua non as a dispute resolution mechanism between individuals and institutions in any form of civilized setting. The essence of litigation is to resolve disputes that would most certainly
arise in society between individuals and also between institutions. The process of litigation becomes more complex as the dynamics and contradictions within our communities and societies evolve. They obviously evolve as a natural consequence of growth and development. The French philosopher and writer Montesquieu wrote on the Separation of Powers between the Legislature, Executive and the Judiciary. His writing was profound in the sense that he saw the very pressing need for one individual not to be in more than one of these great institutions of State. This article deals with civil litigation and the survival of democracy but it is imperative that we have a little background understanding of the institutions charged with the responsibility of the operation of civil litigation and indeed the general litigation process.
In early times, it was not uncommon for the same institutions to carry out the function of legislating and adjudicating. In fact in recent times, the Lord Chancellor of the United Kingdom being an elected member of parliament also sat in the executive as a cabinet member and presided in the House of Lords to hear cases. This is an affront on the principles propounded by Montesquieu. This has however now changed. Without resort to too much history, it is absolutely clear that the judicial arm of government is based on the same ideas and concepts upon which societal values ultimately rest. It is charged with interpreting the norms, rules and regulations, the Laws and Constitution of the nation. Section 6 of the 1999 Constitution of the Federal Republic of Nigeria deals generally and specifically with the power of the judiciary. Apart from our Common Law heritage, the judiciary derives its powers principally from our written constitution. Section 6(1)-(2) of the Constitution of the Federal Republic of Nigeria 1999 provides: “The judicial powers of the Federation shall be vested in the Courts to which this section relates being Courts established for the Federation; The judicial powers of a State shall be vested in the Courts to which this section relates, being Courts established subject as provided by this Constitution, for a State”
Section 6(3) provides that the Courts referred to are superior Courts of record and section 6(5) (a) – (i) goes on to state the Courts in a hierarchical order as follows: Section 6(5) (i) and (k) provide for a reserved power for further courts to be created both at Federal and State levels. Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 appears to provide for the Courts to resort to such powers where necessary. The section provides: “The judicial powers vested in accordance with the foregoing provisions of this section shall extend, notwithstanding anything to the contrary in this constitution to all inherent powers and sanctions of a Court of Law.”
Although there is no specific reference to the fact, it however leaves and perhaps gives the Courts of Law latitude in this regard. Suffice to state that Section 6(6) (b) circumscribes the fact that the Courts are under a legal duty to adjudicate on “matters between persons, or between government or authority and to all actions and proceedings relating thereto.” The Courts have a constitutional duty to determine. “any questions as to the civil rights and obligations of that person.”Our democratic experience up until now has been epileptic. In our 49 year history, our current democratic form of government has been the longest period of democratic rule and I dare say the impact of the judiciary as an institution has been startling. I use the word ‘startling’ in a very positive sense. Democracy as a model can operate under both a written and unwritten constitutional type of government. The British model of democracy operates soundly on an unwritten Constitution. Note however that to a large extent, the real difference is of no moment in the sense that although the British model is referred to as unwritten, what you have is a body of several written laws. With a written Constitution like that of the United States and indeed the Nigerian Constitution, the laws are embodied in one Supreme Document. What is however vital to whichever model adopted is the idea and concept of the Rule of Law. In my view, democracy and the Rule of Law go together.
Lord Justice Coke had many centuries ago in a dispute concerning the people and the then King of England said: “No one, not even the King was above the law.” Apart from placing the Courts right at the centre as the main institution guarding the cherished freedom of man, the decision also entrenched the principle that no one is above the law. Dealing with Ten Key Legal Principles recently , Professor Gary Slapper of the Open University in the United Kingdom cited the Rule of Law as one of those key principles. He said: “This is the defining characteristics of civilized democracies, the principle means that everyone, however powerful, must obey the democratically passed law, no one is above the law, the rules are more important than important people. We are ruled by rules, not rulers.”In essence, for democracy to thrive and be sustained, the judicial arm of government must rise up to its responsibilities of interpreting our laws. That means interpreting the spirit and the letters of our laws. It is a Supreme Responsibility.
THE COURTS
The Superior Courts of record are created by the Constitution. Their powers are derived principally from Section 6 of the Constitution of Federal Republic of Nigeria 1999. The Supreme Court of Nigeria, The Court of Appeal, the Federal High Courts, the High Court of the Federal Capital Territory, The State High Courts, The Sharia Courts of Appeal, The Customary Courts at both the state and Federal levels and the newly created Industrial Courts all play an incredibly significant part in the general dispute resolution process. These Courts have their various powers and jurisdiction circumscribed and defined by the 1999 Constitution. Section 232(1) and (2) provide for the original jurisdiction of the Supreme Court and Section 233(1) and (2)(a)-(f) provide for the appellant jurisdiction of the Supreme Court. Section 239(1) provides for the original jurisdiction of the court of Appeal and Sections 240, 241 (1)(a)-(f) and 241(2) deal with the appellate jurisdiction of the Court of Appeal. Sections 251 (1)(a)-(r) and 251(2)&(3) deal with the jurisdiction of the Federal High Court. Sections 257(1) deals with the jurisdiction of the High Court of the Federal Capital Territory, Abuja. Sections 262(1) and 2622) (a)-(e) deal with the jurisdiction of the Sharia Court of Appeal. Section 267 deals with the jurisdiction of the Customary Court of Appeal of the Federal Capital Territory Abuja. Section 272(1) provides for the jurisdictional base of the High Court of States, Section 281(1) and (2) provide for the jurisdictional base of the Customary Court of Appeal of a State and Section 285 deals with the Establishment of Election Tribunals. In essence, Sections 230-285 of the 1999 Constitution deal generally and principally with the structure and jurisdiction of the Superior Courts of record.
THE IMPACT OF THE ADJUDICATORY PROCESS
There is no doubt that civil litigation has played an incredibly important part in the development of democracy in Nigeria. I hasten to add that it is the real function of the judiciary to maintain the Rule of Law. I had referred to this point in the introductory part of this paper but I think without putting too fine a point on it that this duty is inherent in the creation of courts as a dispute resolution mechanism. In other words, the courts being the tool of the judiciary is the rudder upon which surely democracy must and should be kept afloat. That civil litigation would create an impact and will continue to be instrumental is vital in the whole process of democratic development. The impact has been felt in many areas, including, the registration of political parties, the interpretation of political party rules and regulations, election petition issues, the interpretation of the Constitution as it relates to State and Federal Powers, the powers of the executive, the practice and procedure of the legislative arm of government, the regulation of political parties and the interpretation of constitutional powers and rights. The activism by all stake holders have so far been instrumental in keeping the ship of democracy afloat.
REGISTRATION OF POLITICAL PARTIES
In order to participate in the election process, an individual has to belong to a political party . In view of the fact that we have over 100 million people in this country, it is not hard to imagine why there will be pressure to participate in the process. The question therefore is how many political parties should be allowed to participate in the process. Crucial to this question is the underlying fact that it is imperative that the people feel part of the process. Democracy is the rule by the people for the people and of the people. It is therefore absolutely vital that this is taken into consideration in representative right. The decision of the Supreme Court in INEC v Musa is extremely instructive in this regard. I consider this decision to be one of the most profound decision upon which our current democratic experience is based. In INEC v Musa the issues before the Supreme Court were: (1) whether the Independent National Electoral Commission (INEC) had powers under the 1999 Constitution and then Electoral Act of 2001 to make guidelines for political associations seeking to transform into political parties. (2) whether the guidelines made by the Independent National Electoral Commission pursuant to its powers under the 1999 Constitution and Section 162 of the Electoral Act of 2001 are unconstitutional and null and void. (3) these issues had also been canvassed before the two lower courts and the Court of Appeal had decided that INEC had exceeded its powers and acted unconstitutionally. The Federal High Court had held that INEC had acted in accordance with the powers given to it by the 1999 Constitution and the Electoral Act 2001. The sensitivity of this matter was such that it was important that the final Court gave a definitive decision on it. Several provisions of the Constitution and the Electoral Act came up for interpretation. Sections 221-229, 15(2)(d), item 15(a)-(i) of the 3rd schedule of the 1999 Constitution and Sections 162 and 79(2)(a) of the Electoral Act 2001 came up for interpretation.
Prior to the 2003 elections, only 5 major political parties were allowed to contest elections across the country. In 2002 however, there were agitations by more parties to take part in the then forthcoming general elections of 2003. If I may say, rightly so, that this agitation was inevitable because the political participation landscape had been opened. There was more freedom and inclusiveness in the affairs of the people by the people. It is therefore not unnatural that many did not feel represented by the five political parties that then existed. The question therefore without all the legal technicalities was whether INEC had the powers to regulate the process of formation of political parties and indeed whether that power extended to also deciding the number of political parties that could participate in the elections. The Supreme Court in this case held that INEC had powers to regulate political parties themselves but more importantly, it was constitutional for INEC to put a limit on the number of political parties that could participate in the general elections. The Court per Ayoola JSC stated this: “political parties are essential organs of the democratic system. They are organs of political discussion and formulation of ideas, politics and programmes. Plurality of parties widens the channel of political discussion and discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and programmes and generally provides the citizens with a choice of forum for participation in governance, whether as a member of a party in government or a party in opposition. Thereby ensuring the reality of government by discussing what democracy is all about in the final analysis. Unduly to restrict the formation of political parties or stifle their growth, ultimately weakens the democratic structure.”
The impact of this decision is absolutely clear. It made it possible for more people to participate in the democratic process.
ELECTION PETITION CASES
Almost every politician that has lost an election has gone to court to contest the decision. This has put the courts under an incredible strain since 1999. The judges at all levels have had to work extremely hard to make sure that the petitions are heard and fully adjudicated upon. The Supreme Court in Buhari v Obasanjo held that the Presidential election held in 2003 was conducted properly and that the irregularities were not substantial enough to invalidate the Presidential election. I also note here that the Supreme Court had also been called upon in 1999 to decide the Presidential Election Petition Dispute between Falae and Obasanjo. This is reported in Falae v Obasanjo . The court held amongst other things that there had been substantial complaint with the Electoral Act and the 1999 Constitution. The presidential election of 2007 and indeed the general election have also generated a lot of heat. General Mohammadu Buhari who was a flag bearer for the All Nigeria Peoples Party (ANPP) in the 2007 elections and Alhaji Atiku Abubakar, a Presidential candidate for the Action Congress (AC) are currently involved in a Presidential Election Petition Dispute with President Umaru Yar’Adua of the Peoples Democratic Party (PDP). The matter is currently before the Supreme Court.
It is important to state the pivotal role played by the Court of Appeal in the election petition process. Apart from the fact that it is a court of first instance in presidential elections petitions, it is also the final Court of Appeal for petitions emanating from all other elections including the governorship elections. In this regard, the court has had to grapple with so many election petitions. The central role played here by the Court of Appeal is obviously very crucial in the whole election dispute resolution process. Election petition cases are always very sensitive. This is more apparent in a fledging democracy. It is an incredibly sensitive process in a country like Nigeria where you have so many different and diverse groups of people. It is natural that we will continue to have several petitions until our democratic experience gets to a certain level of maturity.
Now it is important that the context in which this statement is made be put in proper perspective. In the more developed democracies, there are also very serious and sensitive election petitions but the number is much lower. In recent times, the Al Gore v Bush election petition decision of the United States Supreme Courts in 2001 was central to the political direction of United States at that time. Importantly, however, the United States Supreme Court in no small measure helped to sustain their very mature democratic experience. In our climes, our courts and most especially the Supreme Court has also done likewise. The decisions in all the presidential election petitions since 1999 have no doubt kept the ship of democracy afloat.
INTERNAL POLITICAL PARTY REGULATION
The hallmark of individual participation in politics is that those who decide to engage in politics as a profession must be disciplined. Disciplined in the sense that they must realize that the essence of their job is to represent the people and make sure that the rules that the people as a unit have made for themselves are properly followed. In a way, this is a passing reference also to the principle of the rule of law. The irony however, is that the politicians and parties often make rules which they do not adhere to. Political Associations and political parties must by law have a constitution. In fact this is one of the conditions to be met in order to become a political party.
The courts have for a long time had to deal with cases in which there have been flagrant breaches of perhaps misunderstanding of rules that political parties have set for themselves. The decided cases show that the courts have taken two approaches. These approaches could be described as interventionist and non-interventionist. Up until 2006, the latter had been the case. In Onuoha v Okafor , The Supreme Court per Obaseki JSC said: “The decisions of questions of a political nature are exclusively for the political party, the executive, the National and State Houses of Assembly. The lack of satisfactory criteria for a judicial determination of a political question is one of the dominant considerations in determining whether a question falls within the category of political question.” Irikefe JSC stated thus: “The matter in controversy in the appeal is whether a court has jurisdiction to entertain a claim whereby it can compel a political party to sponsor one candidate in preference for another party. If the court could do this, it would in effect be managing the political party for the members thereof, the issue of who should be a candidate of a given political party of any election is clearly a political one to be determined by the rules and constitution of the said party, it is thus a domestic issue and would not be justiceable in a Court of Law.”
The Supreme Court in Turaki v Dalhatu held: “A court of law has no jurisdiction to adjudicate on the issue of which candidate a political party should nominate or sponsor for an election. The exercise of this right is the domestic affairs of the party guided by its constitution. Since there are no judicial criteria or yardstick to determine which candidate a political party ought to choose, the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction. The question of the candidate a political party will sponsor is more in the nature of a political question which the courts are not qualified to deliberate upon and answer. If a court could do this, it would in effect be managing the political party for the members thereof.”
The above decision which represented the approach of the courts in years prior to the enactment of the Electoral Act 2006 can best be described as the non-interventionist approach. A proper understanding of this approach is very aptly put by I.T. Mohammed JSC in Ugwu & Anor. V Ararume & Anor. His Lordships comment repays reproduction and I reproduce it hereunder: “Let me start by saying that if history has anything to teach human beings. I think the machinery of law in a developing society is one such lesson that we must be ready to accept in this country. The case of Onuoha v Okafor ; Dalhatu v Turaki and several others too numerous to mention were decided by this court on the then prevailing laws. Certainly the duty of the court is to interpret and not to make laws. It appears that the legislature has found some lapses or lacuna in the provisions of Section 83(2) of the Electoral Act of 1982 under which the case of Onuoha v Okafor and Section 23 of the Electoral Act of 2002 under which Dalhatu v Turaki were decided respectively. These sections in the 1982 and 2002 Electoral Acts left the issue of substitution of candidates entirely in the hands of the political parties without any let or hindrance. But when the legislature realized that the political parties were abusing the unfettered powers of “making” and “unmaking” of prospective candidates for the political offices to be contested of election periods. It then decided to re-draft the specific provisions relating to substitution of candidates for the elective offices. This, I think, is what brought about section 34 of the Electoral Act 2006.”
His Lordship Oguntade JSC also stated thus: “My humble view on the decision in Onuoha v Okafor is that the same has ceased to be a useful guiding light in view of the present state of our political life. I have no doubt that the reasoning in the case might have been useful at the time the decision was made. It seems to me, however, that in view of the contemporary occurrences in the political scene, the decision needs to be reviewed or somewhat modified…” It is obvious that these two approaches represented the interpretation of the laws.This further reflected in the point made by Tobi JSC also in Ugwu & Anor. V Ararume & Anor. “cases are decided on their peculiar facts in the light of the enabling law. In both Onuoha and Dalhatu, there was no Section 34(2) of the Electoral Act 2006.”
The decision of the Supreme Court in Amaechi v INEC & Others can best be described as the Broad Interventionist Approach. Again, the judges showed through the courts that they will not allow the political parties to ride roughshod over the rules they have made for themselves and also, they will not allow them to usurp and abuse the Statutory Provision of the Electoral Act guiding this process. Katsina-Alu JSC delivering the lead judgment of the Court held thus: “It is my view that the candidate for PDP at the election was the appellant. His name was unlawfully removed. In the eyes of the law, he remained the candidate and this court must treat him as such. My view is that it was the appellant and not the 2nd respondent who must be deemed to have won the election. The argument that the appellant must be held to his claims overlooks that fact that this court has the wide jurisdiction to give consequential orders and to grant reliefs which the circumstances and the justice of a case dictate. Wherever justice demands it, this court shall rise to do justice without regard to technicality. I ought not to make an order which does not address the grievance of the party before this court. The only way to accord recognition to his rights unlawfully tramped upon is to declare that the appellant and not the 2nd respondent must be deemed to have won the April 14 gubernatorial election.”
It is obvious that the courts have risen up to the responsibility of steering the dispute resolution process in such a way that the polity is satisfied that there is hope for our fledging democracy. In my view, the impact of the adjudicatory process on the development of our democracy cannot at this point be quantified, but what is however certain is that the impact so far has been positive. There is no doubt that the impact will continue to be positive. With an independent judiciary, the constitutional role of the judges is far easier to attain. One cannot pretend that in the years prior to 1999, the neglect of the judicial arm of government made it difficult for the judiciary to actualize its supreme role. Now, the reason for this cannot be far-fetched, it is near impossible for the judiciary to perform properly in a military dispensation, the obvious tension wherein the military governments were operating as the legislative and both the executive arm made it difficult for the judiciary to carry out its duties. In any event, one can rightly say that in such a system of government, which is in every sense an aberration, it will be expecting too much for the impact of the judiciary to have in any form been felt. However, with the advent of democratic system of government, the judiciary has realized its supreme responsibilities.