Phase One (Pre-Study and Context) Quantitative Data

188 Also in AG of Eastern Nigeria V AG of the Federation,⁵³ the Supreme Court declined to pronounce on the irregularity of the 1963 census figure for the reason that the plaintiff could not establish sufficient interest. By so doing, in the words of Emiri O.F., the “Court lost a unique, singular opportunity to put the country in proper perspective in terms of a more accurate population figure… If the court had looked at the merit of the complaint therein, without recourse to legal formalism, it may have employed its verdict to lay to rest the census hiccup and the figures generated in our national life.⁵⁴”

Notwithstanding, the decision in Adegbenro V AG of Federation⁵⁵ is unimpeachable as the court refused to declare the Emergency Act of 1961 and Emergency Power (General) Regulation of 1962 unconstitutional at the instance of Adegbenro, until the issue of whether he was the duly appointed Premier, pending in another court was determined.

Similar scourge of earlier legal timidity struck the court in Williams V Majekodumi⁵⁶ and in Awolowo v Minister of Internal Affairs.⁵⁷

In this era, the judiciary appeared not to have fostered the principles of rule of law. It largely permitted the abuse of executive powers. This tacit approval of executive lawlessness and legislative supremacy led to the collapse of the supposed democracy⁵⁸. Military rule was thus ushered in by January, 1966.

189 sitting of the Senate and the House of Representative⁶⁰. The joint committee had, therefore usurped the constitutional powers of the National Assembly. The Supreme Court held that the procedure adopted for the enactment of the bill was unconstitutional.

On the executive side, it will be recalled that in the famous Shugaba‟s case,⁶¹ it was held by the Supreme Court, confirming the decisions of the High Court and Court of Appeal, that the deportation of a citizen of Nigeria to another country was illegal and was a breach of the human rights provisions of the Constitution.

In Unogu v Aku,⁶² the appellant was the defeated candidate in the Benue State Governorship election in July 1983. His petition to have the results of the election nullified was frustrated by an Act of National Assembly⁶³ which stipulated that any election petition filed before a High Court, which was not disposed off within 30 days, was time barred and would become null and void. The thirty days elapsed in the middle of the case, which had involved an appeal to the Court of Appeal on some interlocutory matters. The question which arose for the consideration of the Supreme Court was whether a law which effectively fettered the operations of the judiciary was not in breach of the constitutional doctrines of separation of powers, and the independence of the judiciary. It was held that the relevant section of the Electoral Act⁶⁴, was null and void for these very reasons and also for infringing the right to fair hearing. Bello JSC, as he then was, in delivering his judgment adopted the following relevant passage from the judgment of Fatai-Williams CJN, in Attorney General of Bendel State v Attorney General of the Federation and 22 ors:⁶⁵

By virtue of the provisions of section 4(8) of the Constitution, the courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative power, whether substantive or procedural as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.

60 1979 Constitution S. 59 (3)

61 Minister of internal Affairs v Shugaba Abdulrahaman Darman (1982) 3 NCLR 915

62 (1983) 2 SCNLR 332

63 Electoral Act, 1982

64 Section 140

65 Op cit

190 What is more, whilst conceding the basic principle that a court must not interpret its jurisdiction under section 4(8)⁶⁶ to include the internal proceedings of the National Assembly, unless the Constitution made provisions to that effect, the learned Justice of Supreme Court added however, that if the Constitution makes provisions as to how the legislature should conduct its internal affairs, or as to the mode of exercising its legislative powers, the court is duty bound to exercise its jurisdiction to ensure that the legislature complies with the constitutional requirements.⁶⁷

In concluding his judgment, Bello, JSC, referred to the requirement that each arm of government should respect the rights of the other thus:

As the courts respect the right of the legislature to control its internal affairs so the constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts. It may be observed that section 73(1)(c), 111(1)(1), 233 and 239 of the Constitution empower the National Assembly or a House of Assembly, as the case may be to make laws for regulating the practice and procedure of the Federal High Court and the High Court of a State. It seems to me, if in the purported exercise of the powers under these sections the National Assembly makes any law which hampers, interferes with or fetters the jurisdiction of a court of law such law shall be void for being inconsistent with the provisions of the second limb of section 4(8).

At the threshold of this period was the test case of Awolowo v Shagari. ⁶⁸ In other to establish whether the respondent was the rightful winner of the presidential election, the court was called to interpret section 34(1)(C) of the Electoral Act 1977 and to see whether it was complied with (where the elected President was required to score ¼ of the votes cast in at least 2/3 of 19 States). The issue before the court was, what was 2/3 of the nineteen states of Nigeria? In declaring Shagari as the winner, both the Special Electoral Tribunal and the Supreme Court held that 2/3 of 19 states of Nigeria meant 12 2/3 states and not 13 States using the Golden rule to arrive at its interpretation and pronouncement.

Dismissing the decision as a show of literalism and semantics, Professor Nwabueze pointed out that it confused numerical superiority with geographical spread and as well introduced

66 CFRN

67 A.G of Bendel State v A.G. of Federation

68 (1979) 6-9 S.C 51

191 inconsistency in judicial interpretation by isolating 2/3 as applied to presidential elections for special treatment⁶⁹. From all indication, the decision was calculatedly mechanized to achieve a strange result. It was on this shaky stubble foundation that civil rule was introduced into the country. Hence, immediate cracks on the democracy houses were bound to occur⁷⁰.

In a number of other election petitions that followed, the courts attracted ever greater reproach. Little wonder Obinna Okere lamented the fact “that elections can be won on mere technicalities or that a minority candidate could be pronounced “Victor” by default…. Is not only incomprehensible, but also affronts the sense of democratic and natural justice.‟‟⁷¹ Awolowo‟s case canvassed above and perhaps Nwobodo v Onoh⁷², where the court left the issue at hand and dismissed the petition on the basis that the standard of proof, which is proof beyond reasonable doubt, and required for proof of falsity of result (a criminal offence) in civil cases, was not proved. These cases are sufficient illustrative. However, the performance of the court in Omoboriwo v Ajasin was an improvement.

Apart from the Election Petition cases, the courts also did not show sufficient courage in Archbishop Okogie v AG of Lagos State⁷³ (where the issue appertained to non-justiceable provisions) and in Adesanya v President of Federal Republic of Nigeria⁷⁴ (where the issue was about locus –standi)

What is obvious is that in this period, the judiciary‟s response to democratic motives were staggering between passivism and activism, the passivity being more noticeable in election petition matters. Yet for Emiri O.C., by and large “this was a period when judges stood their grounds against the excesses of politicians and state authority in its bid to instill democratic norms in our society.⁷⁵