Introduction

Nigeria is a constitutional democracy founded on the principle of separation of powers amongst the tripod of legislature, executive and the judiciary. This is aptly captured by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 4 of the Constitution makes clear provisions on legislative powers and donates the powers to the National Assembly and States’ Houses of Assembly at both national and subnational levels respectively. The executive powers of government aptly provided under section 5 of the Constitution reside in the President of the Federation and Governor of each state of the federation.  Section 6 of the Constitution provides for judicial powers which are exercisable by various courts in the country both at federal and state levels. All the three arms of government are independent of each other without any overlap. Although the Constitution appreciates the position of checks and balances in the exercise of government powers by various arms of government, it does not envisage usurpation or disruption of the activities of any other arm of government duly carried under the law. The independence of each arms of government has received judicial blessings in plethora of cases which include: Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26 SC and Friday v. Gov., Ondo State (2022) 16 NWLR (Pt. 1857) 585 SC.

 

In Kayili v. Yilbuk (supra), the Supreme Court held that:

Section 6 of the 1979 Constitution is in pari materia with section 6 of the 1999 Constitution, and vests the judicial powers of the Federation in the courts; while section 5 of both Constitutions vest the executive powers of the Federation and the States in the President and the Governors respectively. The Constitution is very clear and specific on separation of the powers between the arms of government, to wit: the Executive, the Legislature and the Judiciary at both the Federal and State levels. Thus, the Executive cannot exercise or usurp the powers of the Judiciary and vice versa. (P. 55, paras. D-G)

 

It is imperative for each arm of government to know the extent of its powers and the limits thereof. It is not within the contemplation of the Constitution that an arm of government will take over, impugn or override the powers of the other arms.  The Nigerian Apex Court further explained the imperative of separation of powers and independence of each arm of government thusly in Friday v. Gov., Ondo State (supra):

The principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. Each arm -the executive, legislative and judiciary is separate, equal and coordinate department and no arm can constitutionally take over the functions clearly assigned to the other. The powers and functions constitutionally entrusted to each arm cannot be encroached upon by the other. The doctrine is to promote efficiency in governance by precluding the exercise of arbitrary power by all the arms and thus prevent friction. The doctrine of separation of powers is the bulwark or anchor on which the survival of Nigeria as a nation must depend. While each arm of government must respect the other arm in the interest of the smooth running of government machinery, such respect must never degenerate to the level of one arm being allowed to usurp or impinge on the exclusive domain of the other as spelt out in the Constitution. [A.-G., Abia State v. A.-G., Federation (2003) 4 NWLR (Pt. 809)124; Kadiya v. Lar (1983) 2 SCNLR 368; Unongo v. Aku (1983) 2 SCNLR 332; Lakanmi v. A.-G., Western Nigeria (1971) 1 WNLR 201; A.-G., Anambra State v.Okafor (1992) 2 NWLR (Pt. 224) 396 referred to.] (Pp. 644-645, paras. D-F; 648-649, paras. G-B)

 

Despite the pronouncements of the Supreme Court in the above mentioned cases and several others, it is curious that some recent decisions coming from different courts in the land tend to supplant this truism, impugn the essence of the separation of powers and independence of the three arms of government. This is the basis upon which the recent judicial orders across the country stopping investigation and/or prosecution will be reviewed.

 

  • Case of Dr Abdullahi Umar Ganduje – Ex Governor of Kano State

The Kano State Public Complaint and Anti-Corruption Commission announced on July 18, 2023 that it has begun an investigation into the allegation of missing 100 Billion Naira local government fund of the State. A letter of invitation had been sent to the former governor of Kano State, Dr Abdullahi Umar Ganduje who was the Chief Executive of the State between 2015 and 2023 by the anti-graft commission. A day after the announcement, Federal High Court Kano Division granted an order restraining the anti-graft commission from continuing with its investigation pending the determination of the substantive suit. Justice S. A. Amobeda in his ruling gave an interim order:

“restraining the respondents jointly and severally, personally or through their agents, servants, privies and/or assigns, from arresting whomever and however from inviting, investigating, arresting, detaining, harassing and/or intimidating the applicants in respect of local governments herein, pending the hearing and determination of the applicants’ motion on notice.”

The court further stops the Commission from “taking any further steps in connection with, or relating to, or arising from the invitation by the respondents against the applicants, as communicated in the first respondent’s letters, dated July 7 and 10, 2023, respectively, pending the determination of the applicants’ motion on notice.”

 

It is needless to state that it is within the vires of the Kano State Anti-Corruption Commission to investigate and prosecute corruption cases as an executive body. An injunction, although interlocutory, which tends to undermine the exercise of this executive power is apparently arbitrary to say the least.

 

  • Case of Hudu Yunusa-Ari – suspended Adamawa State Resident Electoral Commissioner

Hudu Yunusa-Ari was INEC Resident Electoral Commissioner for Adamawa State before he was suspended for his infamous role in the declaration of the candidate of the All Progressive Congress (APC) as the winner of the Governorship Election in Adamawa while collation was still on-going after April 15, 2023 supplementary election. Mr Yunusa-Ari was suspended by INEC and the case was reported for investigation and possible prosecution. On July 10, 2023, the suspended Resident Electoral Commissioner approached a Federal High Court in Suit NO FHC/ABJ/CS/935/2023 asking the court to stop his prosecution pending the determination of the election petition before the governorship election tribunal in respect of Adamawa State 2023 governorship election. Justice Dontus Okorowo after listening to Michael Andoaka, SAN on behalf of Mr Yunusa-Ari asked the parties to maintain status quo. The order effectively stops further investigation or prosecution of Mr Yunusa-Ari. This amounts to restraining the respondents which include INEC and the Attorney General of the Federation (AGF) from taking further steps against Mr Yunusa-Ari pending the hearing of the substantive application. The AGF is the highest prosecuting authority in Nigeria in line with the provisions of section 174 of the Constitution. A restraining order against the AGF ultimately restrained all prosecuting authorities in the country.

 

  • The case of Mr Godwin Emefiele- Suspended Governor of Central Bank of Nigeria (CBN)

In December 2022, a High Court of the Federal Capital Territory presided over by Hon. Justice M. A. Hassan granted restraining orders against the AGF, the State Security Service (SSS), the Inspector General of Police and the C.B.N from arresting the ex-Central Bank Chief. This order was granted in an application brought by the Forum for Accountability and Good Leadership. It is curious that the beneficiary of the order, Mr Godwin Emefiele was not a party to the suit. The order was granted ten (10) days after the initial processes were filed. Apart from being a record in the adjudication practices in Nigeria, it is curious why the respondents were not given enough time to respond to the application.

In a related development, two Judges of the High Court of the Federal Capital Territory voided the arrest and detention of Mr Godwin Emefiele by the State Security Service (SSS) as illegal and a violation of the initial order of Justice M. A. Hassan. The ruling of Hon. Justice Hamza Muazu was made on July 13, 2023 while that of Hon. Justice Bello Kawu was made on July 14, 2023.

 

  • The case of Ex-Governor Bello Matawalle of Zamfara State

The immediate former Governor of Zamfara State, Bello Matawalle is also a beneficiary of judicial order restraining the anti-graft agency, the Economic and Financial Crimes Commission (EFCC) from arresting, inviting or prosecuting him. It is noteworthy that the EFCC has been investigating the activities of the former Governor and some other state officials in respect of funds meant for security votes, estacodes and other sundry expenses. However, in a ruling delivered by Hon. Justice A. B. Aliyu in SUIT NO: FHC/GS/CS/30/2021, the Federal High Court sitting in Gusau, Zamafara State made the following orders against the AGF and EFCC in favour of Matawalle as follows:

“An order of injunction is made restraining the EFCC whether by itself, its agents, employees, servants, operatives, detectives, privies, investigating officers and other persons by whatever name called, from inviting or further inviting, intimidating, harassing and threatening to arrest or detain or from arresting or detaining any past or present official of the government of Zamfara state on the basis of the same facts or similar facts as herein stated.”

“An order is made setting aside EFFC’s letter of invitation to past and present officials of the Zamfara state government dated 28th, September, 2021 or any other date same being ultra vires (beyond) the powers of the EFCC, and therefore, null and void and of no effect whatsoever.”

 

The ex-governor has approached the Federal High Court Abuja Division to give effect to the judgment of Hon. Justice A. B. Aliyu. The point argued in Suit No: FHC/ABJ/CS/753/2023 has been taken and judgment in the case has been adjourned to August 30, 2023.

 

Limits of the Jurisdiction of Courts

The jurisdiction of courts in Nigeria is constitutional and as stated above, encapsulated by section 6 of the Constitution. The limit of the jurisdiction of court lies in the provisions of the Constitution and laws establishing various courts. Where there is no jurisdiction, the courts lack the right to make a decision. This was the position of the Supreme Court in the case of President, F.R.N. v. National Assembly (2023) 3 NWLR (Pt. 1870) 1:

Jurisdiction is the authority a court has to decide matters, and where the court has no jurisdiction, with respect to any matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. [Ajomale v. Yaduat (No.1) (1991) 5 NWLR (Pt. 191) 257 referred to.] (P. 49, paras. B-C).

 

It is apparent from the decisions of the Supreme Court that the courts do not have jurisdiction to interfere with the workings of the other arms of government. The executive bodies created under the Constitution or other laws have their respective mandate which the courts do not have power to impugn or interfere. The constitutional or statutory functions of the executive bodies such as the Police, the EFCC, ICPC or any anti-graft or investigative agencies cannot be usurped by the Courts. Likewise, the courts cannot stop these agencies from performing their constitutional or statutory functions. This position has received judicial blessings severally. In the case of I.G.P. v. Ubah (2015) 11 NWLR (Pt. 1471) 405 CA, it was held that:

The court lacks the power to issue declaratory and injunctive reliefs with a view to impeding the result of police investigation made pursuant to the statutory duty under section 4 of the Police Act. (P. 450, para. B)

 

In addition, the Court of Appeal in upholding the powers of the Economic and Financial Crimes Commission (EFCC) to investigate and prosecute offenders without interference from the court held in Danfulani v. E.F.C.C. (2016) 1 NWLR (Pt. 1493) 223 that:

For a person to go to court to be shielded against criminal investigation and prosecution is an interference with the powers given by the Constitution to law officers in the control of criminal investigation. In the instant case to argue that the 1st respondent could not investigate the complaint would be an argument seeking to preclude the body from exercising its duty conferred upon it by the enabling statute. [A.-G., Anambra State v. Uba (2005) 15 NWLR (Pt. 947) 44 referred to.] (P. 246, paras. D-F)

 

This position was reiterated by the Court of Appeal in Nwafor v. E.F.C.C. (2021) 13 NWLR (Pt. 1794) 548 CA. The Court stated clearly that the EFCC cannot be stopped legitimately by a Court from carrying out its statutory duties. The Court held:

 

Whilst performing its legitimate duties, no court of law has the power to stop the Economic and Financial Crimes Commission (EFCC) from investigating a crime and, therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution, since no citizen has any right to be an outlaw under the laws of this country. [Atakpa v. Ebetor (2015) 3 NWLR (Pt.1447) 549; I.G.P. v. Ubah  (2015) 11 NWLR (Pt.1472) 405;  Nzewi v. C.O.P. (2000) 2 HRLR 156; Badejo v. Minister of Education (1996) 8 NWLR (Pt.464) 15; Hassan v. EFCC (2014) 1 NWLR (Pt.1389) 607; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt.767) 606; A.-G., Anambra State v. Uba (2005) 15 NWLR (Pt.947) 44; Christlieb Plc v. Majekodunmi (2008) 16 NWLR (Pt.1113) 324; Onah v. Okenwa (2010) 7 NWLR (Pt.1194) 512; Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 referred to.] (Pp. 600-601, paras. H-C).

 

The Court is the constitutional bulwark against abuse and ultra vires actions by both the legislative and executive arms of government. The courts are empowered by the Constitution to come in when the other arms of government act contrary or in excess of their powers. The power of Courts however does not extend to impeaching or eroding the powers rightly exercised by other arms. The power of the judiciary to curb inordinate exercise of powers by other arms of government was given judicial imprimatur in Alamieyeseigha v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 CA where the Court of Appeal held as follows:

The judiciary has a fundamental role to play as the protector and guardian of the Constitution. It also has the mandate to curb the excesses of overbearing executive and legislative acts by its pronouncements. [Ekpenkhio v. Egbadon (1993) 7 NWLR (Pt.308) 717Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) 410 referred to.] (P. 126, paras. F-G)

 

This important role of the judiciary to protect the Constitution from abuse and excesses does not culminate into judicial appropriation of powers of other arms of government. In Inuwa v. Gov., Gombe State (2020) 5 NWLR (Pt. 1716) 32, the Court of Appeal pronounced that:

The concept of separation of power is that none of the three arms of government under the Constitution, that is, the Executive, Legislature and the Judiciary should encroach into or usurp the powers of the other. [Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76; A.-G., Abia State v. A.-G., Fed. (2003) 4 NWLR (Pt. 809) 124 referred to.] (Pp. 55-56, paras. G-A)

 

Effects of Judicial Encroachment on Executive Power

It is necessary to advance the negative effects of judicial intrusion into executive powers of investigation and prosecution through judicial orders. It is a constitutional aberration for an arm of government- the judiciary in this case whose duty is to serve as gatekeeper for constitutionalism- to trespass on the powers of the other arms of government. It weakens the rule of law and promotes illegality and abuse of powers. Judicial orders which stop investigation or prosecution tend to overrun the exclusive powers of the Executive; it has the potency of promoting corruption and financial crimes in the country with suspects secured in their knowledge that the Judiciary will always come to their aid whenever approached. Whereas the Constitution places obligations on all arms of government to ensure a corruption free Nigeria under Section 15(5). The judicial attitude of stopping investigation or prosecution may serve as further impetus to perpetuate Executive disregard of Court orders as a form of resistance.

 

Notably, the judicial orders under review and others of the same tenor emanated from the Federal and States High Courts. The Court of Appeal and the Supreme Court have maintained unyielding position against usurpation of powers of other arms of government. It is therefore necessary for the Judiciary as an arm of government to look inward and take practical steps to stem the tide of issuing orders stopping investigation and prosecution in underserving cases. Training and retraining of judicial officers on the limit of judicial powers, separation of powers and the rule of law need to be emphasized. The judiciary needs to stand firm and wield its disciplinary stick against any erring judicial officer who yielded without justification to impugning the investigation or prosecution of corruption cases in the country.

 

It is important to add that the Judiciary should learn how to wait until its jurisdiction and powers are appropriately and properly invoked before exercising same. While investigation in suitable cases will eventually culminate into prosecution, the Judiciary would therefore, be well seized to make appropriate orders at the stage of prosecution without any let or hindrance. This would also not give out any inordinate impression to the public that the Judiciary is not only usurping the powers of other arms of government but in cahoots with corrupt officials to perpetuate illegality and unconstitutionality.

 

Conclusion

It is clear from the foregoing that each arm of government has its constitutionally assigned role. It is not within the contemplation of the Constitution that an arm of government should preside over the affairs of the other arms. The Judiciary is clearly assigned the role of policing other arms of government to ensure supremacy of the rule of law and ward off abuses or excesses. The powers given to the judiciary does not extend to usurping, appropriating or impeaching lawfully exercised powers of the other arms of government.

 

It is however improper to find decisions of courts in recent times which stepped on the constitutional and statutory powers of other arms or agents of government. This is more so when it is noted that a single thread that ran across all the cases under review is that they were filed by politicians or politically exposed persons and rulings/judgments were delivered in their favour in utter disregard for the constitutionally protected principle of separation of powers. It is necessary to warn the Judiciary against abuse of its highly cherished constitutional role of checks on the other arms of government. While it must stand as watchman against legislative and executive recklessness, the court must be wary of becoming the danger it is often sought to prevent.

 

 

 

NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

DO YOU WANT TO SHARE YOUR VIEWS ON OUR BLOG?

JURITRUST Centre for Socio Legal Research and Documentation invites submission of short articles from VOLUNTEER CONTRIBUTORS who are interested in sharing their perspectives on salient issues in the administration and development of the Nigerian Criminal Justice System, comparative systems and related issues. CLICK HERE find out how to send us your articles. Thank you

Juritrustlaw We would like to show you notifications for the latest news and updates.
Dismiss
Allow Notifications