I am always reluctant to comment about a judgment until I have had the opportunity of reading the judgment in full for very obvious reasons. Today I am forced to make exceptions and discuss the judgment of the FHC which upheld the Executive Order No 6.
Warning Very Long Thread.
Warning Very Long Thread.
To be clear I am not going to comment on the rightness or wrongness of the judgment particularly for a judgement I have not read, this is not a case review and I am not counsel instructed in the case, if I was, my recourse would have been to a higher court.
I am forced to talk about the judgment because of the news which broke today that President Buhari has purportedly placed a travel ban on 50 unnamed Nigerians in giving effect to the Executive Order No 6 of 2018. And my views are restricted to what I read from different media.
This case has finally given me cause to discuss an alarming deterioration in legal scholarship in Nigeria among Law Students, Lawyers, Law Report Editors and even Judges. Today there is a complete erosion of the concept of ratio decidendi.
Nigeria belongs to the legal clan of countries that practice the Common Law system. And the bulk of the Law practiced in Nigeria were received [pronounced copied] from England and similar Common Law jurisdictions.
A chief feature of the common law system is that not all parts of a judgment of a court are of binding effect. An interrelated concept is the doctrine of stare decisis [or judicial precedent] which means let the decision stand. I will explain.
A judgment is typically divided into two parts: the non-binding part: obiter dictum & the part that is of binding effect - ratio decidendi. Ratio decidendi literally interprets as the reason for the decision; the reasoning behind the arrival at a particular verdict by a Judge.
Another point that must be made is that a court is necessarily mandated to circumscribe itself to the case before it and can't make a case for parties. Thus in its ruling a court can only take cognizance of the arguments of the parties before it. The court gives what it is given.
In the places from where we copied our laws, and indeed in time past in Nigeria, when a judgment is delivered, scholars will study the judgment and determine what is the ratio. In those days, law reporters also distilled the ratio from the decision and reported it for future use.
The point being made is that what ought to be cited to a court as authority or judicial precedent is only the binding part of the judgment, the ratio. I know there’s this the argument that the obiter of the Supreme Court is binding. That is of dubious origin.
Today in Nigeria, once a court delivers a judgment, no one is interested in finding out what the ratio is, the law reports will simply reproduce the judgment and give you what they termed “holding” or “held”. No analysis and no attempt to distil the ratio.
Today, lawyers wantonly single out phrases in a judgment and cite before a court under the stare decisis doctrine. Some judges are either too lazy or burdened with caseloads that they make no attempt to distil the ratio but swallow hook, line & sinker [ratio decidendi and obiter]
Today Attorneys -General, Solicitors-General and other law officers don’t bother to explain to their principals the reason for a judgment but they simply brandish a judgment and say the court ruled in our favour. Let us give effect to the judgment.
On 4th July 2018, President Buhari issued an Executive Order dubbed PRESIDENTIAL EXECUTIVE ORDER No. 6 of 2018 ON THE PRESERVATION OF SUSPICIOUS ASSETS CONNECTED WITH CORRUPTION AND OTHER RELEVANT OFFENCES.
There was public outcry over th unconstitutionality of the EO. I still hold the view that it's partly unconstitutional to th extent that it encroaches on judicial powers & infringe on citizens' rights while th constitutional parts are caught by th doctrine of covering the field.
Two lawyers ultimately instituted an action before the Federal High Court challenging the unconstitutionality of the Executive Order. I do not know what the lawyers argued before the Court and I cannot pass judgment on them.
What I read is that they challenged the order on the grounds that it violated rights to property & denied fair hearing to property owners against which the order was executed. And that by the provisions of Secs 5, 36 & 43 CFRN, the President lacked the powers to issue the EO.
In delivering its judgment, the court Coram Justice Ijeoma Ojukwu dismissed the case and held that it is within the powers of the President, as granted by the Constitution, to issue Executive Orders for the execution of policies by the executive arm of government.
More importantly for the purpose of our discussion, the court held that the powers of the President to issue and execute Executive Orders is to the extent that such RESPECT, AND DO NOT ENCROACH, THE PRINCIPLES OF SEPARATION OF POWERS. This, I believe, is the ratio decidendi.
I understand that the court also held that the Executive Order 6 did not violate the right of citizens to own property but was rather informed by President Buhari’s willingness to save suspected property from being dissipated.
I also understand that the court however cautioned that the powers donated to the AGF under the EO must be exercised in accordance with the provisions of the CFRN and that the AGF must seek permission of the court i.e. obtain a court order before seizing any suspected property.
I have argued that EOs are constitutional so I am not surprised that the court upheld the right of the President to issue them. I still maintain tho that even the Presidency doesn’t appear to fully grasp the provenance of that power. I don’t think the court made it clear either.
Today President Buhari issued a statement mandating the AGF to implement the EO.6 in full force, the statement began with an acknowledgment that the statement was issued, “following the instant judicial affirmation of the constitutionality and legality of the Executive Order”.
I cannot resist the temptation to express my ecstacy at President Buhari’s new found zeal to give effect to judgments of Nigerian courts. I have lost count of the no of judgments/rulings including those issued by the same Judge which he has brazenly refused to obey. I digress.
I must also mention that it is interesting that the Presidency is immediately implementing a judgment of a court within 48 hours or so, when parties and the general public are still within their rights [and time] to appeal against the judgment. Again I digress.
Now I have a number of questions which I will pose on the successive tweets. And I plead with my distinguished seniors and colleagues to come to my aid. @TexTheLaw @akaebube @JudgeIyke @Oddy4real @adedunmade
1. Except I am wrong, having perused the Executive Order No 6, it is clear that the subject matter of the Executive Order are illegally acquired assets not the individual owners. So what has that got to do with placing a travel ban on 50 Nigerians?
2. Part of the decision of the court was that the Executive Order should not encroach the powers of the Judiciary. If a court trying a person granted him bail after considering he doesn’t pose a flight risk. Is the President or AGF right to impose a flight ban on the same person?
3. The court also held that orders of court are required before the President or the AGF can give effect to the Executive Order by e.g. seizing assets. Please does anyone know if the President or AGF obtain an order of court before placing the travel ban?
In the final analysis you will all see that I have tried to avoid mixing politics with the law but I must add that I find it extremely difficult if not impossible to situate the travel ban and the directive of the President outside the confines of the current political climate.
I have said enough for one day. @emma_dele you can now call me.
