Seeking a Political Solution After the Supreme Court Ruling

By

SEBASTINE HON
 

Before the epochal decision, the Federal Government had, through the Revenue Mobilisation Allocation and Fiscal Commission, submitted a bill proposing a revenue sharing formula to the National Assembly. By this proposal, 46% of the total revenue of the Federation was to go to the Federal Government; 30% to the states; 16% to the local governments, 10% to F.C.T Abuja and 6% as "special fund" But even before this bill could be passed into law by the National Assembly, the Federal Capital Territory, Abuja, was already enjoying its 1% derivation. The Federal Government was also unilaterally drawing large chunks of money from the Federation account for itself, for the funding of the judiciary and the N.N.P.C. and the servicing of external debts. All these practices, the Supreme Court declared, were unconstitutional. The Supreme Court further directed the Federal Government to pay in arrears all derivation funds, which it ought to have started paying from May 29th 1999, when the 1999 constitution came into force. Revenue from gas was also ordered to be part of derivation and the non- payment of derivation on capital gains tax and stamp duties was declared unconstitutional, null and void.

The net result of these fundamental changes in the revenue derivation and sharing formula of the Federation have considerably rubbed on the polity, heating it, as it were, to near explosion. The depleting of monies accruing to the Federal Government has led to three sharp reactions from that end. First, the Revenue Mobilisation Allocation and Fiscal Commission, RMAFC, has withdrawn its bill on revenue sharing from the National Assembly. Secondly, owing to serious financial squeeze at the National Assembly, the Senate, on 16/5/2002, passed a motion calling on the Presidency to approach the Supreme Court once again for a "stay of execution" of its judgment. The propriety of this motion shall be discussed hereinafter. The Federal Government has also ordered for the full commercialisation of the N.N.P.C., which it was hitherto funding.

From the South-South, reactions have been very sharp, with Akwa-Ibom State which is worst hit, taking the front roll. At a recent public gathering christened " Akwa Ibom Consultative Forum", prominent Akwa-Ibom indigenes, led by the Governor, Victor Attah, slammed the Supreme Court judgment and publicly withdrew support for the Obasanjo-led government. Also, legal and non-legal brains from the South-South, like Professor Itse Sagay, the Hon. Justice Atake (rtd.) Senator David Dafione, etc. have strongly criticised the Supreme Court decision, citing foreign decisions and treaties to which Nigeria is a signatory, in support of their contentions. With all these pressures, the Federal Government has announced that it will find a political solution to the outcome of the judgment, for which see the ThisDay of 20th May 2002.- Now, how should the Federal Government go about this?

There is no doubt that the April 5th, 2002 decision of the Supreme Court is a final decision which, by section 235 of the 1999 Constitution is final in the real sense of it.

Thus, fine prose or legal arguments submitted on the pages of newspapers, pointing how wrong the Supreme Court was in its decision, is neither here nor there. In the case of ' Ibero V. Obioha (1994) 1 SCNJ 44, after the Supreme Court had given a final judgment in a suit, the respondent who lost the appeal filed a motion asking the Court to review its said judgment and to "order the hearing of the appeal in this court or the rehearing of the appeal in the Court of Appeal or the retrial of the case itself". It was the contention of the applicant that the Supreme Court had erroneously failed to take notice of the two additional grounds of appeal filed by the respondent in his appeal to the Court of Appeal. Further, that the Supreme Court had acted beyond it powers to pronounce on the correctness vel non of the decision of the Divisional Officer's Court. The Supreme Court was, therefore, called upon to 'correct' those errors and overturn its judgment. The Supreme Court dismissed the application, saying that by section 215 of the 1979 Constitution which is in pari materia with section 235 of the l99 Constitution, its decisions are "final" in the real meaning of the word. Belgore, J.S.C., who read the lead judgment, held at page 53 thus:

"Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. The law may in future be amended to affect future issues on same subject, but for the case decided, that is the end of the matter" Emphasis mine.

From the above, the Supreme Court provided a way out of this current legal grid lock, that is, by the authorities concerned amending the law. Thus, instead of the Senate adopting a motion that the Supreme Court be approached for a stay of execution, a bill can emanate from either the National Assembly or the Executive, amending all the relevant sections of the 1999 Constitution and all other relevant laws the Supreme Court considered before reaching that decision, to reflect the mood of the South - South, the National Assembly and the Federal Executive. This is more so because a stay of execution can only be granted when there is a pending appeal in court, for which see Martins V. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75 and Mobil Oil V. Agadiagho (1988) 4 SCNJ 174. But there being no further right of appeal from a decision of the Supreme Court, it will be otiose to approach that court with just a motion for stay without an appeal.
 

The second way the government can wriggle itself out of this economic, political and constitutional logjam is by promulgating a law ad hominen-through the National Assembly, nullifying the Supreme Court judgment. Such a law which, should be comprehensive, should therefore, go ahead to define the revenue sharing formula as it affects all the component parts of the federation. Thus, the panicky measures of commercialising the NNPC or withdrawing the revenue sharing formula bill from the National Assembly should not arise. The best thing is to amend the bill in such a way that it will have a nullifying effect on some of the sore points of the Supreme Court decision. This was done in Nigeria before. In Lakanmi V. Attorney - General, Western Region (1970) 6 N. S. C. C. 143, the Supreme Court of Nigeria had held that the 1966 coup de'tat was not a revolution but an illegal hijack of power. This angered the then Federal Military Government, headed by General Yakubu Gowon, which then promulgated Decree No. 28 of 1973. By section 1 (2) thereof, the Decree nullified the Supreme Court judgment in Lakanmi's case. While Decree No. 28 ousted the Courts' jurisdiction of inquiring into why it was promulgated, the present National Assembly does not need to do that, as we are now in a democracy; but the same result would be achieved.
 

The Supreme Court confirmed, in a recent decision, the effect of Decree No. 28 on its decision in Lakanmi's case. In Attorney - General of the Federation V. Guardian Newspapers Ltd. & Ors. (1999) 5 SCNJ 324 at 347 - 348, Uwaifo, J. S. C., delivering the lead judgment of the Supreme Court, had this to say:

"The learned Solicitor- General has made copious reference to the decision of this Court in Lakanmi V. Attorney - General (West 1970) 6 N. S. C. C. 143 and Decree No. 28 of 1970 made to nullify it. He has relied on the effect of the said Decree which he says has been enacted in Decree No. 12 of 1994. Chief Williams has also quoted extensively from the decision in Lakanmi case. One cannot run away from the fact that the decision in Lakanmi's case was nullified by Decree No. 28 of 1970". Emphasis mine.

It must be noted that the framers of Decree No. 28 of 1970 were the relevant arm of the military government then, which was the Supreme Military Council. Under a democracy, as we are now, the National Assembly is the law-making organ of the government. Section 4 (2) of the 1999 constitution stipulates thus:

"The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution."
 

The National Assembly can, under items 1 and 39 of Part I of the Schedule and item I of Part II of the Schedule to the 1999 Constitution, make a law ensuring that there is "peace, order and good government" in Akwa-Ibom State or the Niger Delta and even the Federation itself as salaries are presently being owed, oil companies are crying for money, as none is coming from NNPC, etc. (by amending or annulling the offending portions of the Supreme Court judgment). The National Assembly should, as a matter of real national urgency, rely, apart from the decisions of the Supreme Court above, on the other reported case of A. R. C. O. N. V. Fassassi (1987) 3 NWLR (Pt. 59) 42 at 46, where Eso, J. S. C., provided this escape route:

"In the Supreme Court, the decision of that Court, in so far as-that case is concerned is final in all ages...it is final in the sense of real finality. It is final forever. Only a legislation ad hominen can alter it". Emphasis mine.
 

The third way out is for all the parties to the Supreme Court decision to sit down (as is being proposed by the Federal Government), find a solution thereto and settle amicably. This may sound awkward or even impossible, but then it has the sanction of the law. In Abbey V. Alex (1999) 11 & 12 SCNJ 234 at 246 - 247, Uwaifo, J. S. C., had this to say:

"--The power to settle or compromise 'at any stage of pending proceedings' extends even to that of compromising judgments in certain situations. This is so because under note 1 to para. 383 Halsbury's Laws of England (supra), it is remarked that proceedings remain pending until satisfaction of the judgment. For this opinion, the observation of Jessel M. R in Re Clagett's Estate, Fordham v. Clagett [1882l 20 Ch. D. 637 at 653 is there relied on. There, he stated inter alia:-

'A cause is said to be pending in a court of justice when any proceeding can be taken in it. . . If you can take any proceeding it is pending. 'Pending ' does not mean that it has not been tried. It may have been tried years ago. In fact, in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before, and which were still pending Sometimes, no doubt, they require a process which we call reviving... but nevertheless they were pending suits.... "

I think the emphasis should be that if a judgment remains not executed but can still be by the proper procedure being taken, then it might be said to be a step taken at any stage of a pending proceeding. In that sense and with that status, a judgment may be compromised by the parties to it. I can see nothing unusual or unlawful about this. - That was what in effect happened to the judgment in the consolidated Kalabari Native Courts suits No. 321/46 and No. 352/46 when the parties entered a compromise as per exhibit B". (Emphasis mine).

It can safely be concluded, therefore, that while the Supreme Court decision in the famed resource control suit is final, the Federal Government, if at all it is serious about finding a political solution thereto, has several legal and constitutional means of the doing so. And if that is to be done, it should speedily be so done, to avert a looming national calamity of immeasurable proportions. The Federal Executive and the National Assembly have both the knife and the yam; they can cut it anyhow they feel. But let it be fast.

June 2002