Nigeria's Trials: Governors Win First Round
Correspondents in Lagos have however been quoted as saying that the Federal Military Government appears to be challenging the High Court's authority to hear the case and have expanded the tribunal's authority to include the period of the alleged crimes.
Even though the first two rounds of the legal battle have gone in favour of the governors, observers believe that the FMG is not likely to be swayed by any such legal arguments.
Like the government's attitude to the ban placed on the participation of lawyers by the Nigerian Bar Association in the proceedings of the Tribunal, the legal manoeuvres in court are expected to be ignored by the authorities and the decrees amended as and when the courts make their rulings.
The case for the three former UPN governors had re-opened at the Lagos High Court earlier last week. Chief Bola Ige of Oyo State, Chief Bisi Onabanjo of Ogun State and Chief Micheal Adekunle Ajasin of Ondo were seeking a court order to bar the special Military Tribunal from trying them on charges of corruption.
The three who have been in detention since the coup of December 31st, have been charged with helping their political party, the Unity Party of Nigeria to receive N2.8 million kickback from public contract funds.
They are represented by Mr G OK Ajayi the Attorney-General, Chike Ofodile argued that the Lagos High Court had no power to hear the case. His first contention was the validity of Decree No. 1, under which parts of the 1979 Constitution were suspended and modified could not be questioned in any court, by virtue of its fifth provision.
"By section 2(1) of Decree No. 1, the Federal Military Government became loaded with the powers to make laws for the country to secure peace, order and good government on any matter whatsoever.
"Pursuant to the powers of the Federal Military Government (FMG), this piece of legislation was promulgated and signed into law". Mr Ofodile said section 13(1) of the Recovery of Public Property Decree No. 3, under which the charge was brought, repeated the provisions of section 5 of Decree No. 1 which says that the decree could not be questioned in law court.
"Can this court then entertain this application?" he asked, and then answered the question. "The answer is in the negative."
He added: "The ouster provision of section 13(1) of Decree No. 3 precludes the applicants from questioning the legal capacity or power or competence to promulgate the aforesaid decree (decree No. 3) or to appoint the members of the tribunal authorized by the section."
Mr Ofodile said the detainees based their arguments on Section 33 of the amended Constitution "which happens to be part of Chapter 4 of the said constitution."
He added: "The ouster provision in section 13(1) of decree 3 has taken very good care of the complaints of bias and fair trial contained in section 33 of the Constitution."
"If anything done by the tribunal is in conflict with specific provisions of the Decree, it will be a matter for the Supreme Military Council (SMC) to decide." But Mr Ajayi argued that the detainees were not challenging the competence of the Federal Government to promulgate Decree No. 3 but the operation of the Decree. "What has given the government power to pass the Decree is what is called principle of revolutionary legality. That is a recognised source of powers to make laws."
But Mr Ajayi's grouse is that "the tribunal is not obeying Decree No. 3" which, he said, was not binding on it.
Mr Ajayi contended that while Decree No.3 had legal effect from December 31st, last year, the former governors were alleged to have committed the offence last July.
"The scope of their jurisdiction is specifically set out in section 6 of the decree. The tribunal must comply with the provisions of the decree", he said.
Mr Ajayi argued further that "by reason of bias and interest" the members of the tribunal are disqualified by the general principles of natural justice to adjudicate in this tribunal.
"The appeal we have made is one of your lordship's inherent jurisdiction a a superior court of law. That jurisdiction was inherited from the High Court of Justice in England through the statutory provisions of the High Court of Lagos State."
"Section 19 of the High Court of Lagos State Act spells out the exercise of this jurisdiction to issue order of prohibition."
He said the Federal Military Government had not taken away the "inherent power" of the court of law. "I hope they will not try to" he said.
Mr Ajayi argued too, that if the tribunal, which came into being on December 31 last year, wanted to try an alleged offence committed last July, "then they can as well say they can try a minister who served in 1962."
He added: "There is no difference between charging an officer who served in 1972 and the one who served in 1979."
