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EFFECT OF OUSTER CLAUSES ON THE RIGHT OF ACCESS TO COURT IN NIGERIA

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EFFECT OF OUSTER CLAUSES ON THE RIGHT OF ACCESS TO COURT IN NIGERIA

TABLE OF CONTENTS

PRELIMINARY PAGES

  1. Certification
  2. Dedication
  • Acknowledgements
  1. Table of Contents
  2. Table of Statutes
  3. Table of Abbreviations
  • Abstract

CHAPTER ONE:         INTRODUCTION

  • Background to the study
  • Statement of the problem
  • Objective of the study
  • Significance of the study
  • Scope of study
  • Literature Review
  • Methodology
  • Definition of terms

CHAPTER TWO:        HISTORY AND JUSTIFICATION OF OUSTER CLAUSES

2.1     History of Ouster Clauses

2.2     Classification and Types of Ouster Clauses

2.3     Justification for Ouster Clauses

CHAPTER THREE:    OPERATION OF OUSTER CLAUSES IN NIGERIA

3.1     Operation of Ouster clauses in Nigeria

3.2     Ouster Clauses under Military era

3.3     Ouster Clauses under the democratic governments.

CHAPTER FOUR:       THE EFFECT OF OUSTER CLAUSES ON THE RIGHT OF ACCESS TO COURT IN NIGERIA

4.1     The effect of Ouster Clauses on the Right of Access to Court in Nigeria

CHAPTER FIVE:        SUMMARY, CONCLUSION AND RECOMMENDATION

  • Summary
  • Conclusion
  • Recommendation

Bibliography

 

 

TABLE OF STATUTES

Arbitration and Conciliation Act Cap 19 LFN 1990

Chiefs Law, Cap 37, Laws of Bendel State of Nigeria, 1976

Constitution of the Federal Republic of Nigeria 1999 as amended

Diplomatic Immunities and Privilege Act Cap. 99 LFN 1990

Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 1984

Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970

Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994.

Interpretation Act 1964 Cap. I28 LFN 2004

Land use Act Cap L5 LFN 2004

Legislative Powers and Privileges Act Cap. L12 LFN, 2004

Limitation Law of Rivers State. Laws of Rivers State 1990.

Military Government (Supremacy and Enforcement of Powers) Decree No. 13 1984

NUPENG and PENGASSIN (Dissolution of Executive Councils). Decrees No. 9 1994

Public Officers and other persons (Investigation of Assets) Edict No. 5 of 1967

State Security (Detention of Persons) Decree No. 2 (1984)

 

 

TABLE OF CASES

A G Federation v. Guardian Newspapers Ltd (1999) 5 SC (Pt 111) 59 at 213

A.G. Abia State v. A.G Federation (2003) 4 NWLR (pt 809) 124.

Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228.

Adamu v A.G. Bendel State (1982) 3 NCLR at 676.

Agbaje v Commissioner of Police (1969) 1 NMLR 137

Anisimic Ltd v Foreign Compensation Commission and Anor, (1969)) 1 All ER 208

Balarabe Musa v. Auta Hamza &Others (1982) 3 NCLR.229  C.A

Chief Enyi Abaribe v The Speaker Abia State House of Assembly and Ors. (2002) 14 NWLR pt. 788 at 466.

Chief T. Adebayo Doherty v Sir AbubakarTafawa Balewa and others (1961) NSCC 248.

Chief Utuedor Uti and Six Others v Jacob Umurhurtu Onoyivwe and five others ((1991) 1 SCNJ 25

Chikezie Onyeanusi v. Miscellaneous Offences Tribunal Suit No: SC.49/1996

Council of Civil Service Unions v. Minister for the Civil Service [1983] UKHL 6,

Dapialong v Dariye  (2007) 8 NWLR pt. 1036 239

 

Ekpeyong v Umana (2007) 8 NWLR PT 1036 at 289.

Eshevire v. British Caledonian Airways Ltd. [1990] 7 NWLR (pt. 163) 507 at pp. 519-520.

Executive Governor of Kwara State v. Lawal, (2005) 20 WNR 679

Fawehinmi v IGP (2002) 7 NWLR pt. 767 at 606

Governor of Oyo State and Others v Oba Ololade Folayan (1995) 9SCNJ 50 at 80

Guardian Newspapers Ltd &Ors v Attorney General of the Federation & Anor. (1995) 5 NWLR at 703: ICHRL 36

Inakoju v Adeleke (2007) 4 NWLR pt 1025 423                                                                         

Jack v. University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 865) 208                            

Jideonwo & ors v Governor of Bendel State (1981) 1 NCLR at 4

Jimoh v Olawoye (2003 10 NWLR PT 828 at 307

Lakanmi & ors v A. G. Western Region (1971) UILR 201

Miscellaneous Offences Tribunal v. Okoroafor (2001) 9 – 10 SC 92 at 114

Nwosu v Imo State Environmental Sanitation Authority and Others, (1990) 2 NWLR 688.

Olubunmi Okogie v A.G. Lagos State

Onuoha v Okafor (1985) 6 NCLR 495.

  1. v Ludlow Ex-parte Barnsley Corp. (1947) KB 12, 639
  2. v Medical Appeal Tribunal, ex parte Gilmore (1957) 1 QB 574 at 586
  3. v Secretary for the Environment ex parte Ostler (1972)

Re Mohammed Olayori Unreported suit no M/196/9 of 17th November, 1969Salami Olaniyi v Gbadamosi Aroyehun and others (1991) 1 SCNJ 25.

The Registered Trustees of the Constitutional Rights Project (CRP) v. The President of the Federal  Republic of Nigeria and 2 Ors, Suit No. M/102/93.

Uwaifo v A.G. Bendel State (1982) 7 SC 124.

TABLE OF ABBREVIATIONS

AG                              Attorney General

All ER            All England Report

CRP                            Constitutional Rights Project

NCLR                         Nigerian Constitutional Law Report

NMLR                        Nigerian Monthly Law Report

NSCC                         Nigerian Supreme Court Cases

NUPENG                   National Union of Petroleum and Natural Gas Workers

NWLR                        Nigerian Weekly Law Report

Op.Cit.                        in the work quoted.

  1. Page

PENGASSIN              Petroleum and Natural Gas Association of Senior Staff of Nigeria

QB                              Queen’s Bench

SC                               Supreme Court

SCNJ                          Supreme Court of Nigeria Judgment

UILR                           University of Ibadan Law Report

UKHL             United Kingdom House of Lords

WNR                          Western Nigeria Report

 

 

ABSTRACT

It is said that power corrupts and absolute power corrupts absolutely. This widely acclaimed assertion led to the inclusion of means of checks and balances on powers exercisable by organs of government to forestall abuse. Although it is a trite principle of law as practiced in modern democracies that the powers of government be exercised by different organs to ensure effectiveness and avoid arbitrary use, this has not deterred organs of government from acting ultra vires. The concept of ouster clause is such that breaches the constitutional rule of separation of powers. By enacting ouster clauses into laws, the enacting body breaches the provisions of the constitution which deprives citizens who may be injured as a result of such provisions from approaching the court for redress. A situation as this is clearly anti-human right because the plenitude of rights without a means of enforcement is in its totality a wasteful venture. It is on this note that this work examines the nature and operation of ouster clause provisions in Nigeria in both past and present dispensations and the effect it has on the right of a citizen to court. The work comprises of five chapters. The first Chapter focuses on the general introduction, the second Chapter deals with history, types and justification of ouster clause, Chapter three will center on the operation of ouster clauses in Nigeria. Chapter four will focus on the main issue bothering on the effect of ouster clause on the right of access to court while Chapter five embodies summary conclusion and recommendation.

 

 

CHAPTER ONE

1.1     Background to the Study

To make for a true democratic system of government, there must at all times in governance exist and coexist the three tiers of government;[1] exercising the law making, enforcement and adjudicatory functions separately without one interfering on the powers and functions of the other.[2] From the above, it becomes inimical to the liberty, freedom and fundamental rights of citizens if power is concentrated in just one tier of government.[3] This is so because they are such provisions that take away the powers which the court had to hear and determine matters brought before them. This is usually done by promulgating executive military decrees or legislative enactments. The ordinary implication of this is that once an ouster clause provision is inserted into a law, it runs contrary to the doctrine of separation of powers.

The executive of a state governs according to a framework of general rules in society established by the legislature, and the judiciary ensures that the executive acts within the confines of these rules through judicial review.[4] In general, under both constitutional and administrative law, the courts possess supervisory jurisdiction over the exercise of executive power. When carrying out judicial review of administrative actions, the court scrutinizes the legality and propriety of an act or decision made by public authorities.[5] In jurisdictions which have a written constitution, the courts also assess the constitutionality of legislation, executive actions and governmental policies. Therefore, part of the role of the judiciary is to ensure that public authorities act lawfully and to serve as a check and balance on the government’s power.[6]

The rational for this doctrine is to promote efficiency in governance by precluding the exercise of arbitrary powers by all the arms of government and thus preventing institutional frictions. So the separation is to avoid a tyrannical state of affairs; that is, a case where one man makes laws, executes it and at the same time, determines the rights of others under the same law. It is also an obvious fact that this concept of ouster clauses offends the principles and rules of natural justice and the rule of law respectively. These are the guiding principles that guarantee the rights of the citizenry; most important amongst them which is the right to gain access to the courts to enable them ventilate their grievances within legal confines whenever the need arises. It is within this context that the work examines the extent to which ouster clauses exist and operate under the Nigerian Law.

1.2     Statement of the Problem

Ouster clause provisions given the nature of their operation do not just stripe the courts off their powers to hear and determine issues. It also deprives citizens’ access to court. A situation which has the propensity of snowballing into a state of anarchy and a total breakdown of law and order. This is the reason for the research. It is within this context that this work seeks to examine situations of ouster clauses aimed at denying citizens in Nigeria their rights and proffer solution if these rights must be guaranteed. In line with this, the work will seek to answer the following questions:

  1. In the light of a democratic system, what is the validity of ouster clauses?
  2. How does the citizen benefit from ouster clause provision?

1.3     Objective of the Study

Since the research is aimed basically at joining the already existing materials to call for a discontinuance of the use of ouster clauses, it will attempt an examination of the extent to which it exist under the Nigerian Legal System and to proffer solution to aid the removal of it.

In a bid to achieve this, the work is going to take particular interest;

  1. To examine the nature of ouster clause in Nigeria.
  2. To investigate the extent to which it exists under the Nigerian law.
  3. To examine the extent to which it impedes on the right of access to court where they exist.
  4. Proffer solution on the need to discontinue its existence.

1.4     Significance of the Study

The study firstly will add to the wealth of literatures existing in this subject matter of law for educative purposes. However, the work will be more valuable to lawmakers and members of the bench. The reason is that the birth and death of ouster clauses starts and ends with these two arms of government. While it is in the place of the legislators to enact ouster provisions, the interpretation is the duty of the judiciary. It is in their place to effect the needed change in respect of ouster clauses. If they understand the effect from the humanitarian point of view, probably, they will consider a new and better approach to end this factor militating against the actualization and sustenance of human rights.

1.5     Scope of the Study

This work will span through the operation of ouster clauses during the various military regimes in Nigerian and the present democratic dispensation. This will involve an examination of specific cases where the court had interpreted the existence of operation of ouster clauses.

1.6     Literature Review

Peculiar to the research is the fact that due to the nature of its effect on democracy and constitutionalism vis-à-vis the breach of the rule of law which it occasions not forgetting most importantly its consequences, various authors even of different specialties have deemed it necessary at one point or the other to lend their views and opinions in print to this all-important subject. Prominent among them are Professor Ben Nwabueze, J. A. Dada, Abdulfatai Sambo, M. O. Alabi, Gani Fawehinmi and so many others.

Alabi in an article entitled “The Supreme Court in the Nigerian Political System[7] proffered a definition of ouster clause that tallies with the generality of opinions as regarding its meaning. This he did while tracing the operation of the apex court of Nigeria from the period of 1963 to 1997. He saw ouster clause as provisions in the statutes that take away or purport to take away the jurisdiction of a competent court of law. It denies the court the ability to make any meaningful contribution with respect to a particular matter brought before the court. He merely touched on ouster clauses in passing giving the period in review and judicial pronouncements during the military era because there was no way he could not discuss effectively the activities of the supreme court between that period without considering the locus classicus case of Lakanmi v A. G. Western Nigeria.[8] Sambo in his own opinion in an article entitled; “Ouster Clauses, Judicial Review and Good Governance: An Expository Study of the Experience in Nigeria and Malaysia[9] carried out a critical study of the operation of ouster clauses within the Nigeria and Malaysia. He examined some statutory provisions embodying ouster clauses. In course of his research, he added that it in fact, seeks to deny the litigant of any judicial assistance in respect of the matter brought before it. Beside other statutes, he took inventory into constitution ouster provisions and how such provisions impede good governance. He went further by stating that ouster provisions are a weapon to curtail the jurisdiction of the court by rendering a matter to be non-justiciable before the court and the clause may sometimes confer the determination of such disputes to the legislature or executive or any other body. He concluded such clauses as highly undemocratic and unconstitutional as the Constitution itself precludes the legislature from enacting any ouster clause.[10] And finally recommended that it is high time that the countries under review[11] amended its ouster provisions to allow the court play a meaningful role in ensuring good governance and sustainable development in matters brought before it. Generally he adopted a holistic approach to the study on ouster clause.

Dada from a humanitarian approach in his article titled; “Impediments to Human Rights Protection in Nigeria.”[12] He classified ouster clauses as one of the impediments to human right protections in Nigeria as it denies citizens the access to justice when the court’s jurisdiction is ousted. From his own perspective, he saw Exclusion of courts’ jurisdiction by successive military administrations constituted a formidable problem to meaningful enjoyment of human rights in Nigeria during the military era. This he said in view of the State Security (Detention of Persons)[13] which ousted the jurisdiction of the court to inquire into the where about of a person detained.[14] Specifically dealing with the human rights constitutionally guaranteed, the Decree provided in clear and unequivocal language that:

“the question whether any provision of Chapter iv of the Constitution has been or is being or would be contravened by anything done or proposed to be done in pursuance of any Decree or an Edict shall not be inquired into by any court of law and accordingly no provisions of the constitution shall apply in respect of any such question”.[15]

He continued and asserted that by such provisions, the courts are precluded from inquiring into the legality or otherwise of any power exercised pursuant thereto, even if an infraction of the human rights of the citizen has occurred. His contribution although abridged is highly valuable primarily because it borders on a vital aspect of ouster clause which is that it impedes human rights protection. While concluding, he attributed the reason for such impediments to human right protection as ouster clause as due to lack of genuine and practical commitment on the part of the government to ensure meaningful enjoyment of these rights. Umoh’s view about ouster clauses is no different from Dada’s[16] opinion. They both agreed that it impedes the full realization and actualization of the plenitude of human rights. In an article titled; “Human Rights in Nigeria: Impediments to Realization[17] he in the same vein as previous authors pocited that ouster of court provisions like the ones experienced during the military era reduced the ambit of human rights to vanishing point.

Nwabueze in his 1989 Guardian lecture titled; “Our Match to Constitutional Democracy”[18] and subsequently in his book “Military Rule and Constitutionalism”[19] asserted that the legal effect of ouster clauses is that it effectively ousts the power of judicial review, however he opined that such clauses are in clear contradiction with the principles of the rule of law which is in other words akin to the separation of governmental powers and functions in the constitution.[20] He arrived at this conclusion when he accessed the activities of the military government and the concept of constitutionalism. This is so because, when the legislative arm of government enacts laws that oust the court’s jurisdiction, they go ultra vires their powers as provided in the constitution and this, the principle of rule of law does not encourage. This notwithstanding he justified the temporal ouster clauses in the form of immunity clause under Section 308 of the constitution by arguing that it was to protect the majesty and dignity of the Nation as symbolized by its head. He said:

 ”To drag an incumbent President to court and expose him to the process of examination and cross-examination cannot but degrade the office”.[21]

Famous amongst writers in this area is Fawehinmi probably because he was a human right activist and was famous for engaging the government in legal battles. In his article; “Denial for Justice through Ouster of Courts’ Jurisdiction in Nigeria[22] which featured a compendium of the entire ouster clause provisions during the pendency of the military regimes. In light of this, he averred that “there is no substitute for the Rule of Law where each department  of  government  is  allowed  to  function  without  a  fundamental interference  by  any  of  the  3  in  the  performance  of  the  others’  fundamental  duties  and  functions.   In  most  instances,  the  whole  concept  of  ouster  in  Nigeria  is  to  protect  the  illegalities,  the  mis-governance,  the  corruption,  the  general  misdeeds including  immoralities  of  those  who  hold  political  and  executive  powers  particularly in a Military dictatorship.”[23] He went further by stating that “I have never found one single ouster of Court’s jurisdiction in any  provision  of  the  Nigerian  Law  which  is  aimed  at  protecting  the interest  and  rights  of  the  generality  of  the  people.[24] When leaders commit crimes, their criminal proclivity is shielded from the glare of judicial investigation. When the masses or the common people commit crimes, they are dragged to Court with the age-worm cliché, ‘the law must take its course[25] but the cause and course of   the law are obstructed by ouster provisions when leaders commit crimes.”[26] This he noted in light of immunity clause as provided in section 308 of the constitution.[27] To him the gravity of the situation is not fully revealed by the sheer number of Ouster Decrees. The contents of some of these Decrees not only render the Judiciary impotent, the Rule of   Law prostrate and the citizenry hopeless and helpless, but as already noted, they turn the Military Regime into Hobbes’ dreaded Leviathan. Such that even Anthony in his undergraduate thesis: “Ouster Clauses: A thorn in the flesh of the law”[28] where he ventured into a study of ouster clauses in Nigeria vis-à-vis the doctrine of separation of powers and rule of law, concluded that ouster clauses are a thorn in the flesh of the law.

However quite varying from the approach adopted by preceding authors on this subject matter, this research work will not just venture into a discourse on the subject, but will place more emphasis on the deprivatory effect it occasions on the access to court. Most pertinently it will nonetheless consider the unavoidable eventualities that such deprivations will occasion in the society. The rationale for adopting the discussional approach is to birth a different conceptual thought in the minds of the authorities that churn out these provisions perhaps if they begin to see it more from the angle of its consequences on the society, probably that will bring about discontinuance of it.

1.7     Methodology

In sourcing for materials for this work, the law library was of immense help in sourcing for materials as it availed me a variety of opinions and arguments as contained in both foreign books and books written by Nigerian authors. Also given the computer age, it is no doubt that the internet facility was in no small way helpful as there were plethora of materials that came handy as online articles.

1.8     Definition of Terms

Ouster Clause – This term has been accorded several and varying meaning by different authors and has such made no room for a universally acceptable definition but all tend to arrive at a similar meaning. The Oxford Dictionary of Law[29] defines it as the exclusion of judicial proceedings in respect of any dispute. It is a provision or law, which excludes the power of court to entertain a matter and decide it.[30] Therefore, ouster clause also known as finality, exclusion or conclusive clause may be defined as the means by which the Executive or the Legislative arm of Government ousts the intervention of the courts against any complaints made against its abuse of power by the citizenry. Alabi[31] saw ouster clause as provisions in the statutes that take away or purport to take away the jurisdiction of a competent court of law. It denies the court the ability to make any meaningful contribution with respect to a particular matter brought before the court. What this means is that the executive takes the liberty to vest absolute powers in itself, by eroding the supervisory powers of the judiciary over it. Any clause however short it may be, inserted into a statute to shield the executive or the legislative as the case may be from time to time from the jurisdiction of the courts is simply an ouster clause.[32]

[1] Baron de Montesquieu. The spirit of law-book XI (1949) chapter 6 cited in Akinfolarin Akinyemi in The Concept of Ouster Clause in the Nigerian Legal System: A Critical Appraisal. http://walexybtg.blog.com/the-concept-of-ouster-clause-in-the-nigerian-legal-system/a-critical-approach//html Accessed on 2 May, 2015

[2] A.V Dicey. The law of constitution 1886. London 10th ed. Pg 202. Cited in Akinfolarin Op.cit

[3] See A.G;Abia State v. A.G Federation (2003) 4 NWLR (pt 809) 124.

[4] Peter Leyland; Gordon Anthony: “Introduction, Theory and History”, Textbook on Administrative Law (2009) (6th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 1–16 at 5.

[5] Council of Civil Service Unions v. Minister for the Civil Service[1983] UKHL 6, [1985] A.C. 374 at 410, House of Lords (UK)

[6] Peter Leyland; Gordon Anthony: “Express and Implied Limits on Judicial Review: Ouster and Time Limit Clauses, the Prerogative Power, Public Interest Immunity”, Textbook on Administrative Law (2009) (6th ed.), Oxford; New York, N.Y.: Oxford University Press, pp. 392 Archived from the original on 10 May 2013.

[7] Alabi M.O. A., The Supreme Court in the Nigerian Political System 1963-1997, Demyax Press Ltd, Nigeria, 2002 p. 244.

[8]  (1971)1 UILR at 201

[9] Abdulfatai O. Sambo, Abdulkadir B. Abdulkadir: Ouster Clauses, Judicial Review and Good Governance: An Expository Study of the Experience In Nigeria and Malaysia. Ontario International Development Agency international Journal Sustainable Development. http://www.ssrn.com/link/OIDA-Intl-Journal-Sustainable-Dev.html Accessed on 31st May 2015.

[10] Section 4(8) CFRN 1999 as amended.

[11]  i.e. Nigeria and Malaysia.

[12] J. A. Dada: Impediments to Human Rights Protection in Nigeria. Annual Survey of international & Company Law [Vol. XVIII p. 12-13.

[13] Decree No. 2 (1984)

[14] Section 4(1) of the notorious State Security (Detention of Persons) Decree No. 2 (1984) provides that “no suit or other legal proceedings shall lie against any person for anything done or intended to be done in pursuance of this Decree.”

[15] Military Government (Supremacy and Enforcement of Powers) Decree No. 13 § 1(2)(b)(i) (1984) (Nigeria).

[16] Dada Op.cit

[17] P. U Umoh, Human Rights in Nigeria: Impediments to Realization, 2 Univ. Uyo Law Journal 41, 46 (1988).

[18] Prof. Ben Nwabueze, “Our Match to Constitutional Democracy” Delivered on 24th July 1989. Published in Law & Practice Special Edition, August 1989, pp. 10 – 11.

[19] Prof. Ben Nwabueze Military Rule and Constitutionalism. Spectrum Books, 1992, pp. 14; 20 – 21

[20] Section 4, 5 and 6 CFRN 1999 as amended.

[21] Prof. Ben Nwabueze quoted in Akinfolarin Akinyemi: The Concept of Ouster Clause in the Nigerian Legal System: A Critical Appraisal. <http://walexybtg.blog.com/the-concept-of-ouster-clause-in-the-nigerian-legal-system/a-critical-approach//html> Accessed on 2nd May 2015.

[22] Gani Fawehinmi: Denial for Justice through Ouster of Courts’ Jurisdiction in Nigeria. p. 11 – 12. Quoted in Akinfolarin Akinyemi: The Concept of Ouster Clause in the Nigerian Legal System: A Critical Appraisal. <http://walexybtg.blog.com/the-concept-of-ouster-clause-in-the-nigerian-legal-system/a-critical-approach//html>  Accessed on 2nd May 2015

[23] Fawehinmi Op.cit

[24] Though this is completely true because the view was considered in light of military ouster clauses.

[25] Emphasis mine.

[26] Ibid.

[27] i.e. 1999 Constitution.

[28] Obi, Anthony Chibuzor. Ouster Clauses: A thorn in the flesh of the law. 1999. LL.B thesis. University of Calabar Project Library.

[29] 6th Edition

[30]Uwaifo v A.G. Bendel State (1982) 7 SC 124.

[31] Alabi M.O. A., The Supreme Court in the Nigerian Political System 1963-1997, Demyax Press Ltd, Nigeria, 2002, at 244.

[32] L.B Curzon, Dictionary of law. Financial Times Pitman Publishing (5th ed.) 1998.