Constitutionalism is a means to an end; it refers to the
regularity of political life within a state by means of a constitution. As a
concept, constitutionalism means limited government i.e. a system of restrain
on both the ruler and the ruled constitutionalism asserts that there are
fundamental limits which must be observed in other relationship between the rulers and the ruled.
A court of law has many ways
of enforcing its judgments generally. In Government of
Gongola State V. Tukur (1989) 4 NWLR (Pt.l17) pg. 517 Nnaemeka-Agu, J.S.C.
considered the various methods of execution of judgments.
These
are:
i.
A
judgment for possession of land may be enforced by a writ of sequestration or a
committal order.
ii.
A
judgement for delivery of goods may be enforced by a writ of specific delivery
or restitution or their value, a writ of sequestration or writ of committal.
iii.
A
judgement ordering or restraining the doing of an act may be enforced by an
order of committal or writ of sequestration against the property of the
disobedient person.
Where in the enforcement of fundamental rights the court
awards damages in favour of a litigant, a proper method of enforcement is by
way of the writ of fieri facias.
Where the party condemned in damages is
an individual or non-government body, it is quite easy to enforce the same. But
where damages is payable by the State, there are problems in levying execution
against state property. Order V, Rules 5 Judgement (Enforcement) rules provides thus:
“Property in the custody or under the control of any public
officer in his official capacity shall be liable to attachment in execution of
a judgement with the consent of the Attorney- General and property in custodia legis shall be liable also to
attachment by leave of the court.
The problem is that the Attorney-General may view his
position as one in which his first
allegiance is to the executive rather than the government as a whole. He may
refuse to give his consent, in which case
the judgement creditor may seek a writ of mandamus to compel the performance of
the duty. Or where he does not refuse outright he could cause considerable
delay in issuing his consent. As a matter of practice, if one applies for his
consent his first action is to call on the erring public officer to pay up. It is only after
they refuse to pay that he issues his consent to the writ of attachment.
Another
useful method of enforcement is the issuance of a committal order arising from
contempt proceedings. Once again, it is easier to enforce the orderagainst
individuals asopposed to government
functionaries. The experience of Justice Yaya Jinadu is a case in point. It was
the case of Garba v Federal Civil
Commission. During the period when the case was pending in court, Mr.
Garba’s appointment was terminated by one Mr. John Oyegun, the then Permanent
Secretary, Ministry of Internal Affairs. Garba’s lawyer complained to the court
that the sack amounted to undue interference with the administration of
Justice. So a contempt application was filed against the said Mr. Oyegun. When the contempt proceedings came up
before the court, Mr. Oyegun refused to
appear. Despite series of adjournments,
the contemnor refused to appear or comply with the court order to withdraw the
offensive sack letter. The State counsel resorted to all sorts of tricks to
excuse the absence of his client by claiming that he could not locate the
contemnor. The court was unable to effect its orders either through its bailiffs or even Counsel representing the
contemnor. On the final adjourned date neither
the contemnor nor his counsel was in court. The contempt proceedings died a “natural”
death. His Lordship in a letter he forwarded to the Chairman, Advisory Judicial
Committee. On the matter, has this to say:
“I believe the Judiciary has an
important role to play in this country as it is the last hope of the common
man. The Judiciary has to be firm, fair and courageous and must not employ any
form of double standards. It is not right in my view to regard or treat the
courts of Justice as an extension of the Federal Ministry of Justice. I cannot
condone any attempt to destroy the judicial system in this country using me as scapegoat.”
The approach of Justice Jinadu is a way of bringing it home
to the functionaries of government that judges are not to be taken for a ride.
He paid a price so that other colleagues may be better placed in the
administration of justice. It might after all better if one does not lend its
weight to injustice than remain on a job which at the end of the day could only be sustained by integrity with the
generality of the people.
It is important than the courts should constantly strive to
ensure that their judgement are not
treated with levity or brought to ridicule through an exercise of arbitrary or
abuse of executive power.
The Supreme Court
in Federal Government Civil Service
Commission v Laoye would not allow destitution to be drawn in the
enforcement of judgements against the state or the individual. The court said
that:
“One aspect of our much vaunted equality before the law is
that all litigants be they private persons or government functionaries,
approach the seat of justice openly and without any inhibitions or handicap… In
the unequal combat between those who possess power and those on whom such power
bears, the courts primary duty is protection from the abuse of power”.
There is the need to protect the ordinary citizenry from an
over-zealous and protective Ministry of Justice and make it truly reflective of
its role. The Ministry of Justice properly so called must take the word
“Justice” more seriously and seek to pursue the interest of the individual and
the state and create a conducive balance between the various interests. In Attorney-General of the Federation v The
Nigerian Bar Association (Lagos and Ikeja) the Attorney-General sought to
restrain the legal practitioners of the Lagos and Ikeja branches from carrying
out their treats to boycott the courts. The legal practitioners impressed on
the State to respect judicial orders.
Honourable Justice Adeyinka on June 10 1992 granted an
interim injunction as prayed by the Attorney-General. However, on July 2, 1992
when the Judge gave a more detailed ruling the court set aside his earlier
order. His Lordship went on to chide the Attorney-General for being a party to
attempts to bring court orders to ridicule this lordship stated that
“for the Attorney-General to be a party to the ridicule and
disparagement of the court is reprehensible.” He added
“if citizen follow government’s bad example and refuse to
obey court orders, it will lead to not only the disruption of the due
administration of justice and the transition to civil rule programme, but also
to chaos, anarchy and ultimate dismemberment of the Federal Republic of Nigeria.
Also in the case of Dr.
Beko Ransome Kuti v President Ibrahim Babangida and Others, the plaintiff
sued the Federal Government seeking a declaration that his arrest and detention
was unlawful and claimed 15 million Naira as damages. Owolayi, J. hold that the
detention order issued in respect of the plaintiff under the hand of the Vice
President Consequent upon the illegal arrest of the applicant’s fundamental
rights. Of more fundamental and was a violation of the applicant’s fundamental
rights. Of more fundamental importance was
the posture of the judge as regards the enforcement of his orders.
He held that even if he had concluded
that the detention order was not defective, he would still have rejected it
along with the government’s counter affidavit because of the government’s
persistent refusal to obey the order of the court for the production of the applicant.
This bold assertion on the part of the judiciary is welcomed
and portends a good omen for the efforts at enforcing fundamental human rights
decisions. If the judiciary had merely folded its arms as if it had suffered a
technical knockout in a boxing duel, then it would have gone into slumber and
the death knell would begin. Judges must be bold and forthright in their views.
Cases on fundamental human rights must be treated with the dispatch which
proceedings under the Fundamental Rights (Enforcement Procedure) Rules 1979
envisage. Fundamental rights cases should not be listed like any other matter
but dealt with expeditiously. In this way, the courts would accord greater
respect to themselves, the law and the fundamental rights. A man who does not
respect himself cannot call on others to accord him the same respect. As
Justice Arthur T. Vanderbilt explained
“…it is in the courts
and not in the legislature that citizens primarily feel the keen, cutting edge
of the law. If they have respect for the work of the courts, their respect for
the law will survive the shortcomings of every other branch of government; but
if they lose respect for the work of the courts, their respect for the law and
order will vanish with it to the great detriment of the society”.
Another important step in judicial enforcement of its own
decisions is found in the case of Gloria
Mowarin v. Nigerian Army and others. In
that case my Lord, Honorable Justice Francis Owobiyi declared the
detention of the applicant as illegal and unconstitutional and quashed the
detention order. He took a rather ingenious approach to the issue without
offending the ouster clause in Decree No. 2 of 1984. The detention order was
expected to be signed by the Vice President, but the office was non- existent
when the Vice President purportedly signed the detention warrant. The state refused
to comply with the order of release of the detainee, but rather filed a notice
of appeal and sought a stay of execution. In his ruling on the application for
stay, his Lordship said inter-alia
“I have never known of any case in which the court has
ordered the release of a detainee under the Habeas
Corpus procedure or that of the Fundamental Rights (Enforcement Procedure)
Rules, 1979 and the detaining authority has lodged an appeal against the order
of release and asked for a stay of execution pending the determination of the
appeal lodged by it while not carrying out the order of court…. The conduct of
the Respondents/Applicants herein does not give much comfort as regards the
rule of law and it is nothing to write home about.
The Court then refused to grant the order for as it will not
be in consonance with the interest of justice and the cause of the rule of law.
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