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Executive, Legislature, Judiciary at daggers drawn over Lagos Magistrate Law

By Abdulwahab Abdulah

The recent ruling of a Lagos High court, suspending the new Lagos State Magistrate Court Law, 2009 pending the determination of a suit filed by a Lagos Lawyer, Mr Jiti Ogunye, has raised some constitutional issues on the doctrine of separation of powers among the three arms of government; the executive, the legislature and the judiciary. Apart, it has created some problems in the magistrate court system in the state.

Ogunye’s suit which is still pending before the state High Court is asking the court to among other things determine whether the state government through the Lagos State House of Assembly is empowered to make law guiding the operation and practice direction at the Magistrate court, popularly regarded as a ‘court of first instance’. The new law, when in operation will repeal the Magistrate Court Law, 2007.

Ogunye in his action, sought to nullify the whole or parts of the Lagos State Magistrate Court Law, 2009, on the ground that the provisions of the Law are in conflict with the provisions of the 1999 Constitution. In his motion, he sets 59 questions for determination, in addition to 66 reliefs from the court.

Joined as the defendants in the suit were the Attorney-General of Lagos State , the Speaker, Lagos State House of Assembly, the state House of Assembly, the Chief Judge of Lagos State, Justice Inumidun Akande and Justice Opeyemi Oke, the Chairman of the Implementation Committee of the new Law. In a 45-paragraph affidavit in support of the originating summons, Ogunye stated that he filed the action in order to preserve the rule of law, prevent the violation of the principle of the separation of power and protect the independence of the Judiciary.

The contentious Magistrate Court Law, 2009, was published as Law No. 14 under the Lagos State Government Notice No 51 in the Lagos State of Nigeria Official Gazette No. 40 of Vol. 42 after it was signed into law by the state Governor, Mr. Babatunde Fashola (SAN) last year.

Ogunye argued that he was not challenging the powers of Lagos state lawmakers and the executive arm of government to make or amend the Magistrate Court Law but contesting the validity of the product of exercise from that power. He argued the law was to whittle down the powers of the Lagos state judiciary, undermine its independence and usurp its powers.

The new law according to him, also abolishes the cadre and grade system in the Lagos State Magistracy, contrary to what obtains in all the other states of the federation. By this abolition, the vested legal right of many magistrates, who had risen through the ranks and who must have been nursing the ambition to be made High Court Judges in the state, once they diligently work their way up to the eminent position of a Chief Magistrate, has been adversely affected.

Ogunye, the Claimant in the suit averred that “the law is, thus, capable of diluting standards that have been carefully built over the past one decade of civil rule.” He argued  that “the actual or envisaged implementation (execution and enforcement) of the provisions of the Magistrate Court Law 2009 by the defendants, by virtue of its commencement, violate the provisions of the Constitution of the Federal Republic of Nigeria, 1999, including the principle of separation of powers and the doctrine of the independence of the judiciary on which the Constitution is predicated, and the provisions of the Magistrate Court Law 2009 are subversive of the rule of law and negate the orderly administration of justice in Lagos State.”

None of the Defendants filed their defence to the substantive suit until the issue of legal representations came up when the Lagos Chief Judge and the Attorney-General insisted on having separate legal representation, since the defendants were sued individually. The issue of legal representation of defendants became so contestable that the presiding Judge, Justice A. Opesanwo needed to deliver a ruling on it.

In his submissions, the state Attorney-General and Commissioner for Justice, Mr. Supo Sasore, SAN, represented by Messrs. Osipitan and Co. maintained that as the chief law officer of the state, he has the right to appear for all the defendants as a government. But the Lagos state judiciary who briefed another lawyer, Wale Adesokan chambers  in a conditional appearance argued that though the three arms of government swim together in the good administration of the state, there is still separation of powers, especially when the issue at stake affects them. Apart from this, it was argued that as an individuals who were sued by the claimant, they have the constitutional right to the counsel of their choice.

After arguments and counter arguments, the court ruled in favour of the state High Court and held that since the suit was filed with the defendants joined separately, they (the judges) have the constitutional rights to have their own counsel, while ordering an accelerated hearing of the suit.

Justice Opesanwo in her ruling held: “In consequence of the foregoing, it is reasonable conclusion that where the State, as a unit is sued, the Attorney-General can, further to his recognized powers in civil matters, defend and / or enter appearances as counsel on behalf of the State. But where the arms of Government are respectively sued, then even though the Attorney-General may still act as aforesaid, he can only do so, provided all the arms of Government share a common interest in the matter and certainly upon his consultation with the other arms of Government.

“It will indeed be preposterous to insist that each of the arms of Government, to which the Attorney-General does not belong, must apply to him and receive his consent before they can legitimately defend and instruct Counsel in civil matters to which they are parties.

“Any such interpretation will result in an absurdity and run against the principle of separation of powers and the independence of each arm of government. I must observe that no authority to which this court was referred is on all fours with the situation herein. “For avoidance of doubt, the application herein for change of counsel from Osipitan & Co to the Law firm of Messrs Uwensuyi Edosomwan &Co succeeds as regards the 1st to 3rd defendants (the A G, Lagos, Speaker, Lagos Assembly & the State Assembly) but fails as regards the 4th  and 5th defendants (Justices Akande & Opeyemi Oke ). Mr. Wale Adesokan of Wale Adesokan & Co herein continues to be recognised as counsel on record for the said 4th &5th defendants.”

Earlier, the court had granted an order of interlocutory restraining parties to maintain status quo pending the determination of  all applications and indeed the substantive suit. It also held that “all actions which may tantamount to implementing the law in issue i.e. Magistrate Court Law, 2009 are hereby suspended.” The court also ordered that “in order not to create a vacuum, the operative law in the mean time shall be the Magistrate Court Law, 2003 as amended, and that all Stakeholders shall abide the determination of the substantive suit.”

Meanwhile, the  Lagos State Attorney General and Commissioner for Justice,  Shasore, SAN, has appealed against the suspension of the Magistrate Court Law, 2009 by the court. The Attorney General in his Notice of Appeal filed by his lawyer,  Uwensuyi-Edosomwan, SAN,  is asking the Court of Appeal, Lagos Division for an order setting aside the ruling of the lower court suspending the operation of the law. The appellant is also asking for an order directing the Chief Judge of Lagos State to re-assign the case to another judge for hearing and determination.

The appellant stated in his grounds of appeal that the trial judge erred in law when she granted an order upon an oral application by the claimant and suspended a law validly made by the Lagos State House of Assembly without first testing the validity of the suit.

The Lagos AG is also contending in the appeal, that the trial judge erred in law when after suspending the Magistrate Court Law 2009 restored the Magistrate Court Law 2003, which has been repealed by the Lagos State government.
The interesting development in the case however, was the recent motion for joinder filed by the Nigerian Bar Association , NBA, Lagos chapter.

The lawyers faulted the suspension of Lagos Magistrate Court Law 2009 by Justice Aishat Opesanwo of the Lagos High Court. In a Motion on Notice  filed by its lawyer, Chief  Theodore Ezeobi, SAN, the NBA urged  the court to join the association  as an interested party in the ongoing suit.  In their application they claimed  that the suspension  of the Magistracy Court Law would affect the interest of its members. In a 12- paragraph affidavit in support of the Motion, the lawyers claimed  that the Lagos branch of the NBA was consulted in the making of the new Magistracy Court Law , insisting  that the suspension of the law had affected over 6,000 of its members that are practicing in the Magistrate courts.

He added that the Magistrate Court Law which the claimant (Ogunye) sought to nullify had liberated and made attractive options available for lawyers in Lagos state and that the order sought by the claimant would radically and negatively affect millions of their clients hence the need to join them as party in the suit.

Though, the issue before the court for determination was whether or not the new Magistracy law, 2009 violates the 1999 constitution, however, some other stakeholders, including the Magistrates on whose behalf the law was made were having their own reservations on the passage of the law by the State House of Assembly and the plan to  implement the law.

While some of them hailed the passage of the new law, some kicked against certain provisions of the law that allegedly prevent them from rising through the rank to become a High Court judge, unlike what was applicable before the advent of the new law.

Some of the Magistrates argued that the new law will rob them the automatic qualification of rising to the higher bench, especially, if they are going to take higher appointment outside the Lagos state judiciary, where the new law is not applicable. The practice was that those who attain the status of the Chief Magistrate were those considered for appointment into the bench of the state high court.

They also argued that though, they got some level of independence through the new law “from being overlord by the Chief Judge, we were however robbed of our rights to be under the eyes of the National Judicial Council as Judicial officers. They only regarded us as civil servants, not judicial officers like those at the higher bench.” they said. They also complained about their salaries and allowances, which they argued were not commensurate with their work and status as judicial officers.


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