On December 2, 2010, an Abuja High Court declined to compel the Peoples Democratic Party (PDP) to enforce its controversial zoning arrangement and struck out the suit seeking also to stop the incumbent President, Dr Goodluck Jonathan from contesting for the same office on the platform of the Party in the 2011 presidential elections.
The plaintiff, Alhaji Sani Aminu Dutsima, brought this action against the PDP and its National Chairman, Chief Okwesilieze Nwodo before the high court, after the PDP refused to implement the zoning arrangement as contained in Article 7.2 (c) of the Party's Constitution. He contended amongst others, that the National Chairman of the Party had championed the violation of the Party's constitution in order to pave way for President Jonathan who is a Southerner to contest for the president of the country on the platform of the party contrary to the provision of Article 7.2 (c) of the Party's Constitution on Zoning. He argued further that under the zoning arrangement agreed upon by members and enshrined in the Party's Constitution, the Northern region of the country still had till 2015 to relinquish presidential power to other regions. He therefore, prayed the Court to enforce the agreement and the provisions of Article 7.2 (c) the Party's Constitution on zoning principle in relation to the power rotation.
In his ruling, the Chief Judge of the Federal Capital Territory, Justice Lawal Hassan Gunmi, held that although Article 7.2 (c) of the PDP constitution, 2009, as amended, recognized the principle of zoning and rotation of party and elective offices, but "the power to nominate and sponsor candidates to an election is vested in a political party and the exercise of this right is the domestic affair of the party." The Court in dismissing the case further held that the provision of the party's constitution sought to be enforced in Court dwelt on a political question that was non-justiciable, noting (emphasis added) however, that the onus was on the party to respect the provisions of the said Article 7.2(c) because it was subsisting and binding on the party, its organs and members.
That was a remarkable and good decision. However, I have a slight difficulty with the obiter dictum where the court, while dismissing the case on the ground of non-justiciability and political question appealed to the conscience of the Party by admonishing the PDP to respect the provisions of Article7.2(c) because it was subsisting and binding on the party, its organs and members. The question is: can Article7.2(c) of the Party's constitution really be said to have a binding effect when it has been held to be non- justiciable and the court washed its hand off it? Should the members of the party resort to self-help in order to enforce the article since no Court of law is well equipped to enforce compliance? It is trite that where there is no remedy, there is no right.
Be that as it may, I consider these comments by the Honorable Chief Judge to be mere obiter dictum that could not have formed part of his legal reasoning in reaching the decision because with or without those comments, he would still have arrived at the same conclusion given the nature and peculiarity of the case. In most cases, obiter dicta are capable of creating confusion in the minds of the people who are unable to understand the delicate line between the ratio decidendi which is the fundamental legal principle upon which the decision in a specific case is based and obiter dicta which consists of words of an opinion entirely unnecessary for the decision of the case. In Edmonton v Loval, Justice Lee of the Court of Queen's Bench adopted these words from Halsbury: "The underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision.....The concrete decision alone is biding between the parties to it". See Edmonton v Lovat Tunnel Equipment 82 Alta. L.R. (3d) 187; also at 2000 CarswellAlta 332 and 262 AR 236.
Since Article Article7.2(c) of the PDP's constitution is biding in honor (morally) only and has no force of law, it can be said to be part of the normative natural law, a gentleman's agreement of a sort, inserted into the body of the PDP constitution as a prescription for the behavior of the party in relation to power sharing. In the early stages of jurisprudence, there was no discernible difference between law and moral but early scholars were quick enough to distinguish between both even though they have some areas of correlation. In today's context therefore, the definitions of both are quite distinct and may not be used interchangeably. In other words, what is actually legal and enforceable is different from what ought to be legal (morally right) and appeals only to the conscience and moral values. Article Article7.2(c) has a coloration of natural law and moral agreement and the fact that it was inserted into the PDP's constitution does not make it legally binding and justiciable especially, if it is inconsistent with the provision of the normative positive law (the Nigerian constitution) and law proper as opposed to moral laws. It is neither permissible for a court to nourish the substance of normative natural law with the power of normative positive law nor acceptable to give normative natural law a coloration of normative positive law without committing a judicial sacrilege.
There is a general perception particularly amongst non- lawyers about the universality of the jurisdiction of courts and that their conceivable limitations to the wide discretionary powers of courts are those either directly imposed by the enabling law or the constitution or by the court's rules of practice and procedure which may define the threshold and upper limit of the scope of their jurisdiction.
The common belief also is that the courts will provide relief for every wrongful act. Indeed, every law student in their first year in college would have heard the often cited legal maxim of the late erudite scholar, Prof. Prosser: "For Every Wrong, the Law Provides a Remedy" (Ubi jus ibi remedium) and there must always be an available forum for the adjudication of all complaints or petitions.
However, it must be emphasized here that apart from the fact that the courts must have jurisdiction over the dispute they are called upon to adjudicate, another very germane requirement is that there must be an actual dispute or controversy between the parties over their legal rights that must not only be justiciable at the time of the conflict, but must not also have been mooted when such dispute is brought before the court for adjudication. In addition, such disputes must be apposite for judicial intervention and be capable of being resolved by the Courts.
Political Question And Justiciablity: Two Sides Of A Coin (http://www.saharareporters.com/article/political-question-and-justiciablity-two-sides-coin)