Court Voids NHRC Report Indicting Osunbor for Electoral Offences

A Federal High Court sitting in Abuja, has declared null and void, a Report by the National Human Rights Commission indicting Professor (Senator) Oserhemen Osunbor for electoral offences and forwarding his name for prosecution.

Justice Ijeoma Ojukwu, in her judgement delivered on December 15, 2017, also declared that the Report titled “An Independent Review of Evidence of Gross Violations of Rights to Participate in Government, to Public Service and Through the Election Petition Process in Nigeria 2007 and 2011”, violates the fundamental right to fair hearing of the plaintiff as guaranteed under Section 36 of the Constitution.

The Court also restrained the defendant (National Human Rights Commission), her agents and privies, from further circulating or retaining the said Report in her website.

The National Human Rights Commission had reviewed the judgement of the Edo State Governorship Election Petition Tribunal given in 2008, and came up with a Report, which indicted some people including the plaintiff, Professor Osunbor for electoral offences.

In carrying out the Review of the Tribunal’s judgement, the Commission set up the Technical Working Group headed by Professor Nsongurua Johnsondombana .

The Commission went further to come up with a Report that recommended the indicted people, including the plaintiff, to the Attorney-General of the Federation for prosecution.

Professor Osunbor however challenged the action of the National Human Rights Commission (NHRC), asking the court to determine whether by the combined provisions of Section 5 and 6 of the National Human Rights Commission Act, Section 214 of the 1999 Constitution, the defendant (NHRC) has the power to investigate him for electoral offences as stipulated in Section 214 to 139 of the Electoral Act, 2006, indict him for electoral crimes and forward his name to the Attorney-General of the Federation for prosecution.

The plaintiff through an originating summons filed by his lawyer, Mr. Omoruyi Omonuwa, SAN, also asked the court to determine whether the defendant in exercise of its powers under Section 5 and 6 of the National Human Rights Commission Act and Section 1(1) and 1(3) of the 1999 Constitution, is not bound by the extant provisions of Section 36 of the 1999 Constitution and the rules of Natural Justice entrenched therein.

Professor Osunbor also prayed the Court to determine whether the defendant with the said Report of February 2014, is not in violation of his fundamental rights to fair hearing, for failure to give him an opportunity to be heard.

The plaintiff further prayed the court, to determine whether the defendant is empowered by law to review the judgement of a competent Court or Tribunal, and arrive at a different conclusion from that of the Court or Tribunal for the purpose of indicting him for criminal prosecution.

Professor Osunbor therefore, prayed the court to declare that by the combined provisions of Sections 5 and 6 of the National Human Rights Commission Act, Section 214 of the 1999 Constitution, the defendant has no powers to investigate him for electoral offences as stipulated in Section 214 to 139 of the Electoral Act, 2006, indict him for electoral crimes and forward his name to the Attorney-General of the Federation for prosecution.

He also asked the court, to declare that the Report is in gross violation of his fundamental right to fair hearing and that the recommendations in the Report as it relates to him are ultra vires, null and void and of no effect whatsoever.

Furthermore, the plaintiff prayed the court to declare that the defendant is not empowered by law to review the judgement of a competent Court or Tribunal, and to arrive at a different conclusion from that of the Court or Tribunal for the purpose of indicting him for criminal prosecution.

The plaintiff also prayed the court to restrain the defendant, its agents, privies from taking any step or action or circulating or continuing to circulate or retaining the Report in its website or forwarding the said Report to any agency or institution of government or other organisations in or outside Nigeria.

The plaintiff also asked for the sum of N500 million as general damages for the mental agony, torture, pain, and psychological trauma occasioned to him by the defendant’s Report.

Reacting to the Originating Summons, the defendant through its lawyer, Mr. Femi Adedeji, filed two preliminary objections dated June 26, 2014 and February 25, 2015, questioning the jurisdiction of the Court to entertain the matter.

The first preliminary objection dated June 26, 2014 was decided on appeal, while the preliminary objection of February 2015, was predicated on the facts that the court lacks jurisdiction to hear the suit, because the Originating Summons was not initiated by due process of law; that complaint of the plaintiff pertains to the alleged violation of his fundamental right to fair hearing guaranteed by Section 36 of the Constitution and that by virtue of Order II, Rules 3 of the Fundamental Rights, the plaintiff is required to file a Motion on Notice for the enforcement of his fundamental right to fair hearing, amongst others.

The argument of the defendant was essentially that the plaintiff ought to have instituted the action vide Order II, Rule 3 of the Fundamental Rights (Enforcement Procedure) Rule 2009, for the reason that the facts in support of the plaintiff’s Originating Summons and reliefs sought, showed a complaint against breach of his fundamental rights, and should therefore, come with the procedure set out by the rules.

The defendant’s lawyer submitted that non-compliance with the rules, had robbed the court of the jurisdiction to entertain the matter.

In opposing this objection, Mr. Omonuwa, SAN, counsel to Professor Osunbor, submitted that the plaintiff’s action is anchored on the interpretation of certain provisions of the 1999 Constitution, the Police Act, and the National Human Rights Act, 2010, touching on the issue of fair hearing.

Omonuwa, SAN noted that Order II Rule 3 of the Fundamental Rights Enforcement Procedure, provides for the mode of commencement of action under the rules.

He noted further that, the rules make allowance for commencement by any originating process accepted by the Court, like in the present action.

He urged the Court, to refuse the prayer sought by the defendant in its preliminary objection.

But giving her judgement last Friday, Justice Ojukwu dismissed the objection to the Court’s jurisdiction filed by the defendant, and upheld the arguments of plaintiff‘s counsel, Mr. Omonuwa, SAN urging the Court to affirm jurisdiction.

The Judge held that, the argument of the defendant seems to suggest that they are immune to the principle of natural justice, premised on the fact that they only reviewed the judgement of the