… And Their JUDICIAL ATTITUDE of Minimal Interference and Preference for Out-Of-Court Settlement in Matters Involving The National Assembly and Constitutional Provisions Relating to The Legislatures (Lessons from Oliver Wendell Holmes and Distinguishing the Cases of Ali Ndume and Omo-Agege)
By Dr. Tonye Clinton Jaja
Dear Distinguished Senator Natasha Akpoti-Uduaghan, Ma,
And
Dr. Abiola Afolabi-Akiyode, Ma,
Recall that in the year 2021, the United Nations Women Agency (UN WOMEN) in Nigeria engaged us as legal consultants to produce a draft of the Gender and Equal Opportunities Bill (GEOB). Which was subsequently sponsored by Senator Biodun Olujimi at the National Assembly.
It is important to begin with a statement of our shared commitment to advancing the cause of increased women participation in the National Assembly.
Dr. Abiola, ma, further recall that both of us were schoolmates at the PhD in law degree programme at the University of London.
One of the Compulsory Courses for all PhD law students at the University of London was Legal Research Methodology.
During the said Legal Methodology course, we were introduced to different theories of law (schools of thought) in the study and practice of law.
One of the said school of thought is legal realism as espoused by Oliver Wendell Holmes.
It appears that both Senator Natasha Akpoti-Uduaghan and her lawyers are not paying attention or adopting a PRAGMATIC APPROACH TO THE LAW.
In other words, they are not approaching this case of Senator Natasha Akpoti-Uduaghan from a legal realism point of view.
They appear to be fixated on the legal outcomes (to be obtained from courts of law) that they themselves have conjured up inside their heads and in their brief of arguments.
The problem with this fixation is that it does not allow them to explore any other pragmatic approach such as out-of-court settlement and resolution of the issue of her resumption as a Senator of the Federal Republic of Nigeria by attending plenary sessions.
The legal outcomes that both Senator Natasha Akpoti-Uduaghan and her lawyers are fixated upon does not align with the judicial attitude of the Nigerian courts of law.
Ironically, both Senator Natasha and her lawyers appear to forget that the Nigerian courts inherited and still apply the common law legal system from our colonial masters, the United Kingdom.
The common law legal system is characterised by a predominant reliance on judge-made laws and pronouncements of the Nigerian courts which coincidentally is at the very heart of the legal realism school of law as propounded by Oliver Wendell Holmes.
In essence, it is bereft of a grounded understanding of the Legal Realism school of thought.
According to Oliver Wendell Holmes’s pronouncement that “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law” defines the law as a pragmatic prediction of judicial action. This prediction theory of law, articulated in his 1897 speech “The Path of the Law”.
Going by the foregoing definition of Oliver Wendell Holmes, both Senator Natasha Akpoti-Uduaghan failed to discern or take the hint of the judgment of 4th July 2025 by Hon. Justice Binta Nyako.
In the said judgment, Hon. Justice Binta Nyako while criticising the imposition of six months suspension (as a violation of Section 63 of the Constitution of the Federal Republic of Nigeria, 1999) upon Senator Natasha Akpoti-Uduaghan.
However, in the said judgment she refused to categorically direct the Senate of the Federal Republic of Nigeria to recall Senator Natasha Akpoti-Uduaghan.
Instead, she advised that the Senate of the Federal Republic of Nigeria should undertake a review and amendment of the Standing Orders of the Senate, 2023 to bring it’s provisions into harmony with the provisions of the Nigerian Constitution.
The underlying reason for this approach (judicial attitude of Nigerian judges) is the principle of separation of powers amongst the three arms of government namely the Judiciary, the Executive and the Legislature) as propounded by Montessique.
As a general rule of law, none of the said three arms of government ought to be seen issuing orders or directives to another arm of government about how to conduct their affairs. It could be deemed interference.
However, it is only when the actions of any of the three arms of government are in violation of the provisions of the Nigerian Constitution that, the judiciary is usually invited to intervene and make an interpretation and pronouncement to remedy the situation by way of judicial review.
Another recent example of this judicial attitude of Nigerian courts is the judgment of the Supreme Court of Nigeria that was delivered on 28th February 2025.
In the said judgment, the Supreme Court of Nigeria held that it is only the Speaker of the Rivers State House of Assembly (and by extension any other legislature in Nigeria) that has the right to declare whenever a legislator has satisfied the requirement of defecting from one political party to another.
The Supreme Court of Nigeria categorically stated that the Nigerian courts cannot descend into the arena by USURPING THE LEGISLATIVE FUNCTIONS OF LEGISLATORS by making pronouncements on when the circumstances arise that confirm defection of legislators.
The caveat is that a judicial review can be undertaken in the event that a legislator alleges that the process of declaration of defection by the said legislature has not complied with the provisions of the Nigerian Constitution.
The locus classicus (landmark judgment) that shows that the Nigerian courts as a general rule do not interfere with the internal affairs of the Nigerian legislatures is National Assembly of Nigeria vs President of the Federal Republic of Nigeria and the Attorney-General of the Federation and Minister of Justice (SC/214/2015).
In that case the Supreme Court of Nigeria categorically directed both the National Assembly and the Executive Arm of Government (represented by the then President of Nigeria, Dr. Goodluck Ebele Jonathan) and the then Attorney-General of the Federation (AGF) to explore out-of-court settlement to resolve the issues.
The issues arose because the then President of Nigeria refused to assent to certain Constitution Alteration Bills.
The then President alleged that he withheld assent because the National Assembly refused and failed to comply with the provisions of Section 9 of the Nigerian Constitution relating to the procedures for alteration of the Nigerian Constitution.
For example, “Non-compliance with the threshold specified in Section 9(3) of the 1999 Constitution on amendments
“Alteration to constitution cannot be valid with mere voice votes unless supported by the votes of not less than four-fifths majority all members of national assembly and two-thirds of all the 36 state houses of assembly;” This is reported online at: https://www.thecable.ng/supreme-court-halts-constitution-amendment/#:~:text=Non%2Dcompliance%20with,houses%20of%20assembly%3B
“Consequently, in Suit SC/214/2015 filed at the Supreme Court by Mohammed Adoke, attorney-general of the federation, the federal government argued that the bill was not passed by four-fifths of the two chambers of the national assembly as stipulated in Sections 48 and 49 of the Nigerian constitution.”
Finally, it is very important for Senator Natasha Akpoti-Uduaghan and her lawyers to apply the legal method of DISTINGUISHING OF JUDGEMENTS AS THEY ANALYSE the cases of suspension of legislators such as Senators Ali Ndume (2017) and Omo-Agege (2018) respectively.
The facts relating to the suspension Senator Natasha Akpoti-Uduaghan and the judgment of 4th July 2025 are majorly different from those of Senators Ndume and Omo-Agege respectively.
Unlike the Ndume and Omo-Agege respectively, the judgment in the case of Senator Natasha imposed a fine of ₦5,000,000 (five million naira only) and a letter of apology as a pre-requisite requirement before her resumption!!!
On this note, I rest my case.
Yours faithfully,
Dr. Tonye Clinton Jaja,
13th September 2025.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
Courts avoid deep interference in legislative issues; dialogue works better than endless court battles.