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Nigerian Supreme Court controversial pronouncements: Lawyers call for Judicial Reforms

By Mustapha Kunle Ogunsakin

Justice Chima Centus Nweze of the Nigerian Supreme Court is not your ordinary judge. Apart from having a Ph.D in law, he was a law teacher before he joined the bench. He is also not a judge by hierarchy, as he joined the bench having being in practice for more than ten years at the  bar. Even as High Court judge, he was a darling of the Civil Society Organisations, getting regular invitations to law related workshops and seminars in the quest to use the law as a tool of social engineering.

For those who know him, it was therefore not a surprise when he gave the dissenting judgement in the Imo State pre-election case that removed Ihedioha as governor of the State. Nweze believed that Uzodinma who the majority decision favoured actually misled the court to arrive at the unjust conclusion that removed Ihedioha from office.

“This Court once set aside its own earlier judgment and therefore cannot use time frame to extinguish the right of any person. This Court has powers to overrule itself and can revisit any decision not in accordance with justice”, Nweze said, warning that the decision over the apex court will continue to hunt it for a long time to come.

With this dissenting judgment, Nweze has written himself into immortality just like some of his predecessors such as the late Justice Akintola Ejiwunmi who in the State Vs Mohammed Abacha case insisted that the son of the late military dictator, Gen Sani Abacha, should face trial for the murder of the late Alhaja Kudirat Abiola, wife of the late Chief MKO Abiola who was killed in 1996 by the alleged agents of change. Justice Ejiwumi called the position of his brother judges the “tyranny of the majority”.

Senior Advocates Babalola, Olanipekun, Fagbemi, Daramola, Bode Olanipekun

Just like the late Ejiwunmi, Nweze disagreed with his brother judges, particularly in the Bayelsa State election matter that the Apex court cannot review itself.  “This Court has powers to overrule itself and can revisit any decision not in accordance with justice”, he said, debunking the position of his brother Justice Amina Augie, who in the Bayelsa case castigated the senior lawyers led by Aare Afe Babalola SAN, and Chief Wole Olanipekun SAN for seeking a review of the court’s judgment on the Bayelsa case.

Other senior lawyers in the team include Prince Latest Fagbemi SAN, Olu Daramola SAN, Kehinde Ogunwumiju SAN, O.I Oluwadare SAN, and Bode Olanipekun SAN.

Justice Augie said in her judgment: “The position of the law is that the decision of this court on any matter is final, subsisting, and binding on parties, and there is no statutory or constitutional provision allowing this court, as the apex court, to review its decision by itself, therefore, this court does not and cannot sit on appeal over its own judgment”.

Her lordship did not stop there. She had very harsh words for the senior lawyers. “As it is, I cannot believe and I say this with tears in my eyes, I cannot believe that in my lifetime I would see very senior members of the bar bring applications of this nature to this court; which are aimed at desecrating the sanctity of this court; violating the well known principle that the decisions of this court are final; destroying the esteem with which this court is held”.

Justice Augie went ahead to declare the applications as vexatious, frivolous and a gross abuse of court process, and ordered the two lawyers to pay the sum of N30 million each to the respondents.

Justice Centus Nweze,JSC

The lawyers have said they did nothing wrong. In their letters to the Nigerian Bar Association (NBA) National Executive Council, both lawyers pleaded their innocence.

Olanipekun in a letter dated March 10, 2020 and Babalola’s letter dated March 11, 2020, addressed to the NBA President, Paul Usoro , SAN, insisted that they did no wrong by asking the court to take a second look at its earlier  judgment.

Both lawyers represented the All Progressives Congresses (APC) and its candidates in the last governorship election in Bayelsa State, David Lyon Pereworinmin and Biobarakuma Degi-Eremienyo, seeking the apex court to set aside its judgment which voided their victory in the election.

The Supreme Court, in a ruling by a seven-man panel on Feb. 26, dismissed the applications by the APC and its candidates.

The Legal luminaries in their letters to NBA argued that they did nothing unlawful and unprofessional to warrant the harsh words used on them and the unprecedented cost awarded against them for merely carrying out their professional responsibilities as lawyers.

They warned that the decision of the Supreme Court, as it relates to them, was capable of laying wrong precedence that lawyers could be penalised for merely seeking to explore the justice administration process for the benefit of his/her client.

Justice Amina Augie, JSC

In his letter, to which he attached all  processes in respect of the case, Olanipekun said “I and the team of lawyers that I led in the matter did no wrong.

Either in terms of our presentation through the filling of the application or during the oral argument in court. I repeat again, with every emphasis at my disposal and all sense of responsibility that we did no wrong, committed no error and do not deserve the harsh comments in the leading ruling of Justice Amina Augie. It might interest you to note that there is no nexus or proximity or even bearing between the processes filed by us and the most unfair and least expected stern expressions of her lordship, Justice Amina Augie;

Once again, this letter is for record purposes, particularly to put the records right and let the NBA know that I will ever remain the humble, but focused leader of the Bar that I have always strived to be”.

Babalola in his letter said, “I write to bring  to the formal attention of the NEC of the Nigerian Bar Association, the unfortunate events which occurred on February 26.

“More importantly, we protest and draw the attention of NBA to the danger posed to the due administration of justice by the disparaging remarks made in the ruling of the court concerning our principal, Afe Babalola SAN, CON and the imposition on him of the unprecedented costs of N30 million;

“The action of the Court, aside from being unfair and totally unwarranted, if not urgently addressed, is  capable of sending a wrong signal to judges of courts, lower in hierarchy to the Supreme Court about how they can and should relate with lawyers, who appear before them to plead the case of their clients”.

He said the action in the long run will be inimical to the development of trust and respect between the bar and the bench and will ultimately hamper the smooth operation of the justice delivery sector in Nigeria.

“It is with respect to their Lordships of the Supreme Court, who sat on Feb. 27, 2020 that we state that the award of cost of N30 million against Aare Afe Babalola SAN, CON failed to meet the standard set by that very court concerning the award of costs.

“Costs have never been imposed to intimidate counsel as is apparent in the cost orders made by the Supreme Court in this instance.

“The cost order lost sight of the fact that Babalola, like every other lawyer, has a duty under the rules of professional conduct to devote his attention, energy and expertise and subject to any rule of law, to act in manner consistent with the best interest of his client.

“It is in the light of the above that we most respectfully request the Nigerian Bar Association, through the National Executive Council, to look into this matter with a view to preventing a situation where the courts would seek to intimidate counsel and prevent them from either adequately presenting the cases of their clients or punishing them for doing so in a manner required of them under the rules of professional conduct.

“This situation, at the risk of repetition, if allowed to persist and gain footing, will do incalculable damage to the administration of justice in Nigeria.”

A perusal of the grounds on which Aare Babalola filed his brief disclosed that he did not seek a review of the judgment of the court but sought an order setting aside the judgment due to the breach of natural justice and the right to fair hearing of the applicants.

Ground 1(i) of the appellant’s brief stated thus: “Nullity arising from the breach of the rules of natural justice and the right to fair hearing”.

Ground 1(ii) stated: “Breach of fair hearing as this court committed to consider 1st and 2nd  respondents arguments before holding that they never challenged the Federal High Court’s findings that the appellants case was documentary in nature and proceeded to find that the suit was properly instituted by way of originating summons”

These grounds are in tandem with the position of Justice Nweze that the Supreme Court cannot use time frame to extinguish the right of any person, and that it has powers to overrule itself and can revisit any decision not in accordance with justice”.

Anthony George-Ikoli SAN, Femi Falana SAN, Titilola Akinlawon SAN, and Richard Akinnola

Have there been instances in the past when the Supreme Court granted reviews of his own judgment? Human rights lawyer, Femi Falana SAN believes so.

He said, “Justice Chukwudifu Oputa of blessed memory used to encourage legal practitioners to come back to the court if they feel the court’s position is wrong or unsatisfactory. That was what led to his famous remarks that “we are not final because we are infallible, we are infallible because we are final”.

Are the apex court justices then right in their very harsh comments on Babalola, Olanipekun and others? Falana believes the apex court Justices were wrong. “They cannot be right. People have been expecting that the justices will do the same against lawyers that handled the Imo State case but they did not. In any case, Justice Nweze completely made mockery of his colleagues in his judgment in the Imo State case and it means they are not right”, he said.

Are there precedents where a lawyer asked for a review of the judgment of the apex court, and was refused without attracting harsh words and prohibitive costs?

In response to this, Richard Akinnola, famous Judicial editor and writer narrated the story below:

“Chief Rotimi Williams, SAN (of blessed memory) was an embodiment of the law. He was a titan of the law who was given the sobriquet, “Timi the law”. But this quality too often led him as in 1987, to ask for the impossible – that the Supreme Court should overrule itself! It takes the likes of “Timi the law” to initiate such moves.

It was the case of Prince Yahaya Adigun and two others v. The Attorney General of Oyo State and 18 Others. The subject matter was a chieftaincy dispute at Iwo, now of Osun State.

On May 20, 1987, the Supreme Court delivered its final judgment in Williams’ appeal where two of the three claims of the appellants were granted.

The first claim of the appellants, who were Chief Williams clients and which was not granted, was for a declaration that by virtue of the customary law prevailing in Iwo, the Ogunmakinde  (Appellants’) Ruling House was the only ruling house from which the appointment to the Oluwo of Iwo chieftaincy was to be made.

In dismissing this claim, the Supreme Court however said that “proper inquiry to be the basis of a new and proper declaration should be set into motion so that the stool vacancy can be filled within a minimum delay.”

The Appellants, through their counsel, Chief Williams then brought an application under the “inherent jurisdiction of the Supreme Court to amend its judgment to delete the dismissal of the first claim and substitute with a decision granting the said application.”

This instantly introduced a new equation to the nation’s legal algebra. Here was a novel development which the Supreme Court did not find funny as it unanimously rejected the plea, stating that there was no constitutional provision for the review of the judgment of Supreme Court and that by virtue of section 215 of the 1979 constitution, no appeal could lie to anybody or person from any determination of the Supreme Court.

Justice Kayode Eso (JSC as he then was) did not mince words as he flatly told Chief Williams that his (Williams’) attempt was like waking up a dead body.

His words:   “The decision of the Supreme Court is final. Final in the sense of the real finality in so far as the particular case before the court is concerned. It is final forever, except there is a legislation  to the contrary and it has to be a legislation ad hominem.”

However in this case, no costs were awarded by the Supreme Court against Chief Williams. Why then is there so much controversy on the judicial pronouncements of the apex court in recent times?

Anthony George-Ikoli SAN, former Attorney General of Bayelsa State warns that these pronouncements from the Supreme Court can spell doom for the nation’s democracy. . “Our failures on the political terrains have always been presaged by the perfidious collapse of the judiciary .The treasonable felony cases of the Action Group years, culminated in the first coup.

The declarations of the courts in the Second Republic presaged the 1984 coup. Also, the pronouncements of the courts before and after the annulment of the June 12,1993 elections led to another coup. How did we end it all? The discordant symphonies from the courts of late should worry and be particularly troubling to all lovers of democracy”, he said.

He said further: “The unceasing misadventures of the bench (especially as its lack of depth and profundity is demonstrated with embarrassing regularity) makes inevitable the conjecture that we would never ever again experience the sublime offerings of the philosophers; Justices Chukwudifu Oputa, Kayode Esho, Charles Madarikan, Niki Tobi, Karibi Whyte, the peerless Taslim Elias, George Oguntade, Fatai Williams, Udo Udoma, Chukwunweike Idigbe…all in no particular order”.

The senior lawyer commenting on the Supreme Court decision on both Imo and Bayelsa State said: The two cases exposed the timidity of the court and weakness of its bench. They (justices) frittered away an opportunity for immortality. As we say, the two cases are distinguishable”.

He said further: “Respectfully, the Supreme Court is a neutered institution; apart from its role as umpire between states and between states and the federal government, it is, what the Italians call a, stromboni; potentially lethal, but practically harmless. This Supreme Court is just an assemblage of reviewers. But that is where their problems emanate from. It has no original jurisdiction, outside that donated by its constitutive protocols, but and despite that constriction, it is the only institution, in a Constitutional  Democracy, imbued with the unfettered ability to shape society. It is the only body, literally and largely unregulated  to profoundly affect the health of the commonwealth. Acts of the parliament can be ruled unconstitutional, but there is none that can so declare a pronouncement of the Supreme Court.

Without fear or favour; without let or hindrance, with malice to none, even if the heavens fall, justice shall not be only done, but it shall be manifestly seen to have been done. These are all that we were taught, but can we say confidently that those paradigms are still the ruling ethos of the court? ;

Bayelsa, was perhaps a wrong summation and consequently, perhaps a wrong and unjust review, but, Imo was patently judicial heresy. Analyze the legalese employed and deployed in the two judgements; one was combatively excoriating, unapologetically redemptive and territorially assumptive, while the second, was tentatively presumptive and defensively magisterial; there was even a dissenting opinion;

As a collegiate, dispensing judicial nostrum, dissenting opinions amongst the robed brethren,  is affirmative of lack of unanimity and nothing is more emblematic of the chaos in the temple. By my attainments, I am a senior votary in the  temple; enjoying privileged preferment as a praetorian of the court, but with Bayelsa and Imo, especially Imo, I dare to be iconographic and I say, our rainments are sepulchral and justice itself is on trial”, he concluded.

Also Mrs Titilola Akinlawon SAN upheld the argument that new blood should be infused into the judiciary, particularly, the Supreme Court, from the bar. In an interview with Channels Television, Mrs Akinlawon believed that if this is done, like in the past, the decisions emanating from the court will be more richer and more enduring. “But the bench has continually blocked this move by the Nigerian Bar Association (NBA). There’s this thinking that lawyers who have chosen the path of advocacy want to enjoy two worlds by coming to the bench. Even a Chief Justice of Nigeria (CJN) who is the chairman of the National Judicial Council (NJC) has made a pronouncement on it. They keep blocking members of the bar from coming into the bench”, she concluded.

 

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