Awa Kalu
10 July 2008
For the reasons already provided, the date 8th July, 1978 would remain indelible. By way of analogy, when a child is born, it is customary to give thanks to God not only on the child's date of birth but on subsequent anniversaries of the birth-customarily referred to as birthdays.
Each of these occasions draws a hearty happy Birthday refrain. But in the annals of mankind, all anniversaries are not equal. One can celebrate the Silver, the Golden and Diamond Jubilees of any event, particularly birthday and marriage anniversaries.
While each jubilee is considered a special occasion, the intervening periods between one milestone and the next have also been elevated into reasons for jollification in their own right.
This is the reason why the Law School Class of '78 is celebrating thirty years at the Nigerian Bar. As is usual, the celebrant of any milestone recounts the events that have made the milestone remarkable and memorable. So, what particular events will the Law School Class of '78 remember? It is not in my place to impose any events on all members of that class.
However, as the self-appointed chronicler of the Class of '78, I shall arrogate to myself the privilege of recounting undeniable events that have made the journey of thirty years worthy of celebration.
It is customary in the traditional African society to rely on folklore when dates are hazy or unknown. I have relations who were born in the years of the Aba Women's riots. There are yet others who were born during the outbreak of yaws or chicken pox. Our year of independence is yet another occasion which illiterate mothers use in remembering the date of their children's birth.
Easily, it is undeniable that this class of Lawyers was born during military rule and joined the transition to civil rule. As a Corper in faraway Sokoto State, I can recall that one of us (Corpers) - Pere Okoro-now of blessed memory, sneaked away to his home state - the Bendel State - and contested election into the State House of Assembly and won. He remained a very vocal member of that House until the cruel hands of death snatched him away from us. The transition from military to civilian governance paved the way for the earth shaking decision of the Supreme Court in Awolowo v. Shagari.
While that case is generally remembered as a yardstick for 'measuring' what in the view of the apex court constituted two_thirds of the then nineteen states in the Federation, some would see in it one of the occasions on which the Supreme Court relied on expediency and pragmatism to arrive at its decision. As neophytes then, we were in the main, carried away by the razzle_dazzle of the occasion - the return to civilian rule and constitutional democracy.
Apart from the controversy which the judgment sparked at the time - including a vigorous dissent by Hon. Justice Kayode Eso, our class appreciated the imprint of jurisprudence well woven into the judgment. For instance, it was the view of the majority that in most countries with common law jurisdictions such as Nigeria, it is generally accepted that it is the function of the judiciary to interpret the law with minimum of direction from the legislature as to how they would set about this task.
Thus nearly all the principles, precepts and maxims of statutory interpretation are judge-made. That case emphasizes that a statute should always be looked at as a whole; words used in a statute are to be read according to their meaning as popularly understood at the time the statute became law, a statute is presumed not to alter existing law beyond that necessarily required by the statute.
The court fell back on the wise counsel of Viscount Simon, L. C., that judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in constructing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction! In our class, we liked the phrase 'voyage of discovery' and when the Supreme Court repeated it in Shagari's case, it was thrilling.
The court exhumed it from the illuminating dictum of Lord Simmonds in Magor and St. Mellons Rural District Council v. Newport Corporation (1952) A. C. H. L. 189 at 191 wherein the learned Law Lord emphasized that "the duty of the court is to interpret the words the Legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited".
When lawyers are young, they are, as a general rule, enamoured by bombastic words and phrases and even verbosity. In that light, some members of this class preferred "perusal" to "reading", and referred to a litany of "illuminating dicta", "underpinning", "celebrated judgments", "Locus Classicus". Maxims of Equity were quoted generously even in conversations. Who did not like "Equity aids the vigilant"?
Who did not like "Novus actus interveniens", "Res Ipsa Loquitor" and so on? "According to Lord Denning" was sufficient anchor for any legal opinion even if you did rampant "cram and pour". After Shagari's case, we had a rapid turn over of cases arising from election petitions _ Chief Akin Omoboriowo v. Chief Adekunle Ajasin; Orubu v. INEC; Torti v. Ukpabi; Ojukwu v. Onwudiwe; Nwobodo v. Onoh.
Each of these cases is warrant for one major legal principle or the other. For instance, Torti v. Ukpabi, explained in lucid terms that there is only one State High Court and even if the High Courts sits in judicial divisions, they do not constitute separate courts but are for administrative convenience only. Omoboriowo v. Ajasin, just like Nwobodo v. Onoh crystallized as never before the doctrine of severance in civil proceedings.
The doctrine is to the effect that where in any civil proceedings the averments alleging a crime are severable and if after the severance there still remains in the pleadings of the plaintiff or petitioner sufficient averments devoid of criminal imputation against any party to the proceedings and on which the plaintiff or petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability as it cannot then be said that the alleged crime was a fact in issue or directly in issue.
Both cases equally establish that 'there is in law a rebuttable presumption that the result of any election declared by the Returning Officer is correct and authentic by virtue of sections 115, 148(c) and 149(1) of the Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. Where such denial is based on a mere complaint that the petitioner scored a majority of lawful votes, the rebuttal needs only to be proved within the balance of probability.
It is impossible to highlight all the cases that have arisen within the life span at the Bar of the class of '78. However, Nafiu Rabiu v. The State, a decision of the Supreme Court, which entrenched the purposive canon of statutory and constitutional interpretations in our jurisprudence, cannot easily be forgotten. Chief R. B. K Okafor v. Hon. P. C. Onuoha, a case which reached the Supreme Court, is the forebear of all the other cases such as Dalhatu v. Turaki; Okonkwo v. INEC; Enomuo v. Duru; Balonwu v Ikpeazu; PDP v. Haruna; Ugwu v. Araraume; Amaechi v. INEC; etc. which allowed political parties the complete freedom and leeway to treat candidates for political and elective office, the way they chose.
The courts, interpreting applicable Electoral Act, held that it was within the province of a political party to choose which of its members to sponsor for political office. Happily, this principle of non-interference by the courts in the domestic affairs of political parties has been ameliorated by statutory intervention and has received the blessing of the courts.
The journey from Onuoha v. Okafor to Ugwu v. Araraume and Amaechi v. INEC was long and tortuous. Luckily, the class of '78 is celebrating at a time when on account of statutory intervention, a political party cannot abandon or sideline its nominated and chosen candidate unless it informs the Independent National Electoral Commission of its intention to do so, assigning cogent and verifiable reasons for such a drastic decision.
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