Daily Independent (Lagos)
Chimezie Elemuo
7 January 2009
opinion
"Do not aspire to be a judge, unless you have the strength to put an end to injustice, for you may be intimidated by a man of rank and so compromise your integrity"- Ecclesiastics in the Apocrypha Chapter 6, Verse 7.
Niki Tobi said in Egesimba V.Onusirike ( 2002) FWLR 1386 (pt.128) 1425-1426 that "justice in its total practical content is truth in action. And the court has the duty to search for the truth and find it." I am surprised that Niki Tobi did not live up to this quote on December 12, 2008 in his leading judgment in the presidential election appeal. Pontius Pilate recognised that our Lord Jesus Christ did not commit any offence under the law, but his courage failed him to uphold the law for the fear of the backlash of his decision from the motley crowd that had gathered before him. So he stood the law on its head and allowed our saviour Jesus Christ to be taken away for crucifixion. That biblical event replayed itself at the Supreme Court on December 12, 2008 with exactly the same facts. Hear Niki Tobi's defence line. "The way politics is played in this country frightens me every dawning day. It is fight to the finish affair. Nobody accepts defeat at the polls. The judges must be the final bus stop. And when they come to the judges and the judges in their professional minds give judgment, they call them all sorts of names. To the party who wins the case, the judiciary is the best place and real hope of the common man. To the party who loses, the judiciary is bad." This statement is not only defensive but amounts to pre-empting the criticism of the public. A word for Niki Tobi and this comes from First Peter, Chapter3, Verse 16 and 17. "Do what is right, then if men speak against you, calling you names, they will become ashamed of themselves for falsely accusing you when you have only done what is good." The late Akinola Aguda in his September 1981 lecture to Lagos State Magistrate' Association said "open criticism is the usual and acceptable prize built into the system, which judges have to pay so that the state can have peace and stability." In Ambard V. A.G. for Trinidad & Tobago (1936) A.C. at 36 it was held that "justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and respectful, though outspoken comments of ordinary men." The duty of the judge is to state the law as it is and upheld it. He should not worry about what Justice Nnaemeka-Agu, J.C.A. (as he then was) called "stagnating and scathing criticism." A English county judge, who was writing under the assumed name, Henry Cecil, wrote in his book entitled: 'The English Judge' that "another very able, fair-minded judge died simply because he was temperamentally unsuited to the work. He worried himself into the grave." To judges like Niki Tobi, who worry much about public criticism, Aguda has this advice: "My advice, however, is that as soon as he pronounces his judgment, he should try to forget everything about the case - that is everything that might have hitherto been weighing heavily on his mind - and start thinking of the next case or of his game of golf or ayo. Because if he starts thinking of the guillotine awaiting his neck, which may be administered by politicians even though they may not be party to the suit - this is said in the manner of a metaphor - then he may, indeed, this time not metaphorically but as a matter of fact, proceed unceremoniously into an early grave." My Lord, Niki Tobi should not worry himself about how politics is played in Nigeria. His worry should be to uphold the law no matter whose horse is gored. In Colegrove V. Green (1946) 328 U.S. 549, Justice Frankfurter said "it is hostile to a democratic system to involve the judiciary in the politics of the people."
This brings us to the next level. To those judges with sound mind. With refined legal reasoning. Those judges who have refused to be intimidated by the men of rank and compromise their integrity. Justice Oguntade J.S.C. is one of them. Not necessarily because he dissented from the majority decision in the presidential election appeal but because His Lordship has been exhibiting judicial courage and firmness. His judgments are usually sound and robust. And I can term them, 'justice in action'. His Lordship does not belong to those judges who see themselves as government judges. The types Lord Denning castigated in Boyce V.Paddington Borough Council (1903) 1 CH. 109 at 114 as 'timorous souls'. In this clan, where corruption has gone too deep into our national life, we should as a matter of duty, single out the fair- minded ones for commendation as this would encourage them the more. What His Lordship has done is what other judges fear to do because of the fear of the unknown. In their work, Law and Politics, The House of Lords as a Judicial Body (1800-1976), Stevens and Roberts said only few English judges merit an extensive intellectual biography. Ogundate, J.S.C. is a walking biography. In their book, Kayode Eso: The Making of a Judge, Ade Ajayi and Akinseye- George said quite correctly that some judges watch the mood of the executive and carefully mould legal principles to suit the so-called powerful interests in society. I think that is what the majority decision has just done. Hear Niki Tobi again: "for the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the presidential election conducted in 2007. What I am saying is that there was no evidence before the Court of Appeal to dislodge Section 146(1) of the electoral act." So the status quo remains and we will still remain where we are. In Packer V. Packer (1954) AC at 22, Lord Denning said, "if we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both." In Amaechi V. INEC & 2 Ors (2008) 1 S.C. (pt. 1) p.107, Oguntade, J.S.C., said quite firmly that "a court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place." This bold statement was what he carried out in the presidential election appeal. Eso, J.S.C. said in Engineering Enterprise Contractor Company of Nigeria V. A.G., Kaduna State( 1987) 1 NSCC 601 at 613 that " the signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court." The is what Oguntade, J.S.C. is bringing into the Supreme Court.
This brings us to the next level. If all the Supreme Court Justices have harsh words for Maurice Iwu's INEC, then in a more decent society, that is enough ground for Iwu to resign his appointment or be booted out. The man has no moral ground or competence to remain as INEC Chairma
For Justice Oguntade, he is my man of the year as it's customary for the media houses to do each year. And in his honour, I intend doing a small book (that will be affordable) as a way of encouraging him and his likes and those of us who belong to the next generation. My Lordship, I say to you as some of our friends in the Kygaite Club will say "may your days be long. May you walk and never stumble."
Elemuo is a Port Harcourt- based lawyer
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