Pendulum: Why I Have Faith in the Supreme Court

By Dele Momodu

“WE MUST DO WHAT HAS NEVER BEEN DONE BEFORE.

What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.” Lord Denning, Master of the Rolls (1899- 1999) PARKER v PARKER.”

Fellow Nigerians,

I’m not a Lawyer. But I’m surrounded by friends who are Lawyers. I enjoyed seeing Lawyers in their wigs and gowns and was tempted to read Law after my first degree at the University of Ife, now Obafemi Awolowo University, Ile-Ife. Unfortunately, or fortunately, depending on how you view my trajectory today, my application was bounced by the egg heads at the Faculty of Law, despite my first degree which, in some universities, would have been a prerequisite for my entry into a Law degree program. That is a story for another day. I simply accepted my destiny, with equanimity.

Since I had a fascination for Law, I privately engaged in picking and reading legal textbooks, especially anything to do with Jurisprudence and a bit of Company Law. I was particularly fascinated by the landmark cases of the iconic Jurist, Lord Denning, and how he broke rank with the traditional rules and previously held presumptions in English Law, by taking the road less travelled. I enjoyed, and relished, his radical views and witticisms. The above quote of Lord Denning is very relevant to my current topic about the Supreme Court of Nigeria.

The main reason for my epistle to you today is simple and straightforward. Many Nigerians seem to have given up on our Judiciary. There are at least two monumental cases ongoing at the Supreme Court of Nigeria in the Presidential election appeals that were separately filed by Atiku Abubakar and Peter Obi against Bola Tinubu and INEC. Many people have called to ask why my principal, Atiku Abubakar, is wasting his time and resources on pursuing a fruitless case. None of them ever said he never had a good case. They merely gave the usual conspiracy theories as to how corrupt the Judiciary is in Nigeria, as well as the war chest of Bola Tinubu, which he’d never been known to shy away from deploying to maximum advantage. While it may be true that bribery and corruption is of a pandemic status in Nigeria, I still believe there are good people, and Judges, in Nigeria. We should therefore resist this campaign of calumny against our Judges. I have personally thrown this question at Atiku Abubakar a couple of times and he told me very firmly that he believes in the rule of Law. He mentioned how he’s been saved several times by taking his matter to the Judiciary.

The doubting Thomases in Nigeria often predicate their skepticism on the fact that no Presidential election appeal has ever succeeded in removing an incumbent President. While this may true, I believe there is always the possibility of a first time in every situation, and this is the origin of statistics.

At least, we have the reinvigorating example of Sidi Dauda Bage, a Retired Justice of the Supreme Court of Nigeria who said in the case of SALEH v. ABAH & ORS (2017) LPELR-41914(SC)

“This Court must take the lead, in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our waters are and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity. The Nigerian Constitution is supreme. It desires that no one who had ever presented forged certificate to INEC should contest election into Nigeria’s National Assembly. This is clear and sacrosanct. More compelling as a judicial determination had been taken by no less a technical panel sitting in, at least, a panel of three judges as Election Tribunal with constitutional mandate to determine such issues as they relate to elections and its outcomes, including eligibility. This has also been affirmed by the trial Court in this appeal. On these issues, our duty is to apply the Constitution and the law in its start, original form undiluted by ‘colourated’ interpretations.”  (Pp 26 – 31 Paras E – B)

There is yet another superlative example: “THE POWER OF THE SUPREME COURT TO RECEIVE FRESH EVIDENCE:

Section 22 of The Supreme Court Act provides, inter alia, that *“The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, … and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.”*

In SENATOR HOSEA EHINLANWO V. CHIEF OLUSOLA OKE & ORS
(2008) JELR 48885 (SC), Onnoghen JSC (as he then was) held:

“Order 2 Rule 12 (1) of the Supreme Court Rules which guides the court in the applications of this nature provides, thus: “A party who wishes the court to receive the evidence of witnesses (where they were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of section 33 of the Act shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.” It is settled law that it is within the discretion of the court to decide whether or not to admit further/additional evidence on appeal. It is also settled that for the court to exercise that discretion one way or the other, it must act not only judicially but also judiciously. It is in an effort at attaining the standard of exercising its discretion judicially and judiciously that the courts have set down certain principles/conditions as guides. *The principles are: 1) the evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial; 2) the evidence should be such that if admitted would have an important, not necessarily crucial effect on the whole case, and, 3) the evidence must be such that it is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible — see UBA Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt. 933) 356 at 370–371. The above conditions must co-exist for the court to exercise its discretion in favour of the applicant.”
-SNC-U.

Thank God for social media, we are all learning Law on the go. The world is watching us and our Judiciary in particular. It is sad that our Executive arm of government is already on trial. Our Legislature is considered reckless, unpatriotic and irresponsible by many citizens and non-citizens alike. I do not know why and how they have fallen so low in the eyes of the same electorates who supposedly voted them into the hallowed Chambers. To make matters worse, the Nigerian media, which ordinarily should be the fourth estate of the realm, is also under severe attack of being compromised and divided across ethnic considerations and pecuniary gains by the government of Nigeria. This is the tragedy of our nation. So, to who then do we turn in this season of anomie? Atiku Abubakar had to approach the American Judiciary before he could unravel what should not take up to one hour to confirm at home, if the government agencies agreed to do their jobs according to international best practices.

Even foreign analysts are now painting lurid pictures of Armageddon, the final battle between the good and evil elements in our country. This should worry all of us. The Judiciary today can restore instant global prestige and adulation to our country. The Judges can automatically improve our economy by not kowtowing to the overbearing appurtenances of power, by not delivering technical judgments but being seen to ensure real justice. They can bring back the sinking influence and relevance of their profession.

A CBS newsreport that went viral yesterday should tell us that outsiders, apparently, understand the issues at stake more than us, and they appear even more concerned about the impending catastrophe, if adequate care is not taken. The explosive interview was granted by Gregory Copley, an expert in Defense and Foreign Affairs, an Editor and Publisher, to John Batchelor.This brutal analysis of our predicaments is worth listening to, reading, and digesting, if you can find it online…

Please, join me, in saying the Lord’s prayer, if you wish…