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Opinions of Tuesday, 3 March 2020

Columnist: Gabriel Amalu

Season of atonement

Last week, the Supreme Court excoriated two amongst the foremost living Senior Advocates of Nigeria, Afe Babalola and Wole Olanipekun, for asking the apex court to review its earlier final judgment in the Bayelsa gubernatorial case.

In the judgment, the court held that the All Progressive Congress (APC) resounding victory in the Bayelsa gubernatorial election that saw the emergence of Chief David Lyon and Biobarakuma Degi-Eremienyo, as governor and deputy governor, were inconsequential because the deputy governor presented certificates with different names to INEC, and did not take appropriate steps to answer the discrepancies. Mr Degi-Eremienyo has however denied forging the certificates.

As atonement for their jurisprudential sin, perhaps in the spirit of Lent (a period for fasting and almsgiving for Christians), the two learned silks were asked to personally pay N10 million each, to the three respondents sued in the matter. Of course, for the two legal giants, the penance is within their means to observe.

Considering their status, what they may be regretting is allowing the politicians to lead them to sin. Like in the Bible, it was Satan that beguiled Eve, who in turn made her husband, Adam, to sin.

Justice Amina Augie, who read the unanimous judgment of the full panel of the Supreme Court, was unsparing in denouncing the application made by the learned silks.

She held: “I feel like shedding tears that senior counsel in this case would ever bring this kind of frivolous application during my lifetime.

This court is not authorised and indeed lacked jurisdiction to review any judgment delivered on merit, more so when the applicants have not pointed out any accidental error or slip in the judgment.”

She went on: “There must be an end to every litigation. It is settled that the decision of this court is final. This is a final court and its decision is final for all ages.

To do otherwise is to open a floodgate of litigation on appeals already settled by this court. There is even no guarantee that if these applications are granted, the other side will not come up with fresh applications for further review of the court’s decision.

As I said, there must be an end to litigation to ensure certainty in the law.”

Like Adam and Eve, who became afraid, after eating the forbidden fruit, when “they heard the sound of the Lord God walking in the Garden in the cool of the day”, the two learned silks must have been squirming in the air conditioned court, as Justice Augie took her pound of flesh.

But while the two counsels may have suffered embarrassment for accepting the brief, there are some key issues that should worry all Nigerians, including the learned justices who were dispensing justice according to our law.

First is, will a reasonable man say that substantial justice was done in the matter? In R vs. Camplin AC. 705 (1978), a reasonable man “means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to except that his fellow citizens will exercise in society as it is today.” I strongly doubt if the hypothetical reasonable man would accept the Bayelsa judgment as serving the ends of justice.

But if I may mimic Cassius in Shakespeare’s Julius Caesar – ‘the fault dear Nigerians is not with our learned Justices, but in our laws, that our judgements sometimes do not do substantial justice.’

As I have argued strenuously on this page previously, the adversarial legal system we practice, do not allow the judges to go beyond the applications made by parties, and the argument proffered by their skilful lawyers, vis-à-vis the provisions of law (including what is commonly referred to as technicalities) to reach their judgments.

For the Judge to go beyond the depositions and arguments in support will amount to a jurisprudential sin on the part of the learned Justice, and the atonement for such sin could include accusation of bias, descending into the arena, or outright accusation of incompetence.

Of course, the atonement for sinning by a judge is more grievous than what the distinguished silks Afe Babalola and Wole Olanipekun are made to pay. For them, the baying public would readily ask for an orderly room trial by the National Judicial Commission, and then dismissal.

As a lawyer and a trained mediator, but more as a mediator, let me hazard what the reasonable man would ordinarily look out for, in the Bayelsa case to achieve substantial justice. Did Degi-Eremienyo forge the certificates he presented to INEC?

If he did, the judgment of the Supreme Court is satisfactory without much ado. If he didn’t and he was merely playing with several aliases in the certificates he presented, will the nullification of his candidature be a fair punishment for swearing a general affidavit, instead of petitioning the relevant institutions and taking steps as they demand, to authentic the results as belonging to one and the same person. Of course, the answer is NO.

Another issue will be whether the ‘sin of the deputy’ should be visited on Chief Lyon, and the majority of electorate who voted for him to be governor? The reasonable man would ask whether Lyon was aware of the ‘infraction’ and sought to gain an advantage by it, to justify the faith that jointly befell the two candidates.

With respect to the majority electorate, the reasonable man would insist they be given another chance to vote in their preferred candidate, as to do otherwise will foist the minority preference, over the majority.

This writer has called for a review of our inherited adversarial legal system, in comparison to the inquisitorial legal system.

Many of those who expected the judges to raise the questions I have identified as a reasonable man’s expectation for a fair outcome, in the courts’ judgement with respect to the Bayelsa State case may be rooting for the Inquisitorial legal system.

According to Wikipedia, it is “a legal system where the court or a part of the court is actively involved in investigating the facts of the case.”

For many, similar sentiments would play out in the Imo State gubernatorial dispute where the Supreme Court allegedly did not bother about the mathematical incongruity of their judgement, since they relied more on what the parties presented, or inadvertently failed to object to, at the material time.

This column will continue to canvass a more indigenous legal system, which will try to offer what the ordinary man in the street who is reasonable, will adjudge as substantial justice. In this season of atonement, is there a way the courts can atone for the disappointments of the ordinary man?

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