From Naira Redesign To Akpabio And Lawan/Machina Viewpoints: The Fine Line Between Critiquing And Crucifying The Supreme Court
By Joe-Kyari Gadzama OFR, MFR, SAN
“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.” ……Lord Denning.
ALL THE PERSPECTIVES:
No sooner the Supreme Court delivered judgment on the 20th of January, 2023, restoring former Akwa Ibom State Governor, Godwin Akpabio as the senatorial candidate of the All Progressives Congress (APC) than it delivered another judgement on the 7th of February, 2023 affirming the Senate President, Ahmad Ibrahim Lawan as the Senatorial candidate of the APC for Yobe North Senatorial District. The public and legal community has since gone berserk, and for diverse reasons.
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Some are baffled and perplexed as to how failed presidential aspirants like Mr Akpabio and Mr Lawan were granted senatorial tickets by the Supreme Court despite the fact that they did not participate in the primary elections for those positions in their Senatorial Districts. Those in this class have wondered and argued vehemently that the Supreme Court’s decisions have set a bad precedent and gravely violated the provisions of Section 115(d) of the Electoral Act 2022, which states that candidates cannot be nominated for two elections at the same time. They are adamant that the substantive justice of these cases before the Supreme Court was overlooked and glossed over, and that much more is expected of the Supreme Court than adherence to technicalities, form and precedents.
Some, in this class, have been harshly critical in the most repulsive of languages. They have referred to the Supreme Court as “bandits,” “hooligans,” and “ridiculous,” to say the very least. And these remarks have been interpreted as contemptuous, casting a negative light on the Supreme Court.
On the other hand, some see the Supreme Court’s judgements as worthy of praise, and that the comments directed at it are misguided, especially when viewed through the lens of the law. The Supreme Court had simply ruled on the merits of the cases presented to it. The main point of this school of thought is that, while Mr. Bashir Machina was perfectly within his rights to seek redress for any perceived wrong, the substance of Mr Machina’s complaint deals with fraud and should have been instituted through Writ of Summons rather than Originating Summons as was done. While the Federal High Court Practice Direction states that Pre-Election matters must be instituted through Originating Summons, the Supreme Court has held in a number of cases that the rules of court supersede practice directions and that an allegation of fraud must be instituted through a writ of summons. They have argued that the Supreme Court, not being a “Father Christmas” had merely evaluated the case as presented before it and decided accordingly.
While all these views have been informed by different considerations, this piece has become necessary in light of the unsavoury commentaries against the Supreme Court. The legal profession, especially the Bar, has an obligation to protect the Bench; the Bench and Bar have an equal duty to uphold the cause of justice, at all times. There is therefore a need to strike an equilibrium within permissible bounds.
IS THE SUPREME COURT INFALLIBLE AND CAN IT BE CRITIQUED?
To directly answer this question, I will invoke the words of the legal sage Hon. Justice Chukwudifu Akunne Oputa, J.S.C., who said this while delivering the leading judgment (to which Obaseki, Nnamani, Karibi-Whyte, and Agbaje, JSC all agreed) on Friday, May 19, 1989 in the popular case of ADEGOKE MOTORS LTD v. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (pt 109) 250 at 274; (1989) 5 S.C 113 at 129:
“My simple answer is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts. We are final not because we are infallible; rather we are infallible because we are final”
This highlights the fact that, like all humans, the Supreme Court, which is made up of some of the best legal minds, is prone to mistakes. Only God, the Almighty, can unquestionably claim to be infallible. Hon Justice Ibrahim Muhammad, the former Chief Justice of Nigeria (CJN), has admitted as much. On October 22, 2019, it was reported in a Press Release signed by the Supreme Court’s Director of Press and Information, Festus Akande, that Hon Justice Ibrahim Muhammad had stipulated that every right-thinking and serious-minded judge should cultivate the culture of patience and acceptability so that they do not mistake themselves to be an infallible repository of knowledge and wisdom. In essence, Supreme Court Justices are human beings who also make mistakes.
While admitting that the Supreme Court is not infallible, is it permissible for every Tom, Dick, and Harry to lampoon the Supreme Court in the most uncharitable of terms under the guise of criticism? Is the Supreme Court above reproach? If not, when is it morally permissible to criticize the Supreme Court? I’ll try to answer these questions broadly.
The legal profession is conservative and predominantly regarded as a noble one. The language of the average lawyer is moderate and temperate. It is measured and respectful. It is considerate. And in disagreeing with the Court, the lawyer is respectfully expected, even while a ruling or judgment is staked against him, to receive same with a ting of “As the Court Pleases”.
The lawyer’s language is never rude, condescending, or disrespectful of the Court. This is for good reason. The Bench is a symbol that extends beyond its occupant. It makes no difference whether we like or dislike the occupier. It is an institution that must always be clothed in the necessary authority for the administration of justice. As a result, when we bow in court, it is not to the occupier as a form of worship, but to the temple and institution of justice itself. As a result, it portrays danger when we approach such revered institutions with contempt, condescension and opprobrium.
Respect cannot be expected unilaterally, I must admit. It must be reciprocal and commanded, but never demanded. While the lawyer has an obligation as a minister in the temple of justice to express constructive criticism of the hallowed chambers, this latitude should never be misinterpreted as a license to spew gibberish and contemptuous adjectives at the Apex Court. There are restrictions, just as there are with the constitutional right to free speech. Freedom of expression does not allow for mudslinging. We have a responsibility to act responsibly and to respect the rights of others.
WHEN DOES IT BECOME A MORAL OBLIGATION TO CRITIQUE THE JUDGMENTS OF OUR COURT?
Because our courts are not infallible, it is morally required to criticize those judgments that contain obvious errors in order to better and improve our legal jurisprudence. May the day never come when we persevere in error all for fear of being wrong.
In recognition of this possibility, the Supreme Court has the vires to overrule itself in a subsequent appeal and may do so in some instances and upon the fulfilment of certain conditions, though stringent and uncommon. The case of Stanbic IBTC Bank Plc v L.G.C Ltd (2020) 2 NWLR (Pt 1707), is a reference point. In this case, the Supreme Court Per Abba Aji held inter alia that it has the power to set aside its judgment and can do so under certain conditions. These conditions include:
- Where there is a clerical mistake in the judgment or order;
- Where there is an error arising from an incident slip or omission;
- Where there arises the necessity for carrying out it own meaning and to make its intentions plain;
- When any of the parties obtain judgement by fraud or deceit;
- Where such decision is a nullity;
- Where it is obvious that the court was misled into giving the decision under a wrong belief that the parties consented to it;
- When the judgement was given without jurisdiction;
- Where the procedure adopted was such as to deprive the decision or judgement of character of a legitimate adjudication;
- Where the writ or application was not served on the other party or there is denial of fair hearing;
- Where the decision is contrary to public policy and will perpetuate injustice
Be the above as it may, the decisions in Lawan/Machina and Akpabio cases stand and must be obeyed. The Supreme Court may have the opportunity of setting aside the principles therein in a subsequent and distinct appeal.
THE NEED FOR A BALANCE:
And so, while it may be permissible to critique the judgments of the Supreme Court where one of the above conditions or instances, as listed in the case of Stanbic IBTC Bank Plc v L.G.C Ltd (Supra) exists, in the hope of the Supreme Court setting aside its principles in a subsequent and distinct appeal, the lawyer is a master in the use of the language of his craft and should exercise restraints. He must be respectful of the very institution before which he plies his trade. He must respectfully disagree for good and verifiable reasons. The lawyer must strike a balance between his duty of upholding and protecting the Bench and his moral obligation of critiquing the judgements of the hallowed institutions, with some level of circumspection, and ultimately for the development of our legal jurisprudence and attainment of the cause of justice.
We must continually do what has never been done. It is the only way to go in improving our legal literature and jurisprudence. And just like Lord Denning had admonished, if we never do anything which has not been done before, we shall never get anywhere. Our laws will stand still whilst the rest of the world goes on: and that will be bad for both.
Joe-Kyari Gadzama, OFR, MFR, SAN is the President of Vox Populi Foundation, Chairman Mentoring Committee of the Body of Benchers for Young Lawyers. He is also the Pioneer Chairman, NBA – Section on Public Interest and Development Law (2006-2010).
He can be reached via gadzama@j-kgadzamallp.com
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