Revisiting the Supreme Court decision in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors in light of the decision of Southwark Crown Court in R v Ibori
5/5/2012 6:17:42 PM -
It is not usual for a decision of the Supreme Court to be revisited in view of a decision of the lower court in a foreign jurisdiction albeit one that is a court of record in England and Wales. These peculiar circumstances are what have prompted me to undertake an analysis of these issues. The issues are as follows: could a previous decision of the Supreme Court be reopened sua ponte or sua moto by the court acting on its own accord or motion based on the decision of a lower court in a foreign jurisdiction, is the Supreme Court bound to take judicial notice of the decision of the same foreign court, given the doctrine of stare decisis (judicial precedent) is the Supreme Court to stand upon decisions with overruling itself particular after proceedings have been concluded and are final (res judicata) and whether a foreign conviction obtained in a court of competence jurisdiction has any legal effect in Nigeria.
The decision of the Supreme Court in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors S.C. 63/2005 is surmised by the following remarks by Dahiru Musdapher, J.S.C (as he then was) the case,
an appeal against the decision of the Court of appeal, Abuja Division delivered on 21st day March 2005, wherein the Court of Appeal dismissed the appellants' appeal and affirmed the decision of the trial High Court. The crucial issue is whether the 4th respondent herein, Governor James Onanefe Ibori of Delta State has been properly and adequately identified by the appellants, during the trial in the High Court, as the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995 for the offences of negligent conduct and criminal breach of trust and sentenced accordingly. The matter started this way: On the 28th of September, 1995, the Upper Area Court Bwari FCT in a criminal case No CR-81-95 convicted one James Onanefe Ibori for the offences of negligent conduct and criminal breach of trust under Summary Trial Procedure under the provisions of Section 157 of the Criminal Procedure Code of the former Northern Region of Nigeria, applicable to the Federal Capital Territory, Abuja. The said convict was sentenced to a fine of N1000 or one year imprisonment on the information.
The issue before the Supreme Court in this was whether James Onanefe Ibori then Governor of Delta State was the same James Onanefe Ibori who had been convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995. In his pleading before the Supreme Court and at every stage of the proceedings which commenced by way of Originating Summons brought by the (plantiffs in the High Court and Appellants in the Supeme Court case Engineer Goodnews Agbi and Anthony Alabi) in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbe, Chief Vincent Ogbulafor, Peoples Democratic Party and Independent National Electoral Commission (later struck out as a defendant on the application of the plaintiffs) seeking a declaration that James Onanefe Ibori is by virtue of the conviction aforesaid at Bwari Upper Area Court is not qualified to contest election as the 3rdrespondent's gubernatorial candidate for the 2003 Delta State Governorship Elections. In its decision the Supreme Court affirmed the decisions of the lower courts and dismissed the appeals. I shall not dwell in this discourse on the other allegations made in the face of the court which was widely reported in the media when the Supreme Court delivered its judgement of this case.
In the Queen v. James Onanefe Ibori (Case No. T20117192) on 17 April 2012 at Southwark Crown Court, London before Justice Anthony Pitts having pleaded guilty James Ibori was convicted and sentenced to 13 years imprisonment with a likely release of 17 October 2012 on 7 counts of money laundering contrary to Section 93 of the Criminal Justice Act 1988 and Sections 327, 328 or 329 of the Proceeds of Crime Act 2002, 1 count of Conspiracy to defraud under the Common Law and contrary to Section 12 of the Criminal Justice Act 1987, 1 count of Dishonestly obtaining property by deception contrary to Section 15 of the Theft Act 1963 as amended from 15 January 2007 by the Fraud Act 2006 and 1 count of conspiracy to launder money contrary to the Sections 327, 328 or 329 of the Proceeds of Crime Act 20021 count of forgery - making a false instrument, with the intention to induce somebody to accept it as genuine contrary to Section 1 of the Forgery and Counterfeiting Act 1981. Furthermore the Crown Court at Southwark took judicial notice in the distinguishing features and facts of James Ibori previous conviction in the UK of theft from a Wickes Store Ruislip, Middlesex (where he worked as a cashier) in 1991 and for credit card fraud in 1992, facts which he lied about when standing for public office in Nigeria. The Southwark Crown Court in doing so placed reliance on the submission of learned Counsel for the Crown Ms Sacha Wass Q.C who made copious references to James Ibori's violations of Sections 182 and 185 of the Constitution of the Federal republic of Nigeria (CFRN 1999). The court's stance going at great lengths to rebut the argument advanced by the learned Counsel for the defence Nicholas Purnell Q.C that James Ibori did not violate CFRN 1999 since the Prisoners Rehabilitation of Offenders Act of 1984 nullified such convictions after five years. In the course of this discourse I shall examine the provisions of Sections 182 and 185 of CFRN 1999. Importantly Section 182 of the Constitution is the casus belli of the Supreme Court case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors though curiously there is no express reference to this section in the Supreme Court judgement of this case but as noted in the learned Dahiru Musdapher, J.S.C (as he then was) summary of the case stated above implicit references are made to this section during the course of the proceedings given that this was the rationale for the appellants in initiating the suit in the first place.
The decision in Queen v. James Onanefe Ibori in my view has a significant impact of the 'safety', fairness and the interests of justice given the outcome and decision of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. Given the principles of finality of proceedings (res judicata), stare decisis judicial precedent binding the court, the dispensation and administration of justice rests on the foundation of enduring truth, fairness and equity.
Reopening a previously decided Supreme Court case
The Supreme Court generally in following the doctrine of stare decisis is bound by its previous decisions. This principle of judicial precedent is not unique to our Supreme Court but is a common feature of Superior Courts of record in Common law jurisdictions. It is also related to the principle which ensures that there is a finality of proceedings (res judicata) in the matter that is being adjudicated. This rule that the judgement being final and conclusive having being determined by the court with jurisdiction is however subject to in some cases to certain rare exceptions. Thus under this general rule there are indeed occasions when the Supreme Court departs from being bound by its previous decision.
The exceptions to the Supreme Court from departing from its previous decisions as judicial precedent or in an existing case setting it aside can be done for a number of limited reasons. These include if it is in the interests of justice to depart from such decision, the original and initial decision has been obtained by dishonest and fraudulent means by the parties and the decision was such that if was allowed to subsist and prevail it would have a grave and detrimental impact and effect on the administration and delivery of justice.
These reasons are eloquently expressed in obiter dictum remarks of P. Nnaemeka-Agu J.S.C who delivered the judgment in Francis Asanya and The State (1991) SC.43/1990, 3 NWLR (Pt.180), (1991) 4 SCNJ 1, (1991) 4 S.C 42. The learned P. Nnaemeka-Agu J.S.C reasoning has been the guiding principle of the Supreme Court in respect of previous decisions of the Court.
P. Nnaemeka-Agu J.S.C states that,
"Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per incuriam, and perpetuating injustice."
"This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice." (see at P.31, paras. E - G and Pp. 18-19, paras. G-B)
P. Nnaemeka-Agu J.S.C further stated that previous decisions of the Supreme Court were binding on the court until overruled or departed from. The learned Justice opined that the departing from the previous decisions by the court was not a matter to be lightly embarked upon however the court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per incuriam, and perpetuating injustice. The learned Justice citing the cases of Odi v. Osafile (1985) 1 S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v. Inlaks Ltd. (1980) 8-11 S.C. 1 stated that,
The court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.
This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. (Pp. 18-19, paras. G-B)
The learned Nnamani, J.S.C. also encapsulated these principles in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 (at page 276). In the same case the learned Uwais, J.S.C opined that,
"It is indeed well-settled that this Court does not ordinarily depart from its decision unless it is shown that the decision has over a period of time perpetuated injustice through the doctrine of stare decisis or it has impeded the development of law or it is in fact against public policy or the decision was given per incuriam. (James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 P.35, Paras.D-E)
Similarly the House of Lords in the United Kingdom (UK) now the Supreme Court has included in its (Practice Direction (House of Lords: Preparation of Case)  1 WLR 534) those Appellants seeking to request the court to depart from its own previous decision must draw special attention to it in their appeal. Furthermore in such cases a material change of circumstances must be shown by party making request.
Hence in R v Secretary of State for the Home Department ex p Khawaja (1983), the House of Lords departed from its own previous decision made two years earlier (R v Secretary of State for the Home Department ex p Zamir 1980). The earlier case had put the main burden of proof on an alleged illegal immigrant to show that his detention was not justified. In its decision two years later, the House of Lords expressed the view that the power of the courts to review the detention and summary removal of an alleged illegal immigrant had been too narrowly defined in the 1980 decision. It held that continued adherence to the precedent would involve the risk of injustice and would obstruct the proper development of law. (see Slapper, G. and Kelly, D. (2003) The English Legal System, London, Cavendish, pp. 75--7)
In the widely reported Re Pinochet Ugarte  All ER (D) 18 (also available at http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm) in a rare exception to the principle of res judicata, the House of Lords in its judgment held that the court had the jurisdiction and competence to reopen an appeal though in this case it was not a fault of the parties that the issue of fairness of the trial and the twin principles of nemo judex in sua causa (that a man shall not be a judge in his own cause) and nemo debet esse judex in propria causa which in civil litigation (that no one may be a judge in his own cause) were the rationale of the court in its determination of this case. This case concerned the immunity of the former military head of State of Chile General Augusto Pinochet in respect of serious and grave crimes committed by agents of the state of Chile whilst he was head of State.
Lord Browne-Wilkinson delivering the lead judgement in the review of the initial decision held that,
In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. In Cassell & Co. Ltd. v. Broome (No. 2)  A.C. 1136 your Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point.
The circumstances that warranted the reopening of Re Pinochet Ugarte in which the House of Lords upon application of one the parties (the appellant - Pinochet) to set aside the order of the court is somewhat similar to what in my view what the Supreme Court should do in the case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. It is pertinent to note that procedurally the main instruments of law governing the rules and procedures of the Supreme Court namely Sections 230 - 236 CFRN 1999, the Supreme Court Rules and the Supreme Court Act does not foresee that the Supreme Court set asides an order it has made in the same case. However the decision of the House of Lords as seen in Re Pinochet Ugarte is persuasive in this regard given that whilst there are no exact precedents the Supreme Court does have inherent jurisdiction to set aside its own orders where the conditions discussed exist as in this case and more so as the apex court of the land no other court could correct such order.
Importantly Order 10 of the Supreme Court Rules which states, '1. (1) The Court may, where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof' is applicable should the Supreme Court decide in exercising its inherent jurisdiction to reopen the case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors.
Effect of Chief Ibori's previous convictions and Section 185 (1) CFRN 1999
It is crystal clear from the conviction of Chief Ibori that the requirements of Section 185 (1) CFRN 1999 were not fully compiled with. Section 185 (1) Declaration of assets and liabilities; oaths of office of Governor states inter-alia,
A person elected to the office of the Governor of a State shall not begin to perform the functions of that until he has declared his assets and liabilities as prescribed in the Constitution and has subsequently taken and subscribed the Oath of Allegiance and oath of office prescribed in the Seventh Schedule to this Constitution.
It is self-evident from the Prosecution's case in the trial of Chief Ibori that there was manifest and material violation of the provisions of Section 185 (1) CFRN 1999. Furthermore Chief Ibori reliance of the Rehabilitation of Offenders Act 1984 Chief Ibori was flawed and defective as this Act was a foreign act not applicable in Nigeria and the requirements under Section 185 (1) allow for no exemptions as relied upon by Chief Ibori.
The issue of Chief Ibori's previous convictions in the UK as noted in his criminal trial was not an issue before the Supreme Court in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. This is particularly odd because Chief Ibori maintained in the Supreme Court case that he was not the person alleged to have been convicted as claimed by the appellants in the Supreme Court. Whilst Chief Ibori's character was not an issue but whether he was the person convicted as claimed by the appellants in the Supreme Court it is respectfully submitted that whilst relying on this defence that he was not the person convicted as alleged by the appellants he had knowledge which he had no time admitted when he filed his nomination papers to the Independent National Electoral Commission (INEC) that he was previously convicted on two occasions in the UK. It is for this reason that the provisions of Section 182 (1) (d) CFRN 1999 should be carefully examined in light of whether Chief Ibori was qualified to be Governor of the state of Delta. This was the position of the prosecution during his criminal trial which the Crown Court at Southwark broadly concurred with.
Section 182 (1) (d) stipulates that,
(1) No person shall be qualified for election to the office of Governor of a State if -
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal;
These provisions expressly state that a person handed a sentence of imprisonment upon conviction for any offence involving dishonesty or fraud or any other offence imposed on that person by the court. It is now on record that Chief Ibori was convicted for theft offences in the UK between 1991 and 1992 a fact not known to the Supreme Court and not disclosed by Chief Ibori to INEC. It is in my humble view in this case that the non-disclosure by Chief Ibori to INEC significantly undermined the strength of the case of the appellants in the Supreme Court case. Furthermore taking into cognisance the legal maxim 'he who comes to equity must come with clean hands' the defence of Chief Ibori in the Supreme Court case that he was not the person alleged to have convicted as claimed by the appellants is now questionable and credible given what was disclosed during the criminal trial in London. In fact Chief Ibori's previous convictions in the UK were only for the first time now a matter of public record as judicially noticed by Southwark Crown Court, facts not denied by Chief Ibori.
Furthermore whilst Chief Ibori in his defence at his criminal trial had argued that his UK convictions of 1991 and 1992 were indeed spent pursuant to the Rehabilitation of Offenders Act 1984 that does not impinge his violation of the provisions of Section 182 (1) (d) CFRN 1999. The defence was not only given short drift by the learned Justice Pitts at Southwark Court but the provisions of Section 182 (1) (d) strictly do not allow for such an exemption particularly if it is argued where the evidence of the conviction known by the person subject to this section had failed to disclose it on a number of occasions when he had the opportunity to do so. As evident in Chief Ibori's case, firstly to INEC when he filed his nomination documents submitted as part of the requirements for contesting elections for the Governorship of the state of Delta and Secondly the non-disclosure of the existence of these facts during the course of the proceedings in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. Unusually in this case Chief Ibori did place on reliance on the provisions of Section 308 the infamous immunity clause which restricts legal proceedings being instituted in civil and criminal matters against the President or Vice-President, Governor or Deputy Governor during the period they are in office. Chief Ibori was then Governor of the state of Delta during the course of these proceedings in 2005 and 2006. It is respectfully submitted that this calls into question the reliance of the evidence adduced during the course of the proceedings in the Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. The fact that the convictions and sentence of imprisonment may have been imposed abroad is immaterial given the said provisions of Section 182 (1) (d). The interpretation of Section 182 (1) (d) in respect of its meaning as defined in law particularly Sections 225 and 226 of the Evidence Act which I shall examine in detail below also refers to sentence of imprisonment for a conviction imposed in Nigeria or abroad.
The procedure for providing evidence of previous conviction in Nigeria is set out in Part XI of the Evidence Act particularly Sections 225 and 226 which provides inter-alia,
Evidence of previous conviction
225. (1) Where it is necessary to prove a conviction of a criminal offence the same may be proved -
(a) by the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record of the said conviction;
(b) if the conviction was before a customary court by a similar certificate signed by the clerk of court or scribe of the court in whose custody is the record of the said conviction; or
(c) by a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and the sentence.
(2) If the person alleged to be the person referred to in the certificate denies that he is such person the certificate shall not be put in evidence unless the court is satisfied by the evidence that the individual in question and the person named in the certificate are the same.
(3) (a) A previous conviction in a place outside Nigeria may be proved by the production of a certificate purporting to be given under the hand of a police officer in the country where the conviction was had, containing a copy of the sentence or
order and the finger prints of the person or photographs of the finger prints of the person so convicted, together with evidence that the finger prints of the person so convicted are those of the accused person.
(b) A certificate given under paragraph (a) of this subsection shall be prima facie evidence of all facts therein set forth without proof that the officer purporting to sign the same did in fact sign it and was empowered so to do.
226. (1) For the purposes of this section "the central registrar" means the person in charge of the principal registry of criminal records established under the provisions of the Prevention of Crimes Act.
(2) A previous conviction may be proved against any person in any criminal proceedings by the production of such evidence of the conviction as is mentioned in this section, and by showing that his finger prints and those of the person convicted are the finger prints of the same person.
(3) A certificate -
(a) purporting to be signed by or on behalf of the central registrar; and
(b) containing particulars relating to a conviction extracted from the criminal records kept by him or a photographic copy certified as such of particulars relating to a conviction as entered in the said records; and
(c) certifying that the copies of the finger prints exhibited to the certificate are copies of the finger prints appearing from the said records to have been taken from the person convicted on the occasion of the conviction,
shall be evidence of the conviction and evidence that the copies of the finger prints exhibited to the certificate are copies of the finger prints of the person convicted.
(4) A Certificate
(a) Purporting to be signed by or on behalf of the superintendent of a prison in which any person has been detained in connection with any criminal proceedings or by a Police officer who has had custody of any person charged with an offence in connection with any such proceedings: and
(b) certifying that the finger prints exhibited thereto were taken from such person while he was so detained or was in such custody as aforesaid,
shall be evidence in those proceedings that the finger prints exhibited to the certificate are the finger prints of that person.
(5) A certificate
(a) purporting to be signed by or on behalf of the central registrar; and
(b) certifying that -
(i) the finger prints, copies of which are certified as aforesaid by or on behalf of the central registrar to be copies of the finger prints of a person previously convicted, and
(ii) the finger prints certified by or on behalf of the superintendent of the prison or the police officer as aforesaid, or otherwise shown, to be the finger prints of the person against whom the previous conviction is sought to be proved, are the finger prints of the same person,
shall be evidence of the matter so certified.
(6) The method of proving a previous conviction authorised by this section shall be in addition to any other method authorised by law for proving such conviction.
The Procedure set out above is relatively straight forward and in fact self-explanatory. A cursory reading of the judgment of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors would note that this procedure was neither sought nor raised by the appellants in that case. This regrettably in my view was a grave error because crucially the facts in issue in that case rested on satisfying the court and providing the evidence of the previous conviction on James Ibori as provided for in the procedure set out above in Sections 225 - 226 of the Evidence Act. Indeed the said procedures are simple enough and should not be cumbersome nor bogged down with technicalities in proving nay or yay as to whether the record of a conviction exits. In the eyes of the law you either have a conviction or not. The facts on record in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors provide ample evidence based on the preponderance of the same submitted to the court that this existed. More so the procedure set out above are also applicable in proving the evidence of convictions and sentence imposed by a foreign court and tribunal.
Technicalities should not impede the administration of Justice
The administration of justice invariably rests on the premium placed by the public in trusting the courts in dispensing justice. The erosion of public trust in the administration of justice has in recent times always been a feature highlighted by our learned Justices. The pursuit of justice by litigants, the administration and dispensation of justice should not be bogged down by unnecessary technicalities when the facts in the issue and the application of the law are crystal clear. Recently the learned Honourable Dahiru Musdapher, Chief Justice of Nigeria (CJN) quoting the 19th Century French novelist and playwright Honoré de Balzac opined that, 'the lack of public confidence in the judiciary is the beginning of the end of society". The learned CJN further stated that,
The public's perception of our propriety and the system we represent must be that of respect and admiration. We must consistently perform our judicial functions in a manner that would not erode the public's belief that those saddled with the responsibility of redressing wrongs done unto them are beacons of fairness, equity, competence, propriety and justice.
Similarly, we are deeply concerned that irrespective of concerted efforts to stem the tide, most cases are still decided on the raw basis of technicalities rather than the substantive issues placed for determination. Procedural laws are meant to regulate the conduct of proceedings and ensure that the process for the attainment of justice is fair and equitable.
Therefore, the strict application or invocation of these rules cannot be allowed to stand on the path of substantial justice. I hereby urge all Judges to realize that stringent application of procedural rules and technicalities that do not lead to the attainment of substantial justice is clearly against modern perceptions of justice. This reality is akin to observing table manners and still rising from dinner with an empty stomach. This trend must be reversed. (Honourable Dahiru Musdapher, CJN speech delivered on 19 September 2011 at the Special Session of the Supreme Court to mark the commencement of the new legal year).
In a similar vein the judgment of the Supreme Court delivered by Niki Tobi. J.S.C. in Muyiwa Inakoju, Hon. Fajimi Sikirulahi Adekunle, Hon. Fashola Emmanuel Olubowale, Hon. Salawu Kehinde, Hon. Ayilara Kazeem, Hon. Abiola Ayorinde, Hon. Akinrinade Oyewale, Hon. Jelili Adeleke, Hon. Isiaka Adeola, Hon Lekan Ganiyu, Hon.Ogunremi Mufutau, Hon. Lawal Dauda Ademola, Hon. Taiwo Oluyemi, Hon. Olu Oyeleye, Hon. Ajadi Olateju, Hon. Esuola Hamed Babatunde, Hon. Atilola Morufu Olawale, Hon. Akanbi Idowu and Hon. Abraham Adeolu Adeleke, Hon. Barrister Titilayo Ademola Dauda with Senator Rashidi Adewolu Ladoja (S.C. 272/2006) 12 January 2007 citing the obiter dictum of the learned JSCs Idigbe, Nnamani and Iguh in other cases stresses the importance of ensuring that justice prevails over technicalities in proceedings before the Supreme Court. In that case the Supreme Court states inter-alia,
In Attorney-General of Bendel State v. Attorney-General of the Federation (1982) 3 NCLR 1, Idigbe, JSC, said at page 64:
"I incline to the view that in suits calling for decisions on issues relating to the Constitution this court ought not unduly to allow technicalities to deter it from making vital pronouncements."
Nnamani, JSC, added at page 109:
'If the plaintiff is entitled to be heard by this court how he comes to be heard may be immaterial. I do not agree that in a complex suit such as this touching on matters which lie at the very foundation of the stability of this country this court should be unduly bogged down by technicalities. This court has in many recent decisions, while affirming the importance .of observance of Rules of Court, stated that it is more concerned with doing substantial justice between the parties."
With the above parenthesis, I take the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453 where Iguh, JSC, said at pages 471 and 472:
"I should perhaps mention in the above regard that this court for quite some time now has consistently shifted away from the narrow technical approach to justice which characterised some earlier decisions of courts on various matters and now pursues, instead, the course of substantial justice. Accordingly, courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice."
Good law, in my opinion, must have a human face. Good law should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities such as the one canvassed by the learned Senior Advocate for the appellants that the case should be remitted to the trial Judge for trial on the so-called merits of the case, when I know that the matter will never be concluded before the 29th May, 2007 when the office of. Governor will be filled. Good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all. After all, it is good law that courts of law do not give 'orders in vain and in the context of this case, an order given after 29th May, 2007 restoring the 3rd respondent to his office of Governor, will certainly be in vain. I will never be a party to such a tall order which has teeth but cannot bite. Teeth that cannot bite are useless to their owner.
It is apparent on the face of the facts and indeed the law that the decision of the Supreme Court in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors is not safe and is a miscarriage of justice in light of the decision and outcome in Queen v. James Onanefe Ibori. The Supreme Court in the interests of justice should on its motion (sua moto/sua ponte) reopen the case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors and revisit its decision in the same by remitting the case back to the High Court of the FCT being the court with original jurisdiction where the originating Summons was instituted by plantiffs in the High Court and Appellants in the Supeme Court case, Engineer Goodnews Agbi and Anthony Alabi. In doing so the Supreme Court would ensure that justice prevails over technicalities and that where there is a manifest intention to subvert the outcome and dispensation of justice by a party irrespective of how long this has occurred as soon as this is brought to light it is remedied by the court to avert the wrong suffered by the party at loss. Such act by an erring party amounts to perverting the course of justice for which there is a separate offence under our laws. However in revisiting this case the Supreme Court would be enhancing the public's trust in the administration of justice and that no matter how long it takes the court in cases where it is compelling to do for the reasons set out above including manifest fraudulent intention by the parties, perpetuating an injustice, to overcome undue technicalities and on public policy grounds the Court can set aside and discharge its judgement in a previous matter whose judgement is final.
Omoba Oladele Osinuga Esq. Solicitor and Advocate Supreme Court of Nigeria, International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe writes from Dagenham, Essex UK.
Omoba Oladele Osinuga Esq.