The Limits of the Sub Judice Rule By Onikepo Braithwaite

Definition of Sub Judice

Lately, the term ‘Sub judice’ has been flying around. It is actually pronounced ‘sub-joo-di- see’, and not ‘sub-joo-diss’ as Nigerians love to mispronounce it! It’s a Latin term which simply means, ‘under judgement’. Black’s Law Dictionary defines the term as, “Before the Court or Judge for determination”.

The First Leg of the Definition

The concept of sub judice has at least two legs to it (possibly more). Firstly, it prohibits the filing of a multiplicity of suits between the same parties on the same subject-matter – aka Forum Shopping! That is, when a matter is already before a court, the same matter should not be filed in another court, since it’s already sub judice. For one, it could result in conflicting decisions, which will do nothing more than cause confusion. This is an abuse of court process. In Okorodudu v Okoromadu 1977 3 S.C. 21, the Supreme Court cited the institution of a multiplicity of actions on the same subject-matter, against the same opponents on the same issues before one or more courts of competent jurisdiction, as an abuse of court process. Also see the case of Minister for Works v Tomas (Nigeria) Ltd 2002 2 N.W.L.R. Part 752 Page 740. Since the clamp down on forum shopping closer to the end of the tenure of the former Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad, GCON, the incidence of forum shopping seems to have reduced. The LPPC also sanctioned some Senior Lawyers, for partaking in forum shopping. During the season of the last general elections in 2019, the sub judice rule in that regard was breached with reckless abandon, as forum shopping was the order of the day.

The Second Leg of the Definition

Another leg of the concept of sub judice has to do with commenting on a case in court, in a manner that will either bring the court into disrepute or prejudice or undermine the court proceedings. See the case of Bello v AG Lagos State & Ors (2006) LPELR-7585(CA) per Clara Bata Ogunbiyi, JCA (as she then was). This other concept of the sub judice rule was formulated in 1742 by Lord Chancellor Hardwicke in the St James’s Evening Post case, in which two newspapers that published libellous articles claiming that a witness in an active case committed perjury, their action was described as a contempt of court “in prejudicing mankind against persons before the cause is heard”.

Our Own Sub Judice Rule: Section 33 of the Rules of Professional Conduct

Last week, we published a news story in which learned Senior Advocate and former NBA President, Dr Olisa Agbakoba, urged Lawyers to refrain from conducting media trials on ongoing cases, particularly President Bola Tinubu’s CSU matter which is now before the Supreme Court. However, contrary to Dr Agbakoba’s admonition, it appears that our own sub judice rule which is covered by Section 33 of the Rules of Professional Conduct for Legal Practitioners 2023 (RPC), is only directed at restricting Counsel who are trial Lawyers in the matter being publicised, and not all Lawyers or the general public, and prohibiting them from making extra-judicial statements “calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with the fair trial of the matter or the judgement or sentence”. The purport of this is that, fair comments by all, including trial Counsel, are allowed on an ongoing case, and what is not permitted is when trial Counsel make prejudicial or harmful extra-judicial statements, or those that can interfere with the fair trial of the matter, or are untoward like in the St James’s Evening Post case or in the current case of Atiku Abubakar, Peter Obi & Ors v Bola Ahmed Tinubu & Ors. In Akomolafe v Guardian Press Ltd 2004 1 N.W.L.R. Part 853 Page 1 at 17-18 per Aderemi, JCA, the Court of Appeal stated that fair comments are simply opinions on matters of public interest, but for it to be a viable defence they must be correctly and fairly stated, based on truth. If we were in the UK, Commentators would possibly have faced ex facie curiae contempt charges, while many Lawyers would have faced sanctions from their Disciplinary bodies for many of their unacceptable extra-judicial statements bringing the courts into disrepute, as well as contempt charges. In Nigeria, aside from trial counsel, there doesn’t seem to be much control on extra-judicial statements made by others, whether prejudicial, damaging (to the Judiciary) or even false.

The case of Atiku Abubakar, Peter Obi & Ors v Bola Ahmed Tinubu & Ors, is obviously a matter of serious public interest, and if my memory serves me right, the Petitioners’ Counsel had applied that the court proceedings be broadcasted live, an application which was refused by the PEPT. Nevertheless, the Petitioners’ Counsel still held press conferences after every Tribunal sitting, publicising the court proceedings, and also those pertaining to the CSU matter in USA even before any documents were obtained, thereby inviting Lawyers and the public to open debates and discussions on the case, and at the same time heating up the polity. One doesn’t have to be Einstein to conclude that, all this was orchestrated to prejudice and prejudge the matter, and put the Judiciary under pressure. For good measure, one of the authorities stating the conditions under which fresh evidence can be introduced on appeal, to create the wrong impression in the public eye that a court ‘has to’ admit fresh evidence (to obviously aid the Petitioner’s position in the CSU matter) was also circulated, that is, the case of Uzodinma v Izunaso (No. 2) 2011 17 N.W.L.R. Part 1275 Page 37. The actions of the Petitioners’ Counsel appear to be a breach of Section 33 of RPC, and by virtue of Section 74(1) thereof, amounts to professional misconduct punishable under Section 11 of the Legal Practitioner’s Act (LPA) (also see Sections 12 & 13 of the LPA). Additionally, the Petitioners’ legal team, even if it’s indirectly, have in more ways than one, facilitated the undermining of the PEPT proceedings, by enabling supporters and even the Petitioners themselves in making prejudicial statements and inciting the public against the Judiciary, as if to constrain the PEPT and now the Supreme Court to find for them, whether or not there are grounds to do so, now using this new American angle which appears to have no leg to stand on in our own jurisprudence as their weapon, and seems to be more like a tool of scandal and spreading odium and opprobrium instead. They really opened the doors, to the desecration of the Judiciary. Last Friday, former USA President, Donald Trump, in his civil fraud case, was held in contempt and fined €4701.17 for violating a gag order by insulting a court staff on social media. In his upcoming trial for conspiracy to upturn the 2020 election, the trial Judge in that case has also placed gag order on Trump, ordering him not to publicly attack Prosecutors, court staff or potential witnesses ahead of the trial. We have had many attacks on the credibility of our Judiciary, since the inception of the Presidential Election Petitions case.

Our own sub judice rule appears to be a derogation provided for in Section 45 of the 1999 Constitution of Federal Republic of Nigeria (as amended in 2023)(the Constitution), from the right to freedom of expression (Section 39(1) of the Constitution), but only pertaining to trial Lawyers handling the cases making prejudicial extra-judicial statements. Also see Section 39(3) of the Constitution.

How Necessary is the Second Leg of the Sub Judice Rule in Nigeria?

How necessary is the sub judice rule pertaining to comments on an ongoing case, in a country like ours where we have trained judicial officers to hear and determine cases, as opposed to countries that have Jurors who are laymen untrained in the law, and can easily be swayed by public opinion? The fact that laymen make judicial decisions as Jurors, may be the reason why the sub judice rules in those climes are more expansive than ours. One definition of sub judice which I found in the Oxford Reference seems to point to the fact that the sub judice rule may be more geared towards a jurisdiction with a jury setting, as it states thus: “A rule limiting comment and disclosure relating to judicial proceedings, in order not to prejudge the issue or influence the jury”. In Nigeria the words from trial Counsel have to be prejudicial, that is, harmful, in other climes, even if it is the correct position, as long as it prejudges the matter or influences the Jury, it appears that it is not permitted. In fact, in USA, sometimes Juries are sequestered during the trial, and not allowed access to any form of media.

Some may also argue that the rule is unnecessary, because any judicial officer worth his/her salt knows that there are laid down rules for delivering a good judgement; and so, whatever the public or even Lawyers who make a habit of conducting media trials on matters of public interest say, or even extra-judicial statements by trial Lawyers doubling as media trial Lawyers, should not matter. Truth be told, only a Lawyer having a bad day in court, particularly in a public interest case, would probably want to make harmful extra-judicial statements, to try to garner support from the unknowing public, knowing that they do not have the support of the law. It s trite law that a court can only decide a matter based on the admissible evidence placed before it, and not what media trial Lawyers or others say. In Mbani v Bosi & Ors (2006) LPELR-1853 (SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN), the Supreme Court held that the important element of a good judgement, is that it is a correct judgement based on the law and fact. Issues must be well distilled, evidence adduced properly evaluated, clear findings of facts made, and the law properly applied to arrive at the correct decision. See the case of NEPA v Ososanya 2004 5 N.W.L.R. Part 867 Page 601. Pleadings, and not the half truths that the public, including media Lawyers run with, should be the first port of call for a judicial officer on the road to handing down a good decision. The principle of ‘Stare Decisis’ is also there, as a guide.

Conclusion

My point? A good Judge who follows the laid down rules for delivering a good judgement, would not let external media trials prejudge a matter he/she is adjudicating upon or prejudice the judgement. However, I am sure that many of us will agree with that, in the present case of Atiku Abubakar, Peter Obi & Ors v Bola Ahmed Tinubu & Ors, whether the 1748 British sub judice rule or our own Section 33 of the RPC version, the rule has been breached in all its ramifications – with gusto, aplomb and relish. Caution has been thrown to the wind, and all kinds of comments, whether from the Petitioners’ Counsel or their proxies, or other Lawyers or the general public, or even the Petitioners themselves, whether appropriate and inappropriate, have been made concerning this matter that is now before the Supreme Court or under judgement.