Atiku, Obi vs Tinubu : Where Is Sub-judice In Nigeria By Omotayo Ishola

The Chief Justice of Nigeria, Justice Olukayode Ariwoola, spoke the mind of many in articulate expression of scholars and legal purists on the October 4, 2023 at the swearing in ceremony of newly appointed judges of federal high court. He said among others: “court decisions are not on public opinions but law.”

It could have been otherwise because public opinion for whatever merit in them are always conflicting, recondite, inchoate and at best sentimental feelings at their best. Obviously his lordship must be concerned about the spate of criticisms hauled on the judiciary for its decision since the birth of this republic, more particularly arising from the electoral outcome of February 25, 2023 presidency in particular!

In the process, the main combatants, the petitioners, Atiku Abubakar and Gregory Peter Obi, have been ventilating their grievances more often on the platform of press conferences with their acolytes in both traditional and social media fanning embers of intimidation undue influence, blackmail and subtlety on the judicial officers, in other words writing judgement according to the fancies of their sentiments.

The shenanigans invite a poser: where is the law of ‘sub-judice’ in Nigeria jurisprudence? Has it taken a flight? This issue becomes all the more enervating and worrisome when the protagonists of these informal infractions are leading politicians, leading journalists and leading legal practitioners, some of them of the silk ranking! To be sure, both Atiku Abubakar and Obi are entitled to their rights to seek the mandate of the people to the highest office in our clime!

They equally have the right of first refusal to ventilate their adjudication even to the “privy council” or “ICJ” had our extant laws permitted them. But there are so many legal maxims that preclude them from one hand seeking adjudication and on the other hand by subtle maneuver to tilt the hand of justice towards them by subterfuge!

This is the only basis for addressing press conferences to win sympathy while their proposed further and better evidence is before their Lords at the Supreme Court of Nigeria, the apex court! While Atiku and his co-travellers may be excused not on the point of law because as the saying goes ‘ignorantia legis neminem excusat’ ignorance of the law excuses no one but ‘ignorantia facti excusat: ignorantia juris non-excusat’ to wit ignorance of fact excuses, but not of the law.

What of so many legal pundits commenting on the issue before the adjudication at the apex court of Nigeria, politics? Sentiments? Bigotry? or audacity?

In the run-up to the presidential election, a legal activist, Olisa Agbakoba (SAN) undoubtedly, a luminary at the bar raised an issue which he thought was capable of rocking up the electoral contest on 25 percent of votes cast in Federal Capital Territory Abuja, inclusive among other requirements. With due respect to the learned silk, neither the forum nor the timing of the statement were in accord with public morality expected of his experience and dexterity at the bar! A recourse to the past may be helpful.

The late federal Attorney General and Minister of Justice (1979-1983), Chief Richard Osuolale Abimbola (SAN), aka mister 12 ⅔ was a member of 49-wisemen that drafted our 1979 constitution and equally a member of the constituent assembly that eventually ratified the same constitution 1977/78.

By the hindsight of his reminiscences after the slugfest of 1979 election and subsequent litigations, he said he had held the view that of 19 was 12 ⅔ ⅔though some members of the draftsman held contrary opinions. He said he waited for an opportune time which was the tribunal to ventilate his iron-cast view on the mathematical equation of the states at the material time. His view on the subject found approval with members of the tribunal and at the supreme court.

Chief Akinjide (SAN) might not be your favorite politician having regard to his political constituency which was always at variance with people of his western region though he recanted in the autumn of his life, but as a legal practitioner he was a master of polemics, logic and cross examination diktat one would have expected the learned Olisa Agbakoba to raise the issue at tribunal for one of the petitioners rather than casting public hysteria in the public domain.

Another wizard of the law who was able to keep his head above the politics of the moment in sensitive times was the late Chief Frederick Rotimi Alade Williams Qc, SAN, ‘Timi the law’. As the chairman of the constitution drafting committee, grapevine information limited to the effect that he believed ⅔ of 19 was 13 and not 12 ⅔.

This position was reinforced in the various correspondence of CDC, FEDECO and other agencies before the conduct of the 1979 presidential election. Competent sources indicated that it was because of the opinion of Chief Williams (SAN) on the subject, that he was dropped in the consideration of CJN in 1978. At the exit of Alexander Darnley CJN, the net of succeeding appointees was widened to both the bar and the bench including the hierarchy of the Supreme Court justices.

The source indicated the trio of late justice Udo Udoma, who presided under the constituent assembly, Justice Fatai Williams who was later to be the beneficiary and Chief Rotimi Williams were shortlisted. It is a matter of statesmanship and legal morality that chief Williams never voiced out his opinion throughout the second republic on 12 ⅔ he appeared neither for the petitioner nor the respondents. As a leading legal practitioner and public intellectual of the period he never ventilated his views on this in so many public speeches till his eventual demise.

There are always ‘forum conveniens’’ and ‘forum non conveniens’ for expression of legal thought on issues of public interest and the convenient forum is in the legal constituencies and its allies.

Examples are very legion! In 1980, a commonwealth laws conference was held in Lagos under the ages of Alhaji Shehu shagari presidency (1979-1983) with Chief R.O.A Akinjide (SAN) as his attorney general and minister of justice. One of the papers that drew sensational interest was the one at the instance of a former attorney general, Chief Nabo Graham Douglas (SAN), the attorney-general (1976-1978). In the said treatise captioned: Public policy, public interest, public opinion as judgement producing factors.

Awolowo vs Shagari as a case study, the learned federal attorney general sought to illuminate his audience that these factors are ingredients of judgement and that these factors carried a lot of weight in the determination of Awolowo vs Shagari. He narrated that the transitioning military government having made elaborate arrangements to step down from the reins of power culminating in the conduct of presidential election in August of that year; it would be absurd if the Supreme Court decided in favour of the petitioner, for the return of civil rule might have been truncated.

Moreso, Tafawa Balewa square which was designated place for swearing in ceremony was bedecked with all preparatories. The Lagos market women led by the late Alhaja Abibat Mogaji among others were already sending messages of goodwill and support to the president-elect. How on earth could the electoral tribunal and supreme court decide otherwise. So the learned Graham Douglas sought to opine? But the ratio decidendi of the majority of the justice of the supreme court did not indicate this philosophy!

However, as a rebutter Chief Awolowo (SAN) in his presidential address to his party, (UPN) debunked this ingredient as subtle manipulation of the justices of the supreme court of Nigeria. He submitted that wherever public interest and public policy are considered as judgement producing factors, he said such policy and interest must be subject to public morality, public ethic and not the ‘undue influences’’ that showed up in the Awolowo vs Shagari like previously remarked.

Atiku, Obi and other petitioners have the right to adjudication of their presumed victories at the last presidential election to the limit permitted by the law of the land, but it is patently immoral at one point to place your evidence before the tribunal and seek to get judgement at the altar of public opinion addressing press conferences and using intimidating press releases.

Where is our law of ‘sub-judice’ for litigants to hold on to comments pending the outcome of the suits? Perhaps a ‘scapegoat’ is headed to whip in our over-articulate elites and their captive audiences.

The dicta of his lordship late Hon. Justice Chukwudifu Oputa (JSC) on judicial independence is a clanion admonition relevant at all times. “It means resisting the pressure of hysteria, fanaticism, tribalism and ethnicity, it is that ingredient which allows a judge to rise above public passion, above public clamours and above the politics of the moment”. This is the philosophy for judges to hold against extraneous public intervention.

Ishola is a Legal Practitioner, Journalist and Essayist. He wrote from Ilorin.