Lessons From The Supreme Court By Reuben Abati

On Thursday, October 26, the Supreme Court of Nigeria gave its judgment in the appeals by Waziri Atiku Abubakar and the People’s Democratic Party (PDP), and Mr. Peter Obi and the Labour Party (LP) challenging the September 6 judgment of the Presidential Election Petition Court (PEPC) which affirmed Tinubu’s victory in the February 25 Presidential election. The appellants sued on the common ground that the lower court erred in law in its rulings on Tinubu’s failure to obtain 25% of the total votes cast in the Federal Capital Territory and whether Section 134 (1) (2) of the 1999 Constitution should be read “conjunctively or disjunctively”; the civil forfeiture by Tinubu of €432.51, 000 in the United States with regard to his eligibility under Section 131 of the Constitution, INEC’s failure to transmit results electronically, the ruling by the court of first instance that the appellants failed to prove that the Independent National Electoral Commission (INEC), violated the Electoral Act 2022, and the request for the leave of court to file fresh evidence obtained from the Chicago State University (CSU) and US District Courts with allegations of discrepancies and forgeries in Tinubu’s academic records. The Atiku/PDP team raised, in general, 35 grounds of appeal. The Peter Obi/Labour Party team of counsel raised 51 grounds of appeal in a 73-page notice of appeal.

A panel of seven Justices of the Supreme Court, with Justice Inyang Okoro, presiding, and Justices Uwani, Musa-Aji, Ibrahim Salauwa, Mohammed Lawal Garba, Tijjani Abubakar, Adamu Jauro and Emmanuel Agim consolidated both appeals into seven grounds, and on every ground dismissed the appeals as frivolous, vexatious and lacking in merit and hence thereby dismissed. Their Lordships had initially reserved judgment but when they finally delivered their judgment, three days later, they came out smoking. It was a unanimous judgment with their Lordships even warning the public to refrain from media trial, and to “trust the Court”, instead of sending threatening messages to judges and justices. I have argued that while judicial review is an important part of the judicial process, and public opinion is critical to the democratic process as Professor Barry Friedman has argued eloquently, it is just the case that courts of law do not take decisions on the basis of the opinion of the mob, moved more by emotions and sentiments, beer parlour engagements and social media tittle-tattle. This much has been well-stated per Niki Tobi JSC in Atiku Abubakar vs Umaru Musa Yar’Adua,and most recently by Justice Olukayode Ariwoola, CJN. Judges are members of the community. Their wives and children or husbands go through the same things as the rest of us. They also watch television and listen to the news. But when they are required to apply the law, their calling requires them to be above board like Caesar’s wife, and to be impartial no matter whose ox is gored.

In Nigeria today, most unfortunately, judges and justices are treated like closet criminals and are believed to be so. The Supreme Court is supposed to be the last hope of the common man, but with some problematic judges in recent times, so much doubt has been created among the people. The Hon. Justice Chukwudifu Akunne Oputa, Socrates of the Supreme Court as he was then popularly known, had addressed the matter when he opined that “we are final not because we are infallible, rather we are infallible because we are final.” The meaning is that the Supreme Court may make mistakes but it is the final court, beyond it, you can only appeal to God. Funnily enough, it is only the Supreme Court that can reverse itself, and it has had to do so in many cases in the past. But I insist as I have done that whereas the courts of equity may give the impression that the law is moral, and the study of jurisdiction having strong basis in morality and ethics, or that the foundation of law is the common good, in actual practice our courts are guided by what the law says it is.

They are guided by specific sources of law: received English law (circa 1876 and 1900) as represented by the common law, the doctrines of equity, and the English statutes of general application, international customary law by incorporation, local legislation, decisions of Nigerian courts (that is, stare decisis), rules of court and procedure. In considering all of this, I am of the firm view that the Okoro-led panel of seven JSCs, gave a judgment that is sound in law, and I restate this for record purposes. For example, when the Atiku/PDP camp embarked on a voyage of discovery to the United States about Tinubu’s certificates, I argued that the matter being brought out of time under Section 285 of the Constitution, and not pleaded and not proven in the court of first instance may eventually be of no moment. Hakeem Olaniyan in his Jurisdiction of Nigerian Courts in Causes with Foreign Elements (2013)and I. O. Agbede in his Themes on Conflict of Laws (1989) had raised the point that for a foreign element to be admissible in a foreign jurisdiction, facts must be pleaded and proven. It is elementary law that you plead facts not the law in private international law. Local laws also take precedence, and where the matter lacks the element of reciprocity, the court in the local forum decides on key questions of jurisdiction, which is the fountain head of the authority of the court and applicable law. A court can however assume jurisdiction, but this is at the discretion of the court. What their Lordships did was to uphold the jurisdiction of the lower court. They were also on terra firma on questions of recognition, relevance and admissibility of evidence. The other point on which I think they stood firm was their point that the argument about electronic transmission had been determined. This had been addressed in Oyetola vs Adeleke. Here, Emmanuel Agim JSC, presiding, held that “the case of the petitioners that the presiding officers were bound to instantly or on the spot transmit the number of accredited voters in the back-end server to INEC has no support.” A related matter in the October 26 matter was the burden of proof. The Supreme Court dismissed the arguments of the appellants with regard to the credibility of witnesses. It added that they were “octopus agents.” There are other key issues in that ruling that cannot be faulted in law qua law, no matter the emotional choices of appellants and their paid agents and public commentators.

The sum effect of the judgment is that the litigation with regard to the Presidential election has ended. Bola Ahmed Tinubu has been confirmed as the winner of the February 25, 2023 Presidential election. The Supreme Court has conferred on him the much-needed legitimacy. He has been given the de jure authority to act as President of Nigeria, Commander in Chief of the Armed Forces. He can now sit with the two laps of his buttocks on the seat. He is affirmed. The threat by some interested parties and their agents that they will settle the matter in the court of public opinion is foolhardy. It seems to me that we have moved beyond political campaigns. It is now time for governance and policy. President Tinubu has asked his opponents and others to join him to build a country and move Nigeria forward. There must be an end to litigation, and it has ended within the provided framework. President Tinubu must reach out honestly to the opposition and run a diverse, inclusive government of national unity. Certainly not a turn-by-turn government. The major opposition figures – Atiku Abubakar and Peter Obi have so far refused to congratulate him. I think their sour grapes look untidy. In critical moments such as this in the life of a nation, men and women should behave as patriots and put Nigeria first. No man should be good enough to run the country if he or she believes that personal ambition must come first. The opposition is required to play its part but the obsession with “me, I and myself” is deplorable.

Many would remember the example of Al Gore, former Vice President of the United States, and the Bush vs. Al Gore case that was decided on December 12, 2000, in which the Supreme Court of the United States ruled against the order of the Florida Supreme Court for a selective manual recount of the election. It was generally believed that the Supreme Court in awarding Florida’s 25 Electoral College votes to George W. Bush (Republican) erred in law. The margin of victory was so close it was clear Gore won in Florida. Gore in fact led by 327 votes. But Gore allowed it all to go. He disagreed with the Supreme Court of course, but chose not to be disagreeable in deference to the apex court of the country. I think there is a big lesson here that we all can learn across party lines.

In the 2023 general elections both the Constitution and the Electoral Act 2022 were put to the test. Certainly, there is a need for reform, and the National Assembly has a big job to do. One, the point has been made clear, even by mechanics and others, that a situation whereby a man or woman wins an election by every means possible in Nigeria and then turns around to say brazenly: “Go to Court!” is unacceptable. Why? Increasingly, the courts determine election outcomes. Our democracy would be better strengthened if candidates in an election do not have to go to the courts to seek validation. It is one reason people are asking that we must develop a system whereby people win at the polls not in the courts. Besides., where there are election petitions, these must be concluded before anyone is sworn in as is the case in Kenya. Where a supposedly elected person is already sworn in and he begins to exercise formal authority, as President Tinubu has been doing since May 29, the hands of the courts may be tied by public policy even if they may not say so. Other necessary amendments may be with regard to qualification and eligibility. Nobody who does not have a certified minimum of a higher degree must never be allowed to run Nigeria! The phrase “school certificate or its equivalent” (section 131 (d) and the dubious interpretation in Section 318 (1) must be expunged from the Nigerian Constitution! This country deserves to be led by its educated and enlightened class. What scandalous provision is that that makes it possible for anyone with a failed, F9 parallel school certificate to run this country. The National Assembly must also take a second look at the provision on electronic transmission of results. It is too opaque. It appears like a ceremonial, decorative provision in the Electoral Act. The law must pass the test of certainty not ambiguity. Manual transmission or electronic transmission? Let’s be clear.

Lawyers must also draw their own lessons from the Supreme Court Judgment of October 26. Their Lordships were not kind to the appellants counsel at all. As I noted on Arise News before now, they simply threw the textbook at them. They faulted them on the subpoena of witnesses, their understanding of the rules of court, even Section 12 of the Supreme Court Act, stare decisis and the meaning of Section 285 of the Constitution with regard to the time limitations of election petitions. Among the lawyers are Senior Advocates of Nigeria, masters of the law with years of experience, but they chose to mislead their clients. Why? Every lawyer is trained to be an officer in the temple of justice, that is to defend the cause of justice which is the end of law. Going forward, the Nigerian Bar Association has a lot of work to do: to protect the integrity of the Bar, inner and outer. Having a situation whereby lawyers behave like ambulance chasers for quick monetary gain defeats the entire purpose of the administration of justice system. It is precisely for this reason that George Chapman in his 1654 play, Revenge for Honour referred to the law as an ass. The same view is echoed by Mr. Bumble in Charles Dickens’ novel, Oliver Twist. Lawyers must stop behaving like donkeys, and it is the responsibility of the NBA and the NJC to put a stop to this through stronger codes of conduct.

Since the Supreme Court judgment, I have seen the public opinion mob referring to the valedictory speech by Justice Dattijo Muhammad (JSC, now retired) for confirmation of their conviction that the Supreme Court is a rotten place and that the entire judiciary is bad. I have had cause to question Justice Dattijo’s choice of forum: after serving 47 years in the judiciary, he chose the moment of his exit to throw the entire judiciary under the bus. He was the most senior Justice on the Bench, after the CJN, yet he complained about the Chief Justice running a one-man show. I have tried to compare his valedictory speech to that of Justice Odemwingie Uwaifo, January 24, 2004 titled “May the Supreme Court Never Become an Undergrowth.” Whereas Uwaifo JSC was cautionary, Dattijo Muhammad was combative, his speech full of direct, unmistakable innuendoes, a clear indication that judges and justices are also human beings and can descend to the arena like market women. It is the integrity of the entire judiciary that is further damaged. For timing purposes, Dattijo Muhammed simply poured cold water on the October 26 judgment of the Supreme Court in the Tinubu case.

Nonetheless, I find much wisdom in Olisa Agbakoba, SAN’s submission, supporting Dattijo JSC (as he then was) that there is an urgent need for judicial reform. Agbakoba also draws attention to the recommendations of a Judicial Reform Stakeholders Committees Reports, 24 – 26 October 2011, chaired by Justice Dahiru Musdapher, CJN of which he, (Agabakoba), was a member. Justice Musdapher refused to appoint his daughter as a Justice of the High Court even when she was eminently qualified. Dattijo tells us that these days, “children, spouses and mistresses” are now routinely appointed Judges. That is scandalous. Dattijo also complained about the over-concentration of power in the office of the CJN. The NJC in particular needs to be reformed. He complained further about vacancies on the Supreme Court Bench that have not been filled. The country now has only about 10 JSCs. This should be addressed and it is about time we began to admit lawyers and scholars to the Supreme Court Bench as they do in Canada to ensure diversity and inclusivity to enrich our jurisprudence. Above all, there is a lesson for the President himself. He now has a government to run. He must do so in the best interest of all concerned parties to justify the legitimacy conferred on him.