THE COURTS AND THE RULE OF LAW
The jurisdiction of any Court is circumscribed by the subject matter in
dispute in a suit and the issues raised in that suit for determination. If the
subject matter is within the jurisdiction of the Court, then the Court is
required to determine the issues raised in the suit and is not expected to
go beyond the issues.
In determining such issues, properly raised, Courts, including Appellate
Courts cautiously abstain from deciding more than what the immediate
point submitted for their consideration requires1. In OKULATE VS.
AWOSANYA2, Ogundare JSC made the point that a Court, particularly the
final Court does not embark on an academic exercise for the sake of it.
Once it is apparent that an issue placed before it is no longer necessary for
the proper determination of the case that issue is left for another day when
it may properly arise for determination.
Socrates was credited with the proposition that four attributes define a
good Judge. He is to hear cautiously, to answer wisely, to consider soberly
and to decide impartially3, if therefore a decision is to be considered wise,
and a tribute to the Rule of Law, then it is such that excludes the personal
opinion of the Judge and deals only with judicial evaluation of facts and
application of the law to those facts for the purpose of a judicial
determination of the case made before him by the parties4.
In other that a judgment may enjoy judicial integrity, the Judge ought to be
extremely reluctant to decide anything except what is necessary for the
special case. Judgments which carry weight and gravity, and which edify
the Rule of Law, are those which are based upon points which the Judge
was bound to decide and which the Judge effectively and correctly
decides. When the Judge strays from the issues and divagates into
irrelevant matters not necessary for determination in the particular case,
such extraneous matters are treated as Obiter dicta. Obiter dicta, like the
proverbial chickens of destiny, come home to roost sooner or later in a
very uncomfortable way to the Judges who have uttered them. They are
therefore a great source of embarrassment to future cases and the Rule of
Law5.The Law Reports in Nigeria are replete with instances where Obiter
dicta expressed in previous cases later become the source of great
embarrassment to the law and to the Judges who uttered them. In
ABACHA VS. FAWEHINMI6, the Court of Appeal was called upon to
determine seven specific issues which had nothing to do with the issue
whether the President of the Federal Republic of Nigeria had immunity
against Civil and Criminal actions. In a concurrent judgment by Pats –
Acholonu JCA (as he then was), he veered off the issues and made the
following very costly obiter.
1
“When I look at this case, I observe that one
of the respondents is the Head of State –
General Sani Abacha himself – I wonder
whether the appellant is unaware of the
provisions of Section 267 of the Constitution
of the Federal Republic of Nigeria. That
Section provides immunity against the civil or
criminal action or proceedings against the
person of the President or the Head of State.
It is wrong in law to have joined him as a
party. The Constitution is the primary law of
the land. I hold therefore that the name of the
Head of State should not have been reflected
in the suit in the first place. It offends the
provision of the Constitution7”.
This was a very far - reaching pronouncement. It was inappropriately
delivered on a point upon which the parties were never heard. Besides, it
was ill-considered and not the product of a proper judicial thought. It
provoked an appeal, and the Supreme Court castigated it as unsolicited
passing remark. It also drew the following reaction from the Supreme
Court:
“The observation above did not arise out of
any issue canvassed before the Court below
nor were arguments advanced on it. It is,
therefore, not a decision that could be
appealed against; it is only a mere remark. All
this notwithstanding, it is patently clear that
the observation is erroneous in law. Section
267 referred to therein had been suspended
by Decree No. 107 of 1993. Even if it were not
suspended it is clear that by its provisions it
would not apply to a case where the official
concerned (here, General Sani Abacha) was
sued in his official capacity – see subsection
(2) of the Section 267.
“(2)” The provisions of subsection (1) of this
section shall not apply to civil
proceedings against a person to whom
this section applies in his official
capacity or to civil or criminal
proceedings in which such a person is
only a nominal party.
I leave the matter at that and say no more on
it”8.
2
Uwaifo, JSC in his own contribution emphasized that Pats-Acholonu, JCA
merely express an Obiter dictum, but proceeded to say as follows:
“But I consider the observation a rather
expensive obiter, quite capable of misleading
the unwary and therefore deserves to be
corrected at the first opportunity9”.
It is recommended that Judges should scrupulously deny themselves the
luxury of passing remarks. As DR. J. I .J. Otuka once said, Judges in their
right minds do not divagate or stray from the issues to indulge in obiter dicta. It
must be noted that this expensive obiter raised even more problems. In other
to deal with it, the Supreme Court proceeded in the case under review to say
as follows:
“In the judgment of an appellate Court where more
than one Justice sits, it is the ratio or the rationes
contained in the leading judgment that constitutes or
constitute the authority for which the case stands. All
other expressions contained in the concurring
judgments, particularly those not addressed in the
leading judgment are obiter dictum or dicta. Obiter
dicta in the leading judgment as well as in the
concurring judgments may be of persuasive effect in
other occasions”10.
This rather wide enunciation of principle was targeted at what was considered
a dangerous obiter. It was however, expressed in the judgment of Achike
JSC, who did not read the lead judgment. Many Legal Practitioners have
relied on it however to submit before the Courts below the Supreme Court that
the only judgment of an Appellate Court panel of more than one Judge is the
lead judgment. The Court of Appeal had rather bravely refused to accept this
enunciation of principle. In MOHAMED VS. ABDULKADIR11, the Court of
Appeal said, referring to its previous decision on the point as follows:
“A concurring judgment has equal weight with the
leading
judgment.
A
concurring
judgment
complements, edifies and adds to the leading
judgment. It could at times be an improvement of the
leading judgment when the Justices add to it certain
aspects which the writer of the leading judgment did
not remember to deal with. In so far as a concurring
judgment performs some or all of the above functions,
it has equal force with or as the leading judgment in
so far as the principles of stare decisis are
concerned. However, a concurring judgment is not
expected to deviate from the leading judgment. As the
name implies, a concurring judgment must be in
3
agreement with the leading judgment. A concurring
judgment which does its own thing outside the leading
judgment is not a concurring judgment but a
dissenting judgment12”.
It would appear however that the Supreme Court has in a lead judgment of
Adekeye JSC, in OLORUNTOBA-OJO VS. ABDUL-RAHIM13, accepted the
modified principle as stated by the Court of Appeal as the preferred view
without expressly referring to its decision in ABACHA VS. FAWEHINMI.
Judges therefore, are to avoid extraneous discussions and apply themselves
to the province of declaring the existing law and applying the law to the facts
of the case before them. That is what the Rule of Law requires. They are not
to make new law. This is because under the Constitution14, the power of the
Judge is merely to interpret the law. The responsibility for making the law
belongs to the Legislators. This is encapsulated in the Latin maxim, judicis
est jus dicere, non dare. In ABIOYE VS. YAKUBU15, the Supreme Court
emphasized that it is not a derogation of the powers of the Judges if they, and
rightly too, limit themselves to the duty of the interpretation of Acts of the
Legislature. The Court also said that what the law ought to be is outside the
function of the Judges. What is the law is however to be found in their
judgments.
The law however must be applied to an ever – changing set of facts in an
ever-changing social setting. Law grows, and though the principles of law
remain unchanged, their application is to be changed with the changing
circumstances of the time in accordance with progression of human
civilization and development16. The law would be a strange science if it rested
solely upon cases, so that even after so large an increase in Commerce, Arts,
Technology and Political experience and awareness in contemporary society
that society must remain tied to the views of yesteryears. Lord Mansfield, it
was, who was credited with the concept, let justice be done, though heaven
falls. Lord Denning changed that by pointing out that what makes heaven fall
cannot be justice. When justice is done, heaven rejoices.
While therefore, a Judge must not by any whimsical conceits supposed to be
adopted to the altering fashions of the times, overturn the established law of
the land which he inherited as a sacred charge and which it is his duty to
preserve, the Judge must not abstain from the need to adapt the law to the
changing scenes and circumstances in the society. What is ridiculous and
absurd should never be adopted, either in law or in equity. That is the
province of judicial activism. The Rule of Law is always enhanced by judicial
activism but it is also diminished by judicial rascality.
Activism is defined as a philosophy of creative will, a policy of direct vigorous
action17. Judicial activism is a philosophy which motivates Judges to depart
from strict adherence to judicial precedent in favour of progressive and new
social policies which are not always consistent with the restraint expected of
Appellate Judges. It is commonly marked by decisions calling for social
4
engineering and occasionally these decisions represent intrusions into
Legislative and Executive Matters. Lord Denning was a true exponent of
judicial activism. Some of his futuristic judgments which upset the judicial
status quo and offended the judicial sensibilities of his contemporaries later
became conventional wisdoms requiring legislation to convert them from
dissenting views to official legal views18.
What then is the true character of a judicial activist? What are the uses and
limits of judicial activism? What is the justification for it?
A Judicial Activist is not that oft encountered Judge, inebriated with the illusion
of his own grandeur and who assumes the posture of a preacher while
offering his personal opinions in place of the law as it is.
A Judicial Activist is rather that profound thinker on the bench, ever so humble
and accommodating of contrary views. He is highly learned and possesses a
capacity for deep reflection with a special instinct for what is just. He is not
hypnotized by precedents, though he would not depart from them lightly. He
does not seek escape from profound analysis of a case by relying on dicta in
previous cases. Precedents are useful to him only when they lead to just and
fair results. When they lead to unjust or unfair results, he questions them and
explores ways and means of ameliorating the injustice or unfairness, even
though he may not openly set aside a binding precedent.
Judicial Activists are cast in the finest mould of innovators and without them,
the law losses much of its dynamism. Because they are among the purest
breed of Judges, they do not obfuscate the Law Reports with verbiage of no
value or obiter dicta of doubtful merit. It is of them, that it is said quite correctly
that the interest of justice cannot be sustained neither can the administration
of justice go on without the aid of men skilled in jurisprudence, in the practice
of the Court and in those matters affecting rights and obligations which form
the subject of all judicial proceedings19.
The law is not always just. The aim of a good Judge is to bring the law as
much as possible in line with justice. The need for certainty in the law cannot
be over emphasized. Legal Practice would not be worth its name as a
profession, if the Legal Practitioner is not able to advise his clients within
acceptable margin of error as to what the law on a given topic or subject
matter is. If the law is therefore correctly described as what the Judges lay
down in their judgments, then the Practitioner should have a fair guess as to
what the judicial opinion is likely to be. Without this assurance, adjudication
becomes open to corruption and the society might not find confidence in a
cacophony of judicial pronouncements from the Courts. The integrity of the
Courts would then become the unfortunate object of public scandal and
obloquy. It is for this reason probably that the average Judge prefers not to
rock the boat but rather to repeat the standard clichés in previous judgments
without prying into their validity. This often results in the creation of an era of
judicial injustice.
5
In OYEGUN VS. IGBINEDION20, the Court of Appeal, staying within the
beaten track, laid it down that:
“An elected candidate cannot have his
election nullified on the ground of corrupt
practices or any other illegality committed in
the process of the election unless it can be
proved that the candidate expressly
authorized the illegality”.
Many years before OYEGUN VS. IGBINEDION, and ever since that
decision this monstrous injustice, and many like it have been used by our
Judges to sustain in office, persons whose election into office were
manifestly indefensible and unjust to the polity. It is quite disgusting to
watch Legal Practitioners as Advocates before the election tribunals and
the Court of Appeal cite this legal monstrosity with every air of erudition and
profundity. By this principle in OYEGUN VS. IGBINEDION, even if a
tribunal is confronted with complete and irrefutable legal evidence that the
integrity of a process of election had been debased and totally eroded by
corrupt practices and other illegal acts of persons other than the winner of
the election, the winner would still be entitled to that result even if the
electors had been evidently massively defrauded of their franchise. It would
require a political revolution or the ingenuity of an activist Judge to bring
this monstrosity and many more like it to the notice of the legislature, so
that there may be a change in the law. There is no doubt that it is
monstrosities such as the one sustained in OYEGUN VS. IGBINEDION
that have made it impossible for this country to conduct a fraud-free
election since 1960.
In 1982, this country was operating a constitutional democracy under the
Constitution of the Federal Republic of Nigeria, 1979. Section 170 of the
said Constitution prescribed the manner to be followed in removing a
Governor or his Deputy. If the Constitution was in fact the fountain of the
law in Nigeria, one would have thought that for anything to be done rightly
and properly, it must be done in accordance with the provisions set out in
the Constitution. However, in ALHAJI ABDULKADIR BALARABE MUSA
VS. AUTA HAMZA & 6 ORS21, Balarabe Musa, as Governor of Kano State
sought judicial intervention, when an impeachment proceeding was initiated
against him. He sought refuge under the provisions of Section 170(1) – (9)
of the 1979 Constitution. The Court of Appeal took a rather pernicious
position, by deciding that impeachment proceedings are purely a matter for
the parliament and that the Courts do not and would not interfere even if
infringement of the Constitutional provisions is alleged.
6
This rather pernicious doctrine unfortunately was never referred to the
Supreme Court for review. It remained the guiding law on impeachment
and many other decisions were based on it until 2007, when due to a
political revolution thrown up by the legislators who attempted at every
throw of a hat to remove a Governor by impeachment. The very provisions
in the 1979 Constitution which the Court of Appeal glossed over in 1982
were relied upon in the 1999 Constitution to bring the Legislative
shenanigan to a halt22. Judicial Activism was called for in 1982, it was
lacking. From 1982 to 2007, lack of courage at the Bar and lack of
imagination on the bench resulted in perpetuation of a pernicious disruption
of the Executive organ at the State level until the stack invalidity of the
decision in BALARABE MUSA VS. HAMZA, and the consequences of
following that decision compelled the judiciary to intervene rather belatedly.
Again in 1982, the judiciary underestimated the capacity of politicians for
mischief. The Courts assumed that political parties could be trusted to be
fair to the members, and responsible in the administration of the contract
between the political parties and their members. No one at that time
envisaged the emergence of a “strong man” who could pocket the most
powerful political party in Nigeria and dictate to the members his will for
obedience in all things, no matter what the party constitution says. So, in
ONUOHA VS. OKAFOR23, the Supreme Court decided that the Courts
would not interfere in the affairs of political parties and would not interfere
in the choice of candidates to be sponsored by political parties to contest
general elections. The machinations of the politicians and the brazen
mischief of the leaders of the political parties aroused the activist ire in our
Supreme Court at last.
Thus, in UGWU VS. ARARUME24, the Supreme Court confronted the
arbitrary nomination and dumping of candidates by political parties
particularly the PDP. For the first time, it was thought that a member of a
political party who had fought for and worn the right to represent his party
at a general election is entitled to the protection of his mandate against the
whimsical preferences of a “strong man” or “the movers and shakers” within
the party. The Supreme Court moved to protect that right. Justifying the
paradigm shift by the Supreme Court Niki Tobi, JSC, said as follows:
“Let me read Article 2 of the Constitution of the
Peoples Democratic Party, the 3rd Respondent, to
make a point that has occurred to me: Subject to
the provisions of the Constitution of the Federal
republic of Nigeria, this Constitution shall be
supreme and its provisions shall have binding
force on all members and organs of the party. By
Article 2, the supremacy of the 3rd Respondent is
subject to the supremacy of the Constitution. This
7
is consistent with the provisions of section 1 of the
Constitution of the Federal Republic of Nigeria,
1999. Right of access to Court is a constitutional
right which is guaranteed in the Constitution and
no law, including that of a political party, can
subtract from or derogate from it or deny any
person of it. Such law will be declared a nullity by
virtue of the section 1 (3) of the Constitution.
Fortunately, Article 2 of the Constitution of 3rd
Respondent is not one of such laws. On the
contrary, it vindicates and fortifies section 1 (2) of
the Constitution and that is good, very good
indeed. The 3rd Respondent knows clearly the
constitutional position”. (Lead judgment, per Tobi
J. S. C. at page 450 H).
Not wanting to be seen as overruling the Supreme Court’s previous
judgment in ONUOHA VS. OKAFOR, Niki Tobi continued as follows:
“That takes me to the two cases cited by Counsel.
They are ONUOHA VS. OKAFOR (Supra) and
DALHATU VS. TURAKI (Supra). While Dr. Izinyon
and Chief Gadzama urged this Court to follow the
decision in the two cases, Prince Fagbemi urged the
Court to overrule the decisions. With the greatest
respect, none of the submissions is correct. I will
neither uphold the decisions of this Court nor
overrule them in this appeal. It is elementary law
that a case is decided on its facts. No case is
decided outside its factual milieu. The situation in
the two cases is not similar to the situation in this
case. While ONUOHA was decided on an earlier
Electoral Act, DALHATU was decided on the
Electoral Act, 2002. What is involved in this appeal
is the Electoral Act, 2006. The provision of section
34 (2) of the 2006 Act was not in any of the previous
Acts and that makes the whole big difference. Apart
from the provision of section 34 (2) of the Electoral
Act. Article 2 of the Constitution of the 3rd
Respondent is yet another reason why this Court
cannot follow its earlier decisions in ONUOHA VS.
OKAFOR (Supra) and DALHATU VS. TURAKI
(Supra). ONUOHA involved the political party of the
NPP. DALHATU involves the political party of
ANPP. Both cases did not involve the construction
of the equivalent of Article 2 or its prototype of the
3rd Respondent, Peoples Democratic Party”. (Lead
Judgment per Tobi J. S. C. page 451 B – F).
8
It was however, Oguntade JSC that cut the true image of a Judicial Activist,
when he said as follows:
“My humble view on the decision in ONUOHA
VS. OKAFOR (Supra) is that the same has
ceased to be a useful guiding light in view of the
present state of our political life. I have no doubt
that the reasoning in the case might have been
useful at the time the decision was made. It
seems to me however, that in view of the
contemporary occurrences in the political scene,
the decision needs to be reviewed or somewhat
modified. If the political parties, in their own
wisdom had written it into their Constitutions that
their candidates for election would emerge from
their party primaries it becomes unacceptable
that the Court should run away from the duty to
enforce compliance with the provisions of the
parties’ Constitution. The Court did not draft the
Constitutions for these political parties. Indeed,
the Court, in its ordinary duties, must enforce
compliance with the agreements reached by
parties in their contracts. Even if the decision in
ONUOHA VS. OKAFOR (Supra) might have
been acceptable at the time it was made, the
contemporary bitterness and acrimony now
evident in this country’s electoral process dictate
that the decision be no longer followed….”
(Page 461 A – E).
Justification for Judicial Activism is to be found therefore in the basic axiom
that what is ridiculous and absurd never is to be adopted either in Law or in
Equity.
It is not every Judge that has the capacity for Judicial Activism. There will
always be timorous souls on the bench and there will also always be
Judges whose best efforts comprise in following precedents. Such judges
are not a threat to the Rule of Law. Better be a conformist, than a rascal.
Best of all, belong to that rare breed of Judges who are willing to go beyond
the law in search of justice but who are also cautious not to upset the law in
the exercise.
Judicial Activism is not co – terminous with judicial irresponsibility. Refusal
to be bound by the doctrine of precedents and the stare decisis rule,
introduces chaos and uncertainty in the law and no excuse can be made
for such a practice in the pretext of search for higher justice. The Activist
Judge respects precedents and is guided by the principle of stare decisis.
9
When however, he perceives that a particular precedent works injustice, he
takes it on headlong and seeks to point out what needs to be done to attain
better justice in the case. Where he is bound by precedent, he recognizes
that fact while calling for the superior Court or the Legislature to revisit the
issue. This is amply demonstrated by the Court of Appeal in the case of
NELSON VS. EBANGA25.
The Supreme Court had in 1986 decided in SALATI VS. SHEHU26, that the
High Court lacked jurisdiction to entertain suits in respect of land not in an
Urban Area in view of Section 41 of the Land Use Act. Identical decision was
again handed down by the Supreme Court in 1996 in SADIKWU VS.
DALORI27 and in 1997 in OYENIRAN VS. EGBETOLA28. These decisions
raised a groundswell of incredulity in the legal community. Since, the Supreme
Court is a super Court whose decision is final but not necessarily infallible, the
High Courts and the Court of Appeal accepted the binding effect of the
decisions of the Supreme Court in this particular context but reserved the right
to murmur and grumble about it. This murmuring however became vocal in
1998 when the Court of Appeal in NELSON VS. EBANGA, expressed its
doubts in activist form. In the lead judgment of the Court of Appeal,
Ubaezuonu JCA, said as follows:
“If the decisions in Oyeniran v. Egbetola
(supra) and Sadikwu v. Dolari (supra) remain
the law, our land law will be in a state of
disaster. It would mean that most of our case
law based on the decisions of the High Court
on lands in non-urban areas given from the
promulgation of the Land Use Act in 1978 till
the decision in Sadikwu and Oyeniran is
swept away as being null and void. Some of
these decisions had been affirmed by the
Court of Appeal and the Supreme Court. Such
a situation will be chaotic. I express the above
opinion with the utmost humility and
trepidation”29.
This is as it should be. The language of the Court of Appeal in NELSON
VS. EBANGA, was extremely critical of the Supreme Court position. This
however, was necessary in other to accentuate the doubt in the mind of the
Court of Appeal. It is gratifying that in 2000, the Supreme Court in ADISA
VS. OYINLOLA30 achieved a truce in the fray by accepting the position of
the Court of Appeal, even without expressly overruling itself. Delivering the
judgment of the Supreme Court this time, Ayoola JSC, said in effect that
Section 41 of the Land Use Act did not oust the unlimited jurisdiction of the
State High Court as provided by Section 236 of the 1979 Constitution.
Useful therefore as Judicial Activism is, it must not be deployed as a means
of expressing judicial dissent, when a dissenting judgment would have
been appropriate. This needs some clarification. Under the 1999
10
Constitution and indeed under the 1979 Constitution, the Court of Appeal of
Nigeria lacked the jurisdiction to overrule itself31. The Court is regarded as
one Court even though its panels sit in various divisions simultaneously.
Ever too often however, in the Law Reports, one encounters instances
when different panels of the Court of Appeal overrule each other. This is
not Judicial Activism. It is rather a manifestation of judicial independence
not suited for a team work where Judges sit in panels. It does the Rule of
Law no good. Clearly, where a Judge of the Court of Appeal considers that
a previous judgment of the Court of Appeal is wrong, he may criticize it
without overruling it. To overrule it would be unconstitutional. It may not be
uncharitable to characterize that conduct as abuse of office. Where a
Judge of the Court of Appeal sits in a panel and finds it difficult to subscribe
to the majority decision, he may enter a dissenting judgment. It would not
be right to bid for his time when per-chance he has an opportunity to write
the lead judgment in another case to make his personal views the lead
judgment.
If Judges sitting at the Appellate Courts, keep well in mind the bounds
between Judicial Activism, the doctrine of precedent and the principle of
stare decisis, judicial pronouncements would become more certain and
more authoritative. Rule of Law would get a fillip. Legal Practitioners, Law
Teachers, and researchers of the law generally would experience less
frustration with the Law Reports wherein it is currently the rule that authority
can be found to cancel out any other authority on any principle of law, even
from the same Court. The insightful practitioner before any election tribunal
knows how confusing it is to find authority for any principle because for
every restatement of a principle, there are a dozen contrary restatements,
especially at the Court of Appeal and occasionally at the Supreme Court. It
is this phenomenon more than anything else that erodes the confidence
which even Legal Practitioners, let alone the public should have in the
judgments of our Courts, pertaining to election disputes.
The result is that, faced with conflicting decisions of Appellate Courts, the
Courts below them the Practitioners and Teachers, are left to make a
choice which of the authorities to follow. To demonstrate the problem which
thus arises, three sets of Court of Appeal decisions taking at random need
to be studied. They are:
A
(1)
Ayeni Vs. University of Ilorin (2000) 2 NWLR (Pt. 644) 290 at 302
D – C.
(2)
Ali Vs. C. B. N. (1997) 4 NWLR (Pt. 498) page 192 at 202.
(3)
U. T. B. Nig. Ltd. Vs. Ukpabia (2000) 8 NWLR (PT. 670) 570 at
578 B and 579 F- G and 580 C- B.
11
B
(1)
N.D.I.C Vs. F.M.B (1997) 2 NWLR (PT. 490) 735.
(2)
Okafor Vs. Hashim (2001) 1 NWLR (PT. 693) 183.
(3)
Irukwu Vs. T.M.I.B. (1997) 12 NWLR (PT. 531) 113.
C
(1)
U.T.B. Nig. Ltd Vs. Ukpabia (2000) 8 NWLR (PT. 670) 570.
(2)
University of Abuja Vs. Ologe (1996) 4 NWLR (PT. 445) 706.
(3)
Okoroma Vs. Uba & Ors. (1999) 1 NWLR (PT. 587) 359.
Before we review these authorities, it should be remembered that under the
principle of stare decisis, the Court of Appeal cannot reverse its own decision.
Only the Supreme Court can review a Court of Appeal decision. See
NWADIKE VS. I.G.P. (1992) 3 NWLR (PT. 227) 70 at 97 Para. E. Confirmed
by the Supreme Court in OSHO VS. F.F.C. (1991) 4 NWLR (PT. 184) 157 at
188 H. See also OJUGBELE VS. LAMIDI (1999) 10 NWLR (PT. 621) 167 at
172 H et. Seq. The Court of Appeal may distinguish it previous decision, but
cannot overrule it.
In AYENI VS. UNIVERSITY OF ILORIN, decided by three Justices of the
Court of Appeal, it was decided that to hold that the proviso in an identical
enactment to Section 251(1)(s) of the 1999 Constitution limited the enacting
part would lead to absurdity. If it is accepted that the Court of Appeal cannot
overrule its previous decision, then the decision of the Court of Appeal in
AYENI VS. UNIVERSITY OF ILORIN cannot stand, because it contradicts the
previous decision of the full Court of the Court of Appeal in N.D.I.C VS.
F.M.B., which decision was followed by the Court of Appeal in IRUKWU VS.
T.M.I.B. Furthermore, even if the Court of Appeal decision in AYENI VS.
UNIVERSITY OF ILORIN, which is later in time to the decision in N.D.I.C VS.
F.M.B, can be said to have overruled the earlier decision of the Court of
Appeal in N.D.I.C. VS. F.M.B, that Court of Appeal decision in AYENI VS.
UNIVERSITY OF ILORIN was overruled by the Court of Appeal later in
OKAFOR VS. HASHIM. What applies to AYENI VS. UNIVERSITY OF
ILORIN also applies to ALI VS. C.B.N.
In U.T.B. NIG. LTD. VS. UKPABIA, the main thrust of the decision of the
Court of Appeal is that the Inspector General of Police and all other Policemen
are the embodiment of the Nigerian Police and therefore an agency of the
Federal Government. This decision failed to take account of
an earlier
decision of the Court of Appeal in UNIVERSITY OF ABUJA VS. OLOGE,
where the Court of Appeal had drawn a clear distinction between “agents”
12
and “agency” and held that both expressions are not coterminous. In any
case, the decision of the Court of Appeal in U.T.B. NIG. LTD is clearly
inconsistent with the decision of the Court of Appeal in OKOROMA VS. UBA
& ORS., where the Court of Appeal clearly decided that Inspector General of
Police is not necessarily an agent of the Federal Government for all purposes.
Furthermore, the decision in U.T.B. NIG. LTD. VS. UKPABIA did not follow
the previous decision of the Court of Appeal in N.D.I.C VS. F.M.B., which is to
the effect that the proviso to Section 251(1)(s) of the 1999 Constitution had
the effect of creating concurrent jurisdiction between the Federal High Court
and the State High Court in Banking matters relating to a Bank and its
Customer. In any case, the decision of the Court of Appeal in N.D.I.C. VS.
F.M.B was reaffirmed by the same Court in OKAFOR VS. HASHIM, which is
later in time than U.T.B. NIG. LTD. VS. UKPABIA.
There is this tendency in some circles, to equate judicial verbosity or loquacity
to judicial sagacity or profundity. The golden rule remains, least said, soonest
mended. Judicial Activism is not enhanced or even characterized by
expansive exposition of principles whether relevant for the determination of
the given case or not. Ability to expatiate and elaborate is not judicial activism.
It is not even a necessary tool for a good Judgment. It does not edify the Rule
of Law. Judgments of our Courts, excluding of course the Supreme Court are
rendered in long and winding fashion because all sorts of expatiations,
adumbrations, criticisms and reference to previous dicta are embedded
therein, making the judgments cumbersome and lumbering. The maxim is
absoluta sententia expositore non indiget. This means that once the words are
plain and are capable of only one interpretation no explanation of them is
required. A clear statement, or sentence or proposition requires no expositor
or interpreter. Judgments should therefore center on the issues in a case and
not indulge the academic whims of the writer. Let us repeat that, that system
of law is the best, which leaves least in the discretion of the Judge and that
Judge, the best who relies least on his opinion. When once it is appreciated
that the law is not interested in the personal opinion of the Judge but in his
exposition of the law, the need to avoid elegant and elaborate prose writing
and the use of unnecessary imagery and side comments would become
imperative. The Rule of Law is established, when the Law is, by judicial
declaration, made certain and when absurdities are not accepted whether at
Law or in equity. The Law becomes an ass, when injustice is offered for
communion at the temple of justice.
U. N. Udechukwu, KSC, SAN.
U. Nnoruka Udechukwu & Associates,
Nkiruka Chambers,
No. 5 Howell’s Crescent, GRA,
Aba.
13
NOTES
1. Per Sir John Nicholl in Goods of King Judge III, deceased. (1882) 1 St. T. R (N. S.) 1278.
2. (2000) 1 SC 107 at 112
3. Hon. Justice A. O. Adeyemi – Juris proverbial page 68 para. 130
4. Sierra Leone Vs. Maria Taylor (1952) 14 WACA 137 at 139
5. Per Bowen LJ in Cooke Vs. New River Company (1888) LR 38 CD 70
6. (1996) 9 NWLR (Pt. 475) 710
7. (1996) 9 NWLR (Pt. 475) 710 at 754 G - H.
8. Abacha Vs. Fawehinimi (2000) 6 NWLR (Pt. 660) 228 at 297 H
9. Abacha Vs. Fawehinimi (2000) 6 NWLR (Pt. 660) 228 at 351 D
10. Abacha Vs. Fawehinimi (2000) 6 NWLR (Pt. 660) 228 at 323 C
11. (2008) 4 NWLR (Pt. 1076) 111.
12. Ibid. page 146 A – E
13. (2009) 13 NWLR (Pt. 1157) 83 at 143 H
14. Section 6 of the 1999 Constitution
15. (1991) 5 NWLR (Pt. 190) 130 at 252 – 253
16. Per Lord Coleridge in Reg. Vs. Ramsey (1883) 1 Cabeb & Allis QBD Rep. 135
17. Chambers Dictionary, New 9th ED.
18. Blacks Law Dictionary, 5th ED.
19. Per Brougham LC in Greenough Vs. Gaskel (1833) 1 Myl. & K 93
20. (1992) 2 NWLR (Pt. 226) 747 at 759 B
21. (1982) 3 NCLR (Vol. 3) 229
22. Inakoju Vs. Adeleke (2007) 4 NWLR (Pt. 1025) 423
23. (1983) 2 SCNLR 244
24. (2007) 12 NWLR (Pt. 1048) 367
25. (1998) 8 NWLR (Pt. 563) 701
26. (1986) 1 NWLR (Pt. 15) 198
27. (1996) 5 NWLR (Pt. 447) 151
28. (1997) 5 NWLR (Pt. 504) 122
29. Nelson Vs. Ebanga (1998) 8 NWLR (Pt. 563) 701 at 727 D
30. (2000) 10 NWLR (Pt. 764) 116
31. Osho Vs. FFC (1991) 4 NWLR (Pt. 194) 157 at 188 H
14
15