My respect for Professor Ben Nwabueze is immense. His age and
achievements in the Nigerian legal field and other walks of life
set him out as a distinguished citizen of this country. In
addition, one of the generally accepted precepts of the African
society is deep respect for elders. This precept, in some
traditions, is over stretched to the extent of not replying or
correcting an elderly person, even if the elderly person is
patently in error. This is why I nearly succumbed to the urge to
ignore Professor Ben Nwabueze’s position on the Supreme Court
decision in Atiku vs INEC as expressed in his press
release made on 31st October, 2019.
However, on deeper reflection, I came to the conclusion that
when the issue involved is not personal, but one of national
interest, it behooves any concerned and informed Nigerian to set
the record straight for the sake of posterity. This is more so
because Prof. Nwabueze did not speak from the position of an elder
Statesman. His affection and support for the PDP and its
Presidential candidate was clearly in display before and after the
election. His passionate, tearful embrace of Atiku Abubakar and his
famous declaration that he would not die until Atiku Abubakar
becomes President in 2019 was one of the high points of the last
election. His wheel-chair appearance at the Court of Appeal in
support of Atiku was also iconic. It was perfectly within his
legitimate rights to take this position. After all, other eminent
citizens of such age and stature also supported President Muhammadu
Buhari and the APC.
Unfortunately, in the said press statement last week, Prof.
Nwabueze took his political conviction too far by seeking to
destroy the reputation and integrity of the Supreme Court on the
altar of politics. He let his emotions override his sense of
decorum and professional etiquette – SOMETHING TOTALLY UNEXPECTED
of such revered figure in the legal profession.
In the said press statement, Prof. Nwabueze, delved into the
practice and procedure of the apex court in hearing and determining
time- bound appeals and the propriety or otherwise of same when
viewed in the light of the provisions of Section 36(1) of the
Constitution of the Federal Republic of Nigeria, 1999. Prof.
Nwabueze’s submissions contain deliberate misinformation (given his
pedigree) which become magnified when viewed vis-à-vis the
provisions of the law, the settled decisions of courts and the
precedents already long established by the Apex court.
The crux of Professor Nwabueze’s press statement relates to the
statement credited to the Hon. Chief Justice of Nigeria, Tanko
Mohammad who presided over the seven-man Supreme Court panel that
considered the appeal, as follows:
“We have examined all the briefs of argument and the
exhibits for over two weeks and we have all agreed that there is no
merit in this appeal. The appeal is hereby dismissed. Reasons to be
given on a date to be announced.”
From the above quotation, the revered Prof. Nwabueze came to the
following conclusions:
- That the decision dismissing the appeal as lacking in merit was
not taken at the sitting of the Supreme Court on 30 October, 2019;
that the decision had been taken during an examination of all the
briefs of argument and exhibits for over two weeks before the
sitting on 30th October, 2019. - That the Supreme Court cannot function as regards the hearing
of the appeal BEFORE the seven man panel
that heard the appeal was constituted and the names of the members
made public. He wondered when exactly the appointment of the Panel
was made. - That the right to fair hearing of the Appellants as guaranteed
by the provisions of section 36(1) of the Constitution was violated
as a result of the above.
Interestingly, this is not the first time the Supreme Court will
determine an appeal summarily and give reasons later. As a matter
of law, the power of the Supreme Court to do this is
constitutional. Section 285 of the Constitution allows this
procedure and it was given judicial sanction in the case of
Ikenya Vs. P.D.P. (2012) 12 NWLR (PT. 1315)
P.493 where the Court held inter alia that the
provision of section 285(8) of the Constitution can only be
exercised by the Supreme Court. In OKOROCHA VS. P.D.P.
&ORS. (2014) LPELR-22058 (SC) Ogunbiyi JSC cited
with approval the case of Ikenya Vs. P.D.P. (Supra) and
held as follows:
“In the case of Ikenya V. P.D.P. (2012) 12 NWLR
(PT.1315)493 it was held that the provision of section 285(8) of
the Constitution can only be exercised by this court, wherein
judgment can be pronounced and the reason would be reserved to a
later date. The section is not however open to the Court of
Appeal”.
Another important point to note is that the hearing preceding
the judgment in issue was conducted in the open court. The essence
of settling briefs before the appellate court is to allow the court
study same and give its decision with dispatch. Studying the briefs
before the date set for hearing is not a departure from Section 36
of the Constitution, but rather complements same. Section 36 (1) of
the 1999 Constitution (as amended), provides thus:
“A person shall be entitled to a fair hearing within
a reasonable time by a court or other tribunal established by law
and constituted in such manner as to secure its independence and
impartiality”
It is conceded that the constitution did not define the term
“fair hearing”. However the court has held that the hearing
envisaged under Section 36 (1) of the 1999 Constitution (as
Amended) is a hearing which is conducted in line with practice,
procedure and the rules formulated by statute and the Rules of
court in order to ensure justice. See the following cases;
Bamaiyi v. State (2001) 8NWLR (PT. 715) 270 at 284,
Uguru Vs. State (2002) 2 NWLR (PT.771) 90 at 105 and Audu Vs. FRN
(2013) 5 NWLR (PT. 1347) 360.
In Inakoju v. Adeleke (2007) 4 NWLR (PT. 1025) at
pg. 704 the court heard inter alia:
“Where the issue of denial of fair hearing is
raised, the relevant question is always whether a party entitled to
be heard has been given the opportunity of being
heard”
The relevant question as raised in the press statement of Prof.
Nwabueze is whether the parties in the matter were given
opportunity to be heard. The answer is in the affirmative as
demonstrated above.
Furthermore, Prof. Nwabueze’s assertion that the Supreme Court
went on a recess on the 30th of October, 2019 during the hearing of
the Presidential Election Petition appeal whereupon they
reconstituted the panel is, simply put, not correct. The purpose of
that recess was, as widely reported, to enable the counsel to the
Appellant decide on consolidating the seven interlocutory appeals
with the main appeal pursuant to an application by the Appellants’
lead counsel who asked the court to allow all counsel to adopt
their briefs, both in the main appeal and in seven other
interlocutory appeals.
Finally and in reply to the learned Professor’s rhetorical
inquiry as to the makeup of the panel in question and the timeline
of the appointment of its members, it is important to note that the
Supreme Court is under no legal obligation, neither has it been the
practice, to publish or furnish the names of members of the panel
to hear an appeal to the parties before the hearing of the appeal.
The practice of keeping the identity of members of such an
important panel anonymous has ostensibly been put in place to
encourage neutrality and also to discourage contesting parties or
members of the public from attempting to reach or compromise the
Honourable Justices. What is more, each Justice of the Supreme
Court is entitled to a case file and copies of all the Briefs filed
by the parties in any matter, a practice which is defined by the
filing of sufficient copies of processes at the registry of the
Court to ensure that all the Justices of the Supreme Court are
afforded copies of the processes filed in all matters upon the
filing of same.
Therefore, the logical inference from the foregoing is that each
and every Justice of the Supreme Court is sufficiently equipped to
serve in any panel as constituted by the Chief Justice of the
Federation. And it is not out of place for the Justices to hold
conferences over matters in Chambers, having read the Briefs, and
express their opinions on such matters, even before the sitting in
open court.
Therefore, there cannot be any question mark about what happened
at the Supreme Court on 30th October, 2019. When the CJN had
earlier announced, days before, that no Panel had been constituted
to hear the Appeal, it could not have meant that all the Justices
were not with the case files and were not studying same. The
seven-man Panel that eventually heard the Appeal could have been
constituted that morning and could have met even one hour before
the sitting in open court to express their opinion on what they
have read in the Briefs two weeks before then.
In conclusion, rather than crucifying my lords at the apex court
for hearing the appeal on the 30th of October, 2019 and deciding
same on the same date, my lords ought to be commended for coming to
court prepared and hearing and dismissing the Appeal with
dispatch.
Thank you.
FESTUS KEYAMO, SAN, FCIArb (UK)
(Issued in my personal capacity)