By Mike Ozekhome SAN
In the last two weeks, I have demonstrated strenuously, about the unconstitutionality of an elevated judge continuing with part heard matters in his lower court before his elevation. Today, I shall continue to explore this explosive legal topic. The reactions it has generated amongst stakeholders has convinced me of its topicality and its urgency of now.
JUSTICE AND CONFIDENCE
In JWAN v. ECOBANK & ANOR (2018) LPELR-45631(CA), the Court of Appeal emphasized the issue of justice being rooted in confidence. Remove one, the other is dead. Hear it:
“It is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice… The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends…”
CAN PARTIES VOLUNTARILY CONFER JURISDICTION ON A COURT?
I have had the benefit of hearing the argument of some counsel or appellate Justices still hearing such part heard matters across Nigeria after their elevation. It is to the effect that Counsel who are participating in such proceedings actually wrote to the courts and requested that such Justices should continue with the hearing of such cases. That may very well be so. But, the argument is a non sequitur. It actually flies in the face, and assaults trite principles of law. For the avoidance of doubt, parties cannot by consent or agreement confer jurisdiction on a court where such is not in existence. In ONNA TRADITIONAL RULERS COUNCIL & ORS V. UMOREN & ORS (2018) LPELR 44301(CA), the Court of Appeal held:
“It is trite that where jurisdiction is absent, parties cannot by waiver or consent confer jurisdiction on the Court”. Per OYEWOLE, J.CA. (P. 15, para E). See also Prof. Steve Torkuma Ugba & Ors v. Gabriel Torwua Suswam & 4ors (No. 2) (2012) 6 SC (PT.II) 56.
Jurisdiction is therefore either granted by the Constitution itself, or by an enabling statute. It is not assumed or presumed. It is not gratuitously donated like a chieftaincy title by any of the parties to a dispute. This is why in the case of JOSIAH AYODELE ADETAYO & 2ORS V. KUNLE ADEMOLA & 2ORS (2010) 3-5 SC 89, the Supreme Court emphasised:
“It must be borne in mind always and this is settled that all the courts in this country, derive their powers and jurisdiction in particular, by either statute or Constitution which is the supreme, organic, fundamental law and the grund-norm of this country”. Per Ogbuagu, JSC.(P. 27, paras. F-G).
The importance of jurisdiction being the lifeline of all trials is why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of appeal, or at the Supreme Court. The court, afortion, can suomotu raise it. It can even be raised viva voce (per Uwaifo, JSC, in NDIC v CBN (2002) LPELR 2000 (SC). See also Akere&Ors v The Governor of Oyo State (2012) LPELR, 7806 (SC); Anozie v. Emerenini&Anor (2018) LPELR – 43888 (CA), Chukwuma v. Nwonye (2009) LPELR 4997 (CA); ONONYE V. ODITA (2008) 10 NWLR (Pt. 1096) 487.
PRECEDENTS ON THE UNCONSTITUTIONALITY OF ELEVATED JUDGES STILL HANDLING THEIR MATTERS AT THE LOWER BENCH
In the causa cerebre of OGBUANYINYA & 5 ORS. V. OBI OKUDO & 3 ORS (1979) 9SC.32,a similar situation as thrown up by imperious ACJA reared its head before the apex court.
The facts are that in 1977, Hon. Justice Nnaemeka-Agu, a judge of the Anambra State High Court was the trial judge in a land matter. On 13th June, 1977, the learned trial Judge listened to the addresses of Counsel on both sides and adjourned judgment to 17th June, 1977. Two days previous to the 17th June, 1977, Hon, Justice Nnaemeka-Agu was appointed a Justice of the then Federal Court of Appeal. The argument of the appellant was that as at 17th June, 1977, when the learned trial judge delivered his judgment, he had ceased to be a judge of the High court of Anambra State.
In July, 1979, the apex court unanimously upheld the argument that the judgment delivered by Hon. Justice Nnaemeka-Agu on 17th June, 1977, was illegal, null and void. The judgment was consequently set aside and the case remitted back to the trial court for trial de novo.
Held the apex court:
“The case was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka-Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka-Agu, J. (as he then was then was) delivered judgment, which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. See also ALHAJI AHMED GARBA BICHI &ORS V. ALHAJI IBRAHIM SHEKARAU & ORS, (2009) LPELR-3874 (CA).”
The Supreme Court in the more recent case of Ourline LTD v. SCC Nig. Ltd v. Universal Insurance Ltd, (2009) 17 NWLR (Part 1170) 382 (SC) was on song, when it declared null and void, a judgment delivered by Justice Anthony Iguh, who as the then Chief Judge of Anambra state had been handling a case at the Anambra state High Court. The case was adjourned for continuation. Before the adjouned date of 4th June, 1993, Iguh was elevated straight to the Supreme Court, by-passing the Court of Appeal, one of the very few (like Oputa, the oracular jurist of blessed memory), to have enjoyed that rare privilege of “double promotion”. The elevation was announced and celebrated with fanfare in Nigerian newspapers, electronic and print media. It was even captured in the Nigerian Weekly Law Reports (NWLR). He was to be sworn in on a later date. When the case came up on 4th June, 1993, Counsel to some of the Respondents raised the question of whether or not, having been elevated to the Supreme Court, Iguh could still continue hearing the matter. He replied in the affirmative, explaining that his announced appointment to the Supreme Court was to take effect on a future date. In other words, it had not yet been completed.
Justice Iguh therefore went ahead and concluded the case and also delivered judgment on 20th July, 1993. One of the main issues raised on appeal against the judgment, was jurisdictional: whether Iguh had jurisdiction to deliver judgment in the case on July 20, 1993, when he had already been appointed to the Supreme Court in June, 1993. The Court of Appeal upheld the appeal, nullified the judgment and remitted the case to the High Court for hearing de-novo. The main ground was that having been elevated, Iguh lost the jurisdiction to conclude and deliver judgment on the case. This judgment was later upheld by the apex court on further appeal, in an unanimous decision.
Indeed, unlike the present case of Justices of the Court of Appeal which were elevated and sworn in on 22nd June, 2018, but still hearing matters at courts below, Justice Iguh had not, at the material time, even taken the Oath of office and Oath of allegiance at all. Yet, the Supreme Court reasoned, quite correctly in my humble view, that it took judicial notice of the publication of Iguh’s appointment in the NWLR by virtue of the then section 74 (1) (j) of the Evidence Act (now section 122 (2) (j)). It held that “names of members of the court” must include the “wider membership of the upper and lower courts at large”. The apex court held that the repeated mention of his name and that of Justice Adio in parts 288 – 302 NWLR (covering 7th June to 13th September, 1993), was enough evidence of their elevation. To be concluded next week.
THOUGHT FOR THE WEEK
“Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.” (Neil Gorsuch).