Retired Supreme Court Justice decries miscarriage of justice via technicalities
By Jeph Ajobaju, Chief Copy Editor
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“Quite frankly I’ve been a Justice of the Supreme Court. I disagree entirely with that ruling, and I’ve had occasion to discuss it with some of the Justices of the Supreme Court who don’t agree with that either” – Ogebe
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Retired Supreme Court Justice James Ogebe has criticised the judgments of the top court on Imo governorship vote which awarded victory to Hope Uzodinma in 2020 and on Yobe North senatorial contest which picked in 2023 former Senate President Ahman Lawan as the candidate of the All Progressives Congress (APC).
Ogebe bared his mind at the Courts and Society Webinar Series organised by the ATSJC based in the United States, which focused on “The Courts’ Role in Nigeria’s Electoral Process”.
The discussants included
- Justice Adam Onum – Retired Chief Judge/former election tribunal Chairman)
- Yusuf Ali, SAN – Nigerian lawyer/election expert
- Nella Andem-Ewa Rabana, SAN – Nigerian lawyer/former Attorney General/former gubernatorial candidate
- Kunle Lawal – Executive Director of Electoral College Nigeria /politician/patriot
The discussion was moderated by Ari Niki-Tobi, founder/CEO of ATSJC.
A copy the transcript was sent to TheNiche by Emmanuel Ogebe from Washington where he is Managing Partner at US Nigeria Law Group (USNLG).
During the question and answer session, Ogebe was asked about how he determined the historic impeachment case of former Oyo Governor Rashidi Ladoja.
Ladoja’s case in Oyo
Ogebe replied: “My advice to Justices is that they should be interpreting the Constitution and the law as it is, without looking at anybody’s eyes or face to do justice and pure justice.
“In the case of Ladoja, some members of the state Assembly in Oyo Atate had disagreement and so some of them left the House of Assembly and went to a hotel room.
“They didn’t have the numbers to impeach and said they had impeached the Governor. The Speaker was not part of them, the Deputy Speaker was not part of them. They then suddenly chose somebody else as Governor.
“They argued at the High Court that impeachment cannot be interfered with by the court.
“We looked at the Constitution very carefully and said well, ‘those rascals who were in the hotel who impeached the Governor cannot constitute the state Assembly. So we were able to wriggle out of it and restored the Governor and that’s exactly what happened in Oyo State on Ladoja’s case.
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Obi’s case in Anambra
“It was followed in Anambra State where they hurriedly went and removed the Governor [Peter Obi], shortly just before we [the Court of Appeal] gave our own judgment, they quickly went and removed him,” Ogebe recounted.
“They were following what was happing in Oyo. And the case came before us in the Court of Appeal Enugu and we restored him.
“So the administration then was trying to make light the issue of the removal of Governors. And we said ‘no! If the Governor of a state can be removed at the whim of any President, then there will be no stability in the system at all.’”
Judges, lawyers ‘should be very careful’
“So I advise all Judges and lawyers should be very careful to make sure the Constitution is not breached by politicians who are all out to find loopholes with which to breach the Constitution.
“That is why I, in my paper, I try to suggest that pre-election matters of that nature should not go beyond the High Court, if at all.
“For it to go up to the Supreme Court and that kind of thing…
“The High Court rejected the position of Lawan, the Court of Appeal also threw out his appeal, and it got to the Supreme Court, and then we had that strange ruling.
“Quite frankly I’ve been a Justice of the Supreme Court. I disagree entirely with that ruling, and I’ve had occasion to discuss it with some of the Justices of the Supreme Court who don’t agree with that either.
“That is why I say that such matters should be dealt with very carefully. These people should not have been given any opportunity.
“The Supreme Court is a final court. And they should be careful not to give any ruling without careful observation.
“In fact, they should be careful that even if it means applying their prerogative as the Highest Court to overrule some of the technicalities, like say, ‘oh, the originator of the suit did not file the originating summons, or this and that,’ these are technicalities.”
Overlook technicalities, rule on substance
“There was a case in Nigeria where a High Court Judge was sentenced to imprisonment and fine for an offence, and eventually he appealed the matter. It went to the Supreme Court, and the Attorney General of the state was objecting on technical grounds, that the grounds were defective and all that.
The Chief Justice said, ‘look, whether the man came on his head or shoulders or not, the matter is before us and we’re going to decide it right now.’
“And they said, ‘look, the High Court Judge who is alleged not to have a gun licence, and all that; as the Attorney General, can’t you go and get the licence for the Judge? That’s the kind of thing you bring here?”
“There and then they discharged and acquitted the Judge.
“So the Supreme Court has the right, even when there’s a defective process, they look at the substance of the case and say, ‘look, we’re going to do justice in this case.’ That would have solved the problem.
“As Judges, they should be careful in election matters, not to do anything that will make the court infamous. But the majority of Judges are very careful. They are good. They’re not corrupt as alleged.
“I remember that I was accused of being bribed with billions of naira in the Yar’Adua case. And I was compelled to go to court to sue for libel.
“I was awarded N25 million against a newspaper because I didn’t take a kobo from anybody. The same with my learned brother Niki Tobi of blessed memory. He’s a Christian – he didn’t take bribe but they went and publicised in Sahara and all sorts of things that we took bribes. No, we didn’t do anything like that.
“But that is the risk that we have as Judges, but we should do our job with a clear conscience and with the fear of God for the benefit of the society.”
Tobi asked: “You and the late Niki Tobi were accused of taking bribe, how did it make you feel?”
Ogebe responded: “Well I feel that was a professional hazard, there are so many people who don’t do anything about justice or anything, but they just open their mouth wide so when they said that it was based on ignorance and that’s important that the public be educated on how Judges operate.
“For instance the Yar’adua case, it was a notorious fact that certain things went wrong. Yar’adua himself as President did agree that there was some flaw in the process that brought him in but to prove it in court is a different matter.
“People did not produce enough evidence for us to overturn that election. We didn’t take bribe, nothing but based it purely on the law.
Tobi: “That’s what my lord Justice Onum was saying about evidence and prove before court and the issue of public confidence, and I think the same thing that Mr. Lawal, you say you’re not a lawyer but you have hung around lawyers enough I think you are one.
“We should give you an honorary degree in law because Mr Lawal has said the judiciary needs better communication but what unfortunately he does not know, and I think I would supply him with information, because I know he likes to read judicial ethics.
Ogebe: “Yes. So, you know that for the presidential [election], at the Court of Appeal level, there must be five Justices of the Court of Appeal, and not a single one of them can overrule the other.
“Everybody has his own opinion. They can disagree, but the majority judgment will prevail.
“Like my own, when I did the Yar’Adua, five of us all agreed and there was no dissenting opinion at all.
But when it went to the Supreme Court, there was some dissenting opinion.
“I think it was four to three, but the majority prevailed. So, there’s no single Judge that has the power to overrule.
“Even if you are a Chief Justice, you can be sidelined if your colleagues don’t agree with you.
“Judges have independent minds and there’s no way that you can force a Judge to agree with you.”
Importance of fearless, God-fearing Judges
Tobi: “Thank you. Very interesting.”
Ogebe: “You have the legislature, you have the executive, these are all politicians and then you have the judiciary.
“So if the politicians have disagreement with one another, there is no way they can resolve disputes within themselves, because both sides are interested; that is why they created the judiciary, which is supposed to be impartial, to be fearless, and to do the right thing.
“So as I said earlier on it is an onerous responsibility for the Judges to decide on these election matters, but somebody has got to do it.
“So that is why I enjoined that Judges who are involved in election matters must be courageous, must be fearless, must be God-fearing, and do what is right. To avoid bribery or partisanship and do what is right.
“I can’t see that ever changing because people are fighting each other over who to be President and then you leave it back to the politicians? What do you do?
“There must be somebody to decide the case, and … that onerous duty is upon the judiciary, in the Constitution. I cannot foresee any situation whereby you leave it to be a free for all fight. The judiciary is supposed to be an umpire in deciding such matters.”