CONFLICTING JUDGEMENTS IN THE NIGERIAN COURTS AND THE CJN'S LAMENTATION: MATTERS ARISING
The media was awash recently with the news that the outgoing Chief Justice of Nigeria, Justice Dahiru Musdapher,expressed concern over conflicting judgments from the various divisions of the Court of Appeal, as well as the Supreme Court.In his widely publicized speech at the Nigerian Monthly Law Reports Lecture Series at the International Conference Centre, Abuja.
The CJN was quoted extensively:"I must mention that quite a number of judgments from the Court of Appeal and a few from the Supreme Court appear to have created some confusion amongst practitioners and the general public.“This untenable situation further underscores the importance of this lecture.“We have witnessed a lot of confusion regarding the proper application of the principle of judicial precedent.The creation of several divisions of the Court of Appeal has also led to the unintended problem of conflicting judgments at the appellate court.Such judicial contradictions have a tendency to lead not only to confusion in judicial precedent but could cause untold hardship to litigants in their quest for justice.
These conflicting judgments not only confuse counsel but the public as well, further leading to uncertainty regarding the public perception of our ability to guarantee unequivocal justice.This portrays the judicial process as a game of Russian Roulette where any outcome is possible "
The Society of Rule of Law in Nigeria SRLN while commending the candour and the honesty of the CJN in finally admitting what has become a glaring malfeasance in the bench wishes to say that this is an admission of failure of the head of the judiciary in carrying out the reform he promised when he assumed duty few months ago. We believe these Lamentations are coming too late in the day at the twilight of his tenure.
At a time the CJN would have devoted valuable time of his short tenure on reforming the judiciary and redressing the mess, he was chasing the mundane issues of re-instating the suspended President of the Court of Appeal, Justice Isa Salami under whom the rot in the judiciary became an open sore, and whose acts of misconduct and issues relating to him are still subject of adjudication before the courts.
We recall that the CJN set up the Justice Lawal Uwais Judicial Reform committee of eminent jurists and this was applauded because of the expectation that the committee would proffer far reaching recommendations for the cleansing of the bench.
It is a matter of regret that the committee ended up woefully and downgraded its assignment to a "Committee for re -instatement of Justice Salami" despite the other pressing issues acting as clog in the wheel of Justice.
Our society submitted a detailed memorandum to the committee through the office of the CJN drawing attention to conflicting judgements at the Court of Appeal and made recommendations for redressing it. We drew attention to the pitiable situation the judiciary has found itself that no lawyer is sure of the " doctrine of stare decisis" or the correct precedent on several cases with similar facts particularly on election petition at the level of the Court Of Appeal.
Our memorandum to the Reform committee dated October 26, 2011 stated interalia:.......""......Stakeholders in the judiciary are now very much concerned about the conflicting judgments from the Appeal Court.
It would be recalled that during the conferment of Senior Advocate of Nigeria (SAN) honours on 17 lawyers in April, 2010, former NBA President, Oluwarotimi Akeredolu (SAN) had said: "The bar has noticed with increasing discomfiture the conflicting decisions emanating from our appellate courts.
"The Court of Appeal has found itself in an embarrassing quagmire arising from the disparate pronouncements on matters which are, as lawyers will say, 'on all fours' with all decisions reached by the same court.”
Even as far back as July, 2008, Justice Niki Tobi of the Supreme Court had noted while delivering a judgment that; “even though the Abuja Division of the Court of Appeal had delivered a judgment in a similar case, the Enugu Division of the court refused to follow that decision even when the facts of the case were the same, thereby creating confusion.”
Situations abound where facts of cases were the same in all fours but different judgments were given by the Appeal Court. For instance, in Agbaje vs Fashola (2008 6 NWLR Pt 1082 at Page 127-128 paras d-f ) and Fayemi vs Oni, facts of the cases were the same but different judgments were delivered.
Whereas, the Electoral Act 2006 stipulated that photographs of candidates must be embossed in the ballot papers and that of Mr. Jimi Agbaje, who was the candidate of the Democratic People Alliance (DPA) was not embossed in the ballot papers used for the election, the Appeal Tribunal in Agbaje vs Fashola per Adamu JCA upheld Governor Babatunde Fashola's election, saying it was not the fault of the party or the candidate.
Also, the use of colour of biro other than the one prescribed in the Electoral Manual was also dismissed as inconsequential in Agbaje vs Fashola supra.
However, in Fayemi vs Oni, the Appeal Court, in its judgment of February 18, 2010 nullified elections in 63 out of the 177 wards in Ekiti State just because accreditation was done with RED BIRO instead of BLUE BIRO stipulated by the Electoral Manual.
Also in its judgment of October 15, 2010, in the Fayemi vs Oni case, the Appeal Court concluded that there was no accreditation of voters in Ido/Osi LG, in spite of the availability before it of the relevant FORMS EC8A, EC8B, which had all the votes cast at the polling units and collated at wards and authenticated by all relevant agencies and parties. Added to this, the Appeal Court in its infinite wisdom shifted the burden of proof from the Petitioners to the Respondents in violation of the legal maxim; “He who asserts must prove.”
Again, in that particular case, the Appeal Court went further to give the appellants a judgment on an issue not pleaded before it, thereby turning itself to “Father Christmas”.
The Petitioners did not in their pleadings claim that election did not take place but rather that the elections that took place were fraught with irregularities, basis upon which the petition was brought before the Court. The simple principle of law of evidence is to the extent of Ss 135 & 136 and as stated clearly in the case of Adighije v Nwaogu (2010)12 NWLR (pt 1209) by the same court.
In Amosun vs Daniel, the Appeal Court presided over by Justice M.L. Garuba held that one Tunde Yadeka was not an expert in the examination and analysis of election materials. However, the same Appeal Court in Aregbesola vs Oyinlola ruled that Tunde Yadeka was an expert. Curiously enough, Justice Garuba who read judgment on Amosun vs. Daniel; and Justice Adamu Jauro, who was a member of the panel, were also members of the panel on the Aregbesola vs Oyinlola. These two cases with similar facts but on which two different judgments were delivered were decided within a period of less than two months!
Also on the Osun State matter, involving Governor Rauf Aregbesola of the Action Congress of Nigeria (ACN) and Prince Olagunsoye Oyinlola of the Peoples Democratic Party (PDP), the Appeal Court turned itself to a FATHER CHRISTMAS, cancelling all votes in FIVE Wards that were not in contention before their Lordships. These wards include Ward 7 Boluwaduro Local Government, Ward 7 Ifedayo Local Government and the three wards in Modakeke, Ife East Local Government.
In Aregbesola’s petition, he stated thus: “Your petitioners aver and will contend at the trial that except for three wards viz: Modakeke Ward 1, Modakeke Ward 2 and Modakeke Ward 3, there was no valid election conducted in compliance with the Electoral Act in Ife EastLocal Government.”
In Paragraph 60, Aregbesola said on Bolorunduro Local Govt thus; “It was only in ward 7 where the people of the town barricaded the entrances to the town while voting lasted that voting was concluded and results announced.”
But the Appeal Court cancelled all votes in all the above wards that were not in contention!
The same Father Christmas approach was also adopted in the Appeal Court judgment of February 18, 2009 in Fayemi vs Oni, when the court ordered a rerun election in the THREE WARDS of Okemesi-Ekiti, EkitiWest Local Government in spite that the three wards were not mentioned in the petition at all....".
If we add the most embarrassing Senator Joy Emordi's case of Anambra and Senator Igbeke 's case, then we can only imagine the level of loss and embarrassment to litigants as the CJN now admitted in his speech.
The CJN had all the time in the world to direct his energy to redressing this problem but he chose to come out to lament on the same situation he and his reform committee refused to act upon.What he can do now is to include this failed promise and agenda to his hand over notes.
Thankfully, Justice Aloma Mukhtar the first woman to get to the apex court has been recommended as the next CJN.
We call on the incoming CJN to devote considerable time to cleanse the Augean stable on the issue of Conflicting judgements. This was one issue under Justice Salami that has robbed many Nigerians of justice and introduced black market judgements to the litany of abuses in the judicial system.
Written By Comrade Chima Ubeku