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The Oputa I Know


By Theo Nkire
I only came into close contact with the Honourable Chukwudifu Akunne Oputa, retired Justice of the Supreme Court of Nigeria in 2009 when I did the book OPUTA ON FAIR HEARING.  Until then, I had only known him by reputation (and from a distance) as the first Chief Judge of the old Imo State.  However, as a young lawyer growing up in the profession in Aba in the early eighties, I remember my then Principal in chambers, the indomitable Anthony Shedrach Nwala, of Lincoln's Inn, (in my estimation, one of the finest lawyers that ever lived) feeling ever so grateful that a distant relation of the great Judge had retained him to hold a watching brief over a small Magistrates Court matter in which the great man's cousin was complainant.   Just because that cousin bore the name, OPUTA, Mr. Nwala's joy knew no bounds and he elected to serve pro bono.  Such is the magic of the Oputa name!

When I took the work (Oputa on Fair Hearing) to him, the great man then eighty-five, would not have me publish anything until he had read every word contained in the 263 page book and he indeed, took his time to read through over a five week period during which he from time to time invited me over for a chat over the work.  It was indeed, during those sessions that I came to know the man, Oputa; his life and times, his humility and his deep Christian (catholic) faith; his love of country and his belief in the universality of man.

Oputa was a man of impeccable character and great learning.  More than anything else, his character was his greatest attribute for in my view, on issues of character, Oputa stood head and shoulder above all other; bestrode his world like a colossus and shone like the morning star in the firmament.

It was my love of him and his work that led me to do the book OPUTA ON FAIR HEARING in his honour and to his eternal glory.  In my introduction to that work, I   wrote of Oputa and his character:

[n]ever in his long career as a judge (a career spanning over two decades) was even a mere suspicion of impropriety ever cast on him (p.iii);

and I can now add with no fear of contradiction: never in his long career as  teacher, lawyer, judge, counselor, public advocate or private citizen was ever the slightest suspicion of impropriety cast on him.

Commenting on Oputa's command of language in 2009, I wrote at page (v) of the same work OPUTA ON FAIR HEARING

[a] painter in words, Oputa's use of the written word as an art form is proverbial.  His sentences are short, crisp and captivating.  He knows how to pick the right words and set them down in time and space to the reader's ultimate advantage.  An accomplished craftsman, his use of language as a tool for communicating ideas leaves no one in doubt about his abilities.  Art is the one thing he shares in common with his offspring.  While the younger Oputa expresses his art in song and dance, the older Oputa expresses his in word and language.  Of course glamour is the one thing each Oputa brings to his art'.   

A peep into some of his judgments will bear me out.  Introducing his concurring judgment in TUKUR v. GOVT. OF GONGOLA STATE [1989] 4 NWLR (Pt. 117) 517 Justice Oputa said:

I have had the privilege of a preview in draft of the illuminating lead judgment just delivered by my noble Lord, and learned brother, Obaseki, JSC, and I agree entirely and completely with his arguments, his resolution of the various issues, and his final conclusion that the appellant's appeal be dismissed and the respondent's cross appeal be allowed.

After he observed from the facts that though the cause of action arose from the old Gongola State the suit had been taken out in Kano, Justice Oputa wondered aloud why the choice of Kano.  Hear him in his own words:

[f]rom the above facts, even before considering the Claim or Relief sought which normally should determine jurisdiction, one initial question recommends itself – Why go to Kano State to sue for a cause of action which arose in Gongola State?

Writing the opinion of the Court in Olaniyan v. University of Lagos [1985] 2 NWLR (Pt. 9) 599 Justice Oputa said:

The main issue, and in fact the only issue in this appeal is:- Were the contracts of service of the Appellants validly determined?  The trial Court said No, the Court below says yes.  Which Court is right?

In OTAPO v. SUNMONU [1987] 2 NWLR (Pt. 58) 587 where the issue in controversy was the failure of the Court of Appeal to give the Appellant any hearing at all, Justice Oputa said:

a better example of a denial of hearing let alone fair hearing can scarcely be found

According to the eminent jurist,
Almighty God gave us two ears.  So we have to hear both sides.  To hear one side to a dispute and refuse to hear the other side is a flagrant violation of the principle of eternal justice.

After observing that Professor Olatunbosun had not been invited to defend himself at the meeting of the Board of NISER at which the decision to terminate his appointment was taken, Justice Oputa resorted to the bible story of Adam and Eve and said:

[t]hat no man is to be judged unheard was as old as creation, as old as Genesis and as old as the Garden of Eden.

He reminded us that after Adam and Eve sinned God did not condemn them unheard.  According to His Lordship, it was only after God had heard them in their defence that:

Almighty God proceeded to pass his sentence.  He expects us to do the same.  (See Olatunbosun v. NISER [1985] 3 NWLR (Pt. 80) 25)

In Josiah v. State [1985]1 NWLR (Pt. 1) 125 Justice Oputa recalled (p. 96 OFH) that:

When the Court indicated that it will allow the appeal and remit the case back for a “fair trial” and “a fair hearing” Mr. Rhodes appeared to resist this on the ground of double jeopardy.

Commenting on Mr. Rhodes' attitude on this issue, Justice Oputa said:

[on] the merits of this case, Mr. Rhodes will be batting on a very slippery wicket.

Stating that any order made acquitting and discharging the Appellant in that case would not be an order made in the interest of justice, Justice Oputa said among other things, that:

………..justice is not a one-way traffic.  It is not justice for the appellant only.  Justice is not even only a two-way traffic.  It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, 'whose blood is crying out to heaven for vengeance' and finally justice for society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.

Further commenting on the issue of sacrificing justice at the alter of mercy in the case on appeal, Justice Oputa said:

I will not attempt any such sacrifice, certainly not on the shrine of mercy.  On the contrary they cry out eloquently, though silently, for the shattering strokes of retributive justice. (p. 97 OPH)

Delivering the lead judgment in Adegoke Motors Ltd. v. Adesanya [1989] 13 NWLR (Pt.109) 250 at page 275A Justice Oputa considered the powers of the Supreme Court (as the final Court in the land) to review its earlier decisions and said:

We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.

On relating issues to the facts, Oputa repeated what he said in his judgment in Gani Fawehinmi v Nigerian Bar Association & ors. (No.2) (1989) 2 N.W.L.R. (Pt.105) 558 at page 650.

“Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even there, merely as a guide-.

What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.”

Oputa was the greatest judge of our time.  He loomed large among his peers.  To the Honourable Mohammed Bello, former Chief Justice of Nigeria, Oputa was the Cicero of the Supreme Court.  To many of his contemporaries, he was the Socrates of our times.  I call him our own Lord Denning.   His work and the contributions he made to the development of our law and our profession will long outlive him.  Oputa shall never die.  He shall live forever; for even as he lies lifeless, he shall continue to live among us in his works and deeds.  We shall always remember him as the one who lived and worked among us and died without blemish.  Never in the history of Nigeria has one man brought so much joy and satisfaction to so many through his life and work.

Oputa was the incorruptible judge.  History shall never forget he was here.  Posterity shall always remember.  There can never be another Oputa.  The template with which he was made has never been replicated.  Nigeria may never see the likes of him in a long time to come. (Much of this tribute has been culled from the book: OPUTA ON FAIR HEARING).

                                     Theo Nkire is a former Attorney-General of Abia State