Eso...And a Daniel Came to Justice

20 Nov 2012

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Justice Kayode Eso

Professor Yemi Akinseye-George, SAN gives an illuminating and deep exposition of justice kayode eso through his judgments

The Hon. Justice Kayode Eso, C.O.N. Justice of the Supreme Court of Nigeria 1978-1990, Christian: born 18th September, 1925, Ilesha, Oyo State. Education: Ilesa Grammar School, 1940-1944; Trinity College, Dublin University, 1949-1953, Cambridge School Certificate (Grade 1) December 1944; London 'Matriculation, 1946; B.A. (Hons.) LL.B, 1953, M.A. 1956. Professional Career: Private Legal Practice, 1953-1960, Senior Crown Counsel, 1960-1962; Principal State Counsel, 1962-1963;Principal Legal Draftsman, 1963-1965, Judge of High Court, 1965-1967; Justice of the Court of Appeal 1967-1975; President, Court of Appeal 1975-1976; Chief Judge of High Court of Oho State 1976-1977; Justice of the Supreme Court of Nigeria, 1978-1990.

"Justice Sir, is the greatest interest of man on earth. It is the ligament which holds civilised nations together” (Daniel Webster).

This statement no doubt summarises the essence of the ideal of justice and its universal character. It however immediately raises the question: What is justice? Perhaps no other question has evoked more controversy amongst jurists and thinkers the world over. It will be futile to attempt to resolve that controversy here. It suffices for our present purpose to note that 'justice requires that freedom, equality and security be accorded to human beings to the greatest extent consistent with the common good.' (Bodenheimer (1979).  And that the administration of justice involves an impartial and fearless act of resolving disputes within a legal order having regard to the human rights which that order protects. (Wortley).

At the centre of the administration of Justice is the 'Judge'. He is called upon to apply the constitution, statutes as well as judicial precedents in the resolution of disputes. He is thus an umpire or referee authorised to oversee the interaction of the constituent elements of a given geo-polity.

The notion is prevalent in contemporary times that the purpose of law which the judge must constantly bear in mind is to secure for the individual certain fundamental rights which attach to man as man because of his humanity.

This notion perhaps prompted Ronald Dworkin (1987) to reject what he described as the 'strict constructionist' approach to constitutional interpretation which plays down the purpose of the constitution and places emphasis on its wording. Rather he advocated a liberal approach according to which a judge consciously seeks to expand the scope of the rights of man as the ultimate goal of the constitution and the legal system. In his words;

"Constitutional law can make no genuine advance until it isolates the problem of rights against the state and makes that problem part of its own agenda. That argues for a fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place.. There is no need for lawyers to play a passive role in the development of a theory of moral rights against the state..."

The foregoing statement clearly depicts the central importance of the concept of rights as the major issue in contemporary legal, moral and political philosophy.

While one agrees that "the language of rights has become central to legal and political philosophy" the truth remains that in reality, 'might' has continued to undermine the enjoyment of the rights of man. Professor Peiris has described these modern times as 'the age of particular vulnerability of the citizen in consequence of the rapidly expanding frontiers of government. Another learned writer has aptly described the tension between right and 'might' in the following manner:

"The history of men has been a constant, continued, continuous and sometimes very bitter struggle against the forces that sought and still seek to enslave man. It has been a struggle to reassert or redefine or else restore the dignity of man. Human nature being what it is, there has been that constant and inevitable tension between might and right"

At the centre of this unending struggle everywhere is the lawyer and more especially the Judge who is saddled with the responsibility of resolving the conflict between the "centripetal and centrifugal" forces of 'right' and 'might' in the society. More than ever before, there is a compelling need to resolve the conflict between the need for governments to govern, and the necessity to protect the rights of citizens against the power of the State. The responsibility remains that of the judicial officers to carefully endeavour to strike a balance between these opposing claims. The view has been expressed and we think rightly that the performance of a judicial officer is judged by his successful balancing of such claims and interest and his ability to resist the forces which often attempt to divert him from his appointed mission. That appointed mission must of course be justice according to law for the judge must perform the duties of his office in accordance with the constitution and the law.

It will be observed that judges in developing countries face a more challenging task than their colleagues in the developed countries because of the prevalence in the developing countries of repressive and unjust laws coupled with the need to fuse 'received' foreign laws with the indigenous laws of such countries. (Aguda)

The foregoing is no doubt a call to judicial activism on the part of the judges in the developing countries. They are urged to provide a mighty fortress against repressive laws and to ensure that the state is subject to law.

This is certainly no easy task for the Judges in developing countries not only because of the intolerance, impatience and immaturity of the politicians (civilian or military) who often dominate the government in these countries but also because of the "powerlessness" of the Judiciary which by its nature lacks the coercive apparatus for enforcing its decisions. These considerations perhaps led one learned writer, Chongwe to reject any activist role for the Judiciary in developing African Countries. As far as he is concerned "Judicial restraint" or even "Judicial passivism” rather than activism should be the policy of Judges in the emergent African States. According to him:

"Judges everywhere must take care to exercise judicial restraint in order to preserve their independent existence. Judges in young African nations must be especially careful. They cannot confront or challenge executive authority except in a carefully modulated manner.”

This view of judicial restraint or judicial 'leniency' towards the executive is retrogressive as it is capable of thwarting effective performance of the constitutional role of our courts. In our view the entrenchment of fundamental human rights in our constitution imposes on the courts an obligation of greater activism.

It is only through such activism or-dynamism that the Judiciary can live up to its appellation as “the last hope of the common man."

It is submitted that the era is by gone when Judges can passively indulge in the mechanistic ritual of declaring pre-existing law or simply applying precedents to new situations. On the contrary Judges must now galvanise and if possible extend the legal frontiers of judicial power as well as broaden the scope of the fundamental human rights of the citizens. Moreover, it behooves the Judges to consciously and deliberately seek pragmatic ways of ensuring a balance between the exercise of governmental powers and the claims by the individual to fundamental liberties. It is the extent to which the Judges are able to secure such a balance that their performance individually and collectively will be assessed.

It thus becomes pertinent to observe at this junction that Chongwe (supra) is mistaken in thinking that judicial activism necessarily involves a confrontational or anti-government stance by the Judiciary. Indeed, judicial activism means no more than Judicial dynamism. Thus it must be emphasised that an activist Judge need not be confrontational, meddlesome or combatant.

This fact is clearly borne out by the numerous Judgments and opinions of Justice Kayode Eso widely hailed as the leading exponent of Judicial activism in the country.

Schwartz has stated and we agree with him that the quality of justice depends more on the quality of men who administer the law than the content of the law they administer. Thus while Lord Coke may be right that the administration of law requires men who are learned in the law through long study and experience, the fact cannot be over-emphasised that in addition to his learning and experience, a judge must be imbued with sufficient courage, fortitude, integrity and impartiality in order to live up to the onerous responsibilities of his high office described above. This in our view is a sine qua on it for the dispensation of 'Justice with a human face'

The essence of the foregoing is to provide the background against which the judgments of the Justice Kayode Eso, an epitome of judicial fortitude and dynamism, will be considered. Some of the leading judgments of this illustrious Judge in the course of his judicial career which has spanned nearly a quarter of a century are briefly highlighted. An attempt is made to discover, describe and evaluate in policy terms the legal doctrine which features prominently in his leading judgments especially since his elevation to the Supreme Court in 1978. It will be observed that an analysis of the contribution of individual judges to legal development in the country has as yet been scarcely carried out.

While commenting on the contribution of judges in England to the legal development of that country, Stevens has said that only a few English judges clearly merit an extensive intellectual biography. This is no doubt equally applicable to our country, where many Judges are wont to compare facts passively without trying to exert any influence of their own guided as it should be by any well-articulated principle of jurisprudence or of the function of law in a society like ours. In fact some of our judges even at the Supreme Court level content themselves largely with the mechanistic function of declaring pre-existing law or simply applying precedent to a new set of facts arising in each case. Some are even timorous and as a result, watch the 'mood' of the powers that be and carefully bend legal principles to suit the so-called powerful interests or groups in the geopolity.

But some of our judges stand out. These are those who refuse to be compromised and who dispense Justice without fear or favour. Their allegiance is to Justice rather than to men. To them, Justice must be done no matter whose ox is gored. Their Judgments speak for themselves. They testify eloquently to their predilection for substantial justice and equity.

After all Holmes has stated that a Judge's "unstated ideology" is implicit in the Judgment he writes. We can confidently say that through his judgments, Justice Kayode Eso has secured for himself a glorious chapter in the annals of our legal history. His commitment to 'substantial rather than 'cosmetic' Justice as well as his energetic and courageous drive place him on a high pedestal of an apostle of justice with a human face in Nigeria.

A careful perusal of his numerous judgments will clearly reveal his uniquely practical approach to the question of protection of fundamental human rights in the country. As far as he is concerned human rights are not 'mere rights' but are the "primary condition for a civilised existence" in the society".  Thus to him no society can truly lay claim to being civilised when the fundamental human rights of its citizen are not accorded due recognition. His holding in a number of cases that human rights stand above the ordinary laws of the land and that they are antecedent to the political society shows that the enjoyment of these rights should not be subject to the whims and caprices of the political rulers of the day. Apart from merely recognising the importance of these rights, his Lordship consistently sought through his judicial and other pronouncements practical ways of giving effect to them. For instance he coined or at least popularised the phrase "executive lawlessness" to denounce abuse of power and violation of human rights by governmental functionaries. (OJUKWU v MIL. GOV OF LAGOS STATE).

He also frequently opposed harsh legislations which seek to divest the courts of jurisdiction in matters of fundamental human rights protection. He sought to weaken the impact of such legislations either by constructing them strictly according to their letters or nullifying them altogether where the law permits. (GARBA v FED. CIVIL SERVICE COMMISSION (1988)).

On the challenge of human rights enforcement by the Judiciary in a developing country like ours, Justice Kayode Eso always adopted a teleological approach reminiscent of sociological jurisprudence to the extent that it may not be out of place to consider him one of the leading sociological Jurists of contemporary times. In the case of ARIORI v ELEMO, his Lordship identified the special duty on the part of the Supreme Court in safeguarding fundamental rights in the peculiar social, cultural, political and economic context of the Nigerian Society. In his words:
"Having regard to the nascence of our constitution, the comparative educational backwardness, the socio-economic and cultural background of the people of this country and the reliance" that is being placed and necessarily has to be placed as a result of this background on the courts, and finally, the general atmosphere in the country, think the Supreme Court has a duty to safeguard the fundamental rights in this country which, from its age and problems that lire bound, to associate with it is still halting an experiment in democracy. "

It is submitted with respect that it is only such a pragmatic view as the foregoing borne out of a deep insight into the proper role of the law and of the courts that could facilitate the much-desired peaceful transformation of our legal system from a backward, oppressive and an unjust one to a progressive, humane, fair and equitable one.

Today the view expressed in the dictum quoted above remains as germane as it was several years ago when it was handed down by Justice Eso. This probably prompted him to restate it even more pointedly in the case of FAWEHINMI v AKILU that 'the court has a constitutional responsibility, also legal and sociological, to interpret the provisions of the constitution in the light of the socio-economic and cultural background of the people of this country. For it is for those people's background that the constitution is fashioned".

This to him must certainly be a major part of the functions of the court.

An attitude similar to that depicted above probably informed his Lordship's opposition to the indiscreet application in Nigeria of legal concepts, principles and precedents developed in other countries with different socio-cultural background. Pursuant to this, he committed himself to the task of bringing the social conditions prevalent in our country to bear on received common law concepts and principles. One of his most remarkable achievement in this regard is his graphic illustration of the "reasonable man's standard' in the Nigerian context. That was in the case of ADIGUN v ATTORNEY-GENERAL OF OYO STATE where his Lordship offered the most down-to-earth explanation of the reasonable man standard ever given by any Nigerian court. To him, the standard of the ordinary citizen or reasonable man in England is certainly inapplicable in Nigeria. In his words:

“It is not vain that English law invented the standard of the man in Claphan Omnibus in describing the ordinary reasonable citizen. But then, except one has been to England and appreciated the man that goes to work in an Omnibus in Claphan area in London as against the executive who drives in his Rolls Royce in Mayfair, the phrase "Claphan Omnibus" is completely lost to him. And so, in this country in trying to find out the level of justice, the yardstick of the reasonable person" has been taken... A reasonable man here may be a pleasant housewife, shopping for meal in Sandgrouse and not the wife of an executive shopping for her grocery in Moloney supermarket, he may be the ordinary worker in the Kano Native city, living on his "Tuwo" and not the Senior Assistant Secretary cruising in his officially produced Air-conditioned Peugeot 505 SR to his air-conditioned Office, or he is the plain woman in "Okirika" dress and not the Voile-laced fashion enthusiast. It is what this reasonable 'man' sitting as an impartial observer thinks that would matter."

In the same vein his Lordship, in a number of cases urged the abrogation in Nigeria of Laws which perpetuate a colonial mentality in our laws. In advocating the abolition of the anachronistic common law doctrine of State Immunity from tortuous liability, he lamented over its application in Nigeria several years after it had been jettisoned in England from where it originated. It is heartwarming however, to note that the said doctrine is no longer part of our law in this country having been impliedly and expressly abolished by the 1979 and 1999 Nigerian Constitutions.

Even in the area of procedural law, Justice Eso minced no words in rejecting imported English rules which serve to perpetuate a colonial mentality in the country. In the case of SODIPO v LEMMIKAIMEM he put his views in this regard thus:

"I do feel... that the time has come when (the) Rules of Court in this country should start to exist without necessary reference to or dependence upon English Rules. Such dependence does not help the wiping out of colonial mentality in the laws of this country."

Pursuant to this, his Lordship further advocated that the rules of the Nigerian court must commence a voyage of its own, which is purely Nigerian and which could assimilate or shed off some cumbersome English procedure which is designed and amended from time to time to suit the English judicial system.

In keeping with his unflinching commitment to substantial justice, Justice Kavode Eso has in a number of cases pointed out that justice must not be sacrificed on the altar of technicalities. He has also endeavoured to bring this principle to bear on many cases handled by him for instance, in the case of GREEN v GREEN, he dissented from the view of the majority of the Supreme court to the effect that the Plaintiff’s/Appellant's case ought to have been dismissed by the High Court rather than being struck out by the court for want of proof or necessary parties though the approach taken by the majority of the court is technically correct. Justice Eso found it objectionable on the ground that it worked injustice in that particular case. He voiced his disagreement with the decision of the majority of the court thus:

"If the trial court had dismissed Abusi (Plaintiff) (now Appellants) claim, then the illegally produced Solomon MD... Green is advertently, being wrongly assisted to stool by the court!!... The sole aim of the court is to seek justice. True, it must be justice according to law but when parties are available, who are so affected by a claim, pleadings, evidence and a subsequent order would spell detriment or indeed incalculable wrong, to what they consider their right, and they have either, technically or inadvertently, been excluded from stating their own side to the story, it is with respect waving good-bye to justice!

We respectfully agree that the approach of the majority of the Supreme Court in that case seems to overlook the justice of the matter. It would have been better if the Appellant's case had merely been struck out so as to give him another opportunity to have the substantive issue considered by the court. This, in a nutshell is the summary of the approach adopted by Justice Kayode Eso in the case of GREEN v GREEN. It is in keeping with his Lordship's stated philosophy that substance is more important than mere form and that justice can only be done if the substance (merit) of the matter is examined. In his view, the court and especially the Supreme Court has a duty to ensure that "justice is done and not inhibited by any paraphernalia of technicalities.'

It is thus hardly surprising that in the case of OREDOYIN v AROWOLO his Lordship declined to look too closely into the "technical" issue of the locus standi of the appellants but rather chose to deal with the substantive matter which he considered more important to the parties and their entire community. These and a number of other cases eloquently testify to the practical approach of Justice Kayode Eso to substantial justice.

One other aspect of the Nigerian law in which Justice Eso has made a remarkable impact is in the handling of election cases. .He disagreed with the majority of his colleagues in the Supreme Court in the case of NWOBODO v ONOH when they held that the allegation of falsification in the petitioners petition must be proved beyond reasonable doubt under section 137(1) of the Evidence Act. Rather, he adopted a liberal approach which permitted the petitioner to abandon the allegations of falsification in his petition and prove his case as a purely civil case. A similar approach was later adopted by the overwhelming majority of the Supreme Court in the case of OMOBORIOWO v AJASIN  and UKPABI v TORTI.

But in matters touching on the discipline of the law Justice Eso seems to be quite strict. In a number of cases he minced no words in rebuking judges who misused their power or lawyers whose conduct fell short of that required of the legal profession. For instance while sitting as an appeal Judge in the Western State Court of Appeal, his Lordship, criticised a Judge of the lower court who delivered a 7-line Judgment in a contentious matter without stating the reasons for his decision! At the Supreme Court too, he had cause to call upon the authorities to look into the conduct of a Judge who "set himself as a terror ferreting an adversary with warrant of arrest ". He also had occasion to warn trial Judges against the temptation of descending into the arena and taking sides with parties in matters before the Court. Moreover, he resented any notion of "judicial Omnipotence or judicial tyranny" under which a judge could do whatever he considers to be in the interest of justice irrespective of the rules of court. "A Judge", he posited "must be bound by rules". However, in a number of cases, his Lordship robustly defended the integrity of the Court. Thus while appreciating the duty of counsel to defend his client to the best of his ability, he resisted any attempt by counsel to scandalise the court by lightly accusing it of bias without adducing sufficient facts in proof thereof.  He also detested any attempt by overzealous counsel to turn the court into a mere rubber stamp or an automaton. Hear him:

"There is no valid procedure of law that makes a court of law a mere rubber stamp. A Judge is certainly not a robot, nor an automaton. In every action before the court, in every step taken by a Judge, his discretion is called into play, whether in interpreting the law or in deciding an action one way or the other. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are to be fed into file machine called Judex."

Nevertheless, he often warned Judges against injudicious exercise of their discretion. In one case, he lambasted a judge who showed impatience resulting in an indiscreet refusal of adjournment. But in as much as he endeavoured to defend the dignity of the Court, Justice Eso advocated 'judicial restraint’ in the handling of contempt proceedings.

He agreed with Lord Denning that the jurisdiction of the court to convict for contempt should be sparingly used and that judges must rely on their conduct itself to be its own vindication. Restraint should however, not be carried to the extent of permitting the court to be scandalised.

The foregoing are but few examples of the different ways in which his Lordship, Justice Kayode Eso, has performed the onerous functions of his judicial office.

Some of his best decisions include:  Saude v. Abdulahi (1989) 4 N.W.L.R. (Pt. 116) 387 at 419,Ransome  Kuti v Attorney-General of the Federation (1985) 2 N.W.L.R. (Pt.6) 211 at Pp.229-230;  Ojukwu v. the Military Governor of Lagos State (1986) N.W.L.R. (Pt. 18) 621; Garba v. Fed. Civil Service Commission (1988). N.W.L.R. (Pt. 71) 449 at 465; Peenok v. Hotel Presidential Ltd. (1982) N.S.C.C. 511; State v. Gowon to & Ors (9183) N.S.C.C. 104 at p119; Arcon v. Fassassi (No. 2) (1987) 3 N.W.L.R. 1 at p. 4; Nwobodo v. Onoh (1987) 1 & 2 I.U.L. R.p.7; Ukpabi v Torti (1984) 1 SCNLR 214; Adewunmi v Aduroja (1975) NMLR 125; Ikonne v C.O.P. Imo State & Anor (.1986) 2 N.S.C.C. 1130; Akinfe v. State 3 NWLR (pt. 85) p. 729; A.R.C.O.N. v. Fassassi (No. 2) (1987) 2 NWLR (Pt. 39) P.I at p.5. Fawehinmi v. Akilu (1987) 4 N.W. L..R. 797 at 843;

Udo v. State (1988) 3 N.W.L.R. (Pt.82) 316 at 337; Atake v. A. G. Fed. & Anor (1982) N.S.CC 444 at 472.

Kayode Eso is not dead and cannot die. He lives on in the hearts of millions of his admirers. His judgments will continue to illuminate our search for justice with a human face.

Akinseye-George, SAN a legal practitioner and consultant, is co-author (with Emeritus Professor J.F. Ade-Ajayi) of ‘kayode Eso: The Making of a Judge’

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