By Onikepo Braithwaite
I have always defended the Nigerian Judiciary, because I believe that there are more good eggs amongst judicial officers than bad ones, and therefore, someone has to come to the defence of the ones who are faithful to their oath of office. Doesn’t even the Bible say something about letting 100 guilty people go, just to free one innocent person? It would be unfair to tar that innocent man, with the brush of guilt. Be that as it may, from time to time, when some judgements are handed down, it does make one wonder about judicial officers and the thousands of other judgements that the public is unaware of, when even judgements that command public interest like those concerning election petitions, are sometimes somewhat perverse.
CA/KN/EP/GOV/KAN/34/2023 – Yusuf Abba Kabir v APC & Ors
The recent judgement on the Kano State Gubernatorial election petition (Kano judgement), is one of the ones that certainly makes one wonder on numerous levels. For the first time in history, since I qualified as a legal practitioner 32 years ago, the initial thought that crossed my mind after the ruckus of the controversial Kano judgement was, “What is the definition of a judgement? Is it what is read in open court, or what is written in the certified true copy of the judgement (CTC) or both”? I have never seen them differ before.
It is trite law that, a judgement is the final decision of a court. It is usually read in open court, and a CTC is a written copy of what was read in open court, signed by the Judge who delivered it, and certified by that trial court as true. Even if sometimes what is read in court is an abridged version of the full judgement, or the reasoning behind the judgement is not provided at the time the decision is read in open court and postponed to be given on a later date, the ‘ratio decidendi’ that is, the binding part of the judgement, the disposition in the judgement, remains the same – when it is read and when it appears in the CTC. Definitely, it is only the CTC of court proceedings and the judgement, that are recognised as a complete true record of court proceedings. In fact, you require a CTC of the judgement to file your notice of appeal, while the CTC of the record of proceedings at the lower court, is transmitted to the higher court that will hear the appeal – that is how crucial CTCs are. But, all the same, can we just discountenance the judgement that is read in open court? I think not.
I must say that I have never seen a situation where the ratio in the CTC of a judgement is somewhat of a somersault, in comparison to what was read in open court, or where it gives both opposing sides victory, like the Kano judgement! This is a negative occurrence, that must be stopped immediately, and not be allowed to develop into a trend. Should litigants begin to say that they are awaiting the CTC of the judgement to compare it with what was read in open court, to determine how a case is decided?
You also have the ‘obiter dicta’ of the judgement, which means ‘that which is said in passing’, that is, things said by the way by the Judge, that are not necessary for the decision, and are not a binding part of the judgement. See the case of Afro-Continental (Nig) Ltd v Ayantuyi & Ors (1995) LPELR-218 (SC) per Anthony Ikechukwu Iguh, JSC.
The Slip or Pencil Rule
Last week, I was in court when the trial Judge read his judgement, found a Defendant guilty of manslaughter, and sentenced him to life imprisonment, to serve at least 21 years in prison, taking into consideration time already served which was about 8 years, therefore, leaving a balance of at least 13 years to be served. If the CTC of the judgement emerges and we see 2 years imprisonment instead of 21 years, we can say that it is a typographical error in which the slip or pencil rule is applicable. The typist wrote 2 instead of 21. Or even that the CTC said ‘not guilty’ and mistakenly included the word ‘not’ instead of only ‘guilty’, quite a careless mistake, but, we could still call it a typographical error. But, then, if the CTC reads that the Defendant is not guilty and should be released from prison immediately, what then, do we call it? Another judgement?
In Nwana v FCDA 2007 11 N.W.L.R. Part 1044 Page 59 at 78 per Chukwuma-Eneh, JSC, the Supreme Court held thus about the ‘Slip Rule’: “….A slip under the banner of the ‘Slip Rule’ connotes accidental slip or omission as clerical mistakes in a judgement or order capable of being amended, even at times, without notice to the other party….It must not transcend the entire proceedings, as to have a devastating effect going to the root of the decision”. The Slip is not meant to vary the operative part of a judgement, so as to substitute a different form – see the case of Minister of Lagos Affairs v Chief O.B. Akin-Olugbade 1974 9 N.S.C.C. Page 489 at 491-492 per Taslim Elias, CJN. In fact, in the latter case of Berliet Nig. Ltd v Kachalla 1995 9 N.W.L.R. Part 420 Page 478 at 495-496 per Belgore, JSC (later CJN), the Supreme Court held that: “The court, once judgement is entered, cannot alter its decision. What can be altered, is not as to the substance, but as to minor errors, whether spelling or that of typographical, or in form of mathematical error wherein the correct figures can be entered”.
I believe that in the Kano State Gubernatorial Court of Appeal decision, in applying the aforementioned authorities, it is clear that the judgement is contradictory, and it goes beyond typographical or clerical errors, the contents of the CTC contradicting what was read in open court, and even written parts in the CTC contradicting themselves, going to the root and substance of the decision. When Hon. Justice Moore Adumein, JCA read his lead judgement in open court, he upheld the judgement of the Election Petition Tribunal sacking the Appellant, NNPP’s Governor Yusuf, and dismissed the appeal. On the other hand, the CTC of his judgement dismissed the appeal and in the same breath, set the Election Petition Tribunal judgement aside, thereby also giving victory to the Appellant, and even awarded N1 million costs in his favour. In short, the Kano judgement gave both the Respondent and Appellant victory in the same case! The oral judgement gave the Respondent victory, while the CTC gave the Respondent and the Appellant victory. Such a decision at this level of the court hierarchy, the Intermediate Court, is nothing short of strange and shameful. I submit that, in this case, the slip definitely varied the operative part of the judgement, and substituted a different form.
Had the slip rule been applicable, in this case, notice of effecting corrections would have had to have been served on the Appellant, whose Counsel, Chief Wole Olanipekun, CFR, SAN, publicly opposed any such correction. That wouldn’t have worked. I however, submit that, the Court of Appeal was Functus Officio in the matter at the time corrections were being discussed, and only the Supreme Court can correct whatever controversies or errors are in the CTC of the Kano judgement, in its own judgement, when both parties appeal on the areas of the Court of Appeal judgement that do not favour them. It is an established principle of law that, a court cannot sit in appeal of its own judgement, and since the contradictions in the CTC of the Kano judgement are not just typographical errors, but go to the root and substance of the decision, it may amount to sitting as a court of appeal over its own judgement, if the Court of Appeal had ‘corrected’ the CTC as it had sought to do.
This is not to say that a court doesn’t have the discretion, to set aside its own judgement in exceptional circumstances; but, in the Kano case, the constitutional timeline of 60 days for the Court of Appeal to hear and determine an election petition appeal set by Section 285(7) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) already lapsed, thereby making it lawfully impossible for the Court of Appeal to exercise this discretion, which can be done in a situation where 1) when a judgement was reached per incuriam; or 2) where the judgement was erroneous in law; or 3) where the judgement is contrary to public policy or occasioning a miscarriage of justice or perpetuating injustice – see the case of Iteogu v LPDC 2018 LPELR-43845 (SC). In any event, since the Court of Appeal isn’t the final court in this case, correction of errors of the lower court by the appellate court, is the essence of lodging an appeal.
Recruitment of Judicial Officers: Facing the American-Type Judicial Recruitment Panel
So, what could be the reason for this monumental ‘boo-boo’ by the Court of Appeal? Mischief on the part of the typist, and carelessness on the part of Adumein JCA who delivered the lead judgement, because if His Lordship had taken the time to read the last page of the judgement, he would have observed the contradictions therein. From what they stated in their concurring judgements in the CTC, it appears that Adumein, JCA’s brother Justices read the draft form of the judgement, and not the CTC.
All of the Justices in this case also dumped the principle of Stare Decisis and Section 29(5) of the Electoral Act 2022 (EA) (though one cannot ignore the argument that this provision is somehow risqué), went against the principles established in a plethora of Supreme Court cases (and even their own court) including the latest Presidential Election Petition case – Atiku Abubakar, Peter Gregory Obi & Ors v Bola Ahmed Tinubu & Ors on the issue of membership of and sponsorship by a political party to run for election, an issue that was resettled in the case of Labour Party Candidate, Peter Obi, whose membership of and sponsorship by the Labour Party was challenged by APC and failed, but in the Kano judgement, they wrongfully upheld the challenge of the qualification of the NNPP Candidate, Abba Yusuf, ignoring established judicial precedent.
I recently watched a videoclip of how a Judge of an American court who was seeking to be elevated to a higher court, was grilled about his judgements. If the list that circulated on social media of Supreme Court Justices to be appointed soon is authentic, and Moore Adumein JCA who is listed therein as the Priority Justice for the South South region has to face a Panel like the American one, he will definitely have a lot of explaining to do, especially as his brother Justice, Biobele Georgewill, JCA, who was shortlisted in the last selection process in 2020 was dropped for no apparent reason, presently topped the list of four South South Court of Appeal Justices, and has now been purportedly demoted to Reserve in this process! Adumein, JCA, would certainly have to explain why he gave a judgement that departs from the law as explained above, and how he signed a judgement riddled with contradictions that were written just a few lines above his signature, which he should therefore, have seen. Should he have been facing the American Panel, undoubtedly, this event would have made it a deal breaker!
The public already mocks our legal profession, and it is this type of bizarre judgement that brings our profession into further disrepute. We call upon whichever body that is responsible for the appointment of judicial officers, be it the FJSC or NJC, to adopt a more competitive and transparent system of appointing capable Judges. I still recall the former NBA President, Olumide Akpata’s statement, when he revealed that during his time on the NJC, Judges who were to be appointed to the Court of Appeal were unfamiliar with basic legal principles like ‘Lis Pendens’. It was decided that the Judges could learn on the job, as if a court as important as the Court of Appeal, is a branch of the Nigerian Law School or a Faculty of Law!
Up till the time of going to press, the leadership of the Judiciary, whether the President of the Court of Appeal, whose court is directly concerned with this matter, or the Chief Justice of Nigeria, who is the overall head of the Judiciary, have been more or less silent on this embarrassing matter. Has anybody been read the Riot Act? Has there been a call for an investigation into how a judgement that gave victory to both opposing sides, saw the light of day? Did we hear of this type of thing happening in the good old days? I think not.
It is time to address issues of inadequacy, incompetence etc in the Judiciary. Clearly, there is no better time than this to take appropriate steps, than when new Justices of the Apex Court are to be appointed. There is already a complaint that the Judiciary is being overly-populated with children, wives, siblings and cronies of retired and sitting judicial officers, and politicians. A situation in which the people lose confidence in the administration of justice sector, is dangerous, as it is the quickest road that leads to anarchy. A word, they say, is enough for the wise!