Personal Reflections by Festus Keyamo, SAN, FCIArb (UK)
My respect for Professor Ben Nwabueze is immense. His age and achievements in the Nigerian legal field and other walks of life set him out as a distinguished citizen of this country.
In addition, one of the generally accepted precepts of the African society is deep respect for elders. This precept, in some traditions, is over stretched to the extent of not replying or correcting an elderly person, even if the elderly person is patently in error.
This is why I nearly succumbed to the urge to ignore Professor Ben Nwabueze’s position on the Supreme Court decision in Atiku vs INEC as expressed in his press release made on 31st October, 2019.
However, on deeper reflection, I came to the conclusion that when the issue involved is not personal, but one of national interest, it behooves any concerned and informed Nigerian to set the record straight for the sake of posterity.
This is more so because Prof. Nwabueze did not speak from the position of an elder Statesman. His affection and support for the PDP and its Presidential candidate was clearly in display before and after the election.
His passionate, tearful embrace of Atiku Abubakar and his famous declaration that he would not die until Atiku Abubakar becomes President in 2019 was one of the high points of the last election. His wheel-chair appearance at the Court of Appeal in support of Atiku was also iconic.
It was perfectly within his legitimate rights to take this position. After all, other eminent citizens of such age and stature also supported President Muhammadu Buhari and the APC.
Unfortunately, in the said press statement last week, Prof. Nwabueze took his political conviction too far by seeking to destroy the reputation and integrity of the Supreme Court on the altar of politics. He let his emotions override his sense of decorum and professional etiquette – SOMETHING TOTALLY UNEXPECTED of such revered figure in the legal profession.
In the said press statement, Prof. Nwabueze, delved into the practice and procedure of the apex court in hearing and determining time- bound appeals and the propriety or otherwise of same when viewed in the light of the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
Prof. Nwabueze’s submissions contain deliberate misinformation (given his pedigree) which become magnified when viewed vis-à-vis the provisions of the law, the settled decisions of courts and the precedents already long established by the Apex court.
The crux of Professor Nwabueze’s press statement relates to the statement credited to the Hon. Chief Justice of Nigeria, Tanko Mohammad who presided over the seven-man Supreme Court panel that considered the appeal, as follows:
“We have examined all the briefs of argument and the exhibits for over two weeks and we have all agreed that there is no merit in this appeal. The appeal is hereby dismissed. Reasons to be giveny on a date to be announced.”
From the above quotation, the revered Prof. Nwabueze came to the following conclusions:
(a) That the decision dismissing the appeal as lacking in merit was not taken at the sitting of the Supreme Court on 30 October, 2019; that the decision had been taken during an examination of all the briefs of argument and exhibits for over two weeks before the sitting on 30th October, 2019.
(b) That the Supreme Court cannot function as regards the hearing of the appeal BEFORE the seven man panel that heard the appeal was constituted and the names of the members made public. He wondered when exactly the appointment of the Panel was made.
(c) That the right to fair hearing of the Appellants as guaranteed by the provisions of section 36(1) of the Constitution was violated as a result of the above.
Interestingly, this is not the first time the Supreme Court will determine an appeal summarily and give reasons later. As a matter of law, the power of the Supreme Court to do this is constitutional. Section 285 of the Constitution allows this procedure and it was given judicial sanction in the case of Ikenya Vs. P.D.P. (2012) 12 NWLR (PT. 1315) P.493 where the Court held inter alia that the provision of section 285(8) of the Constitution can only be exercised by the Supreme Court. In OKOROCHA VS. P.D.P. &ORS. (2014) LPELR-22058 (SC) Ogunbiyi JSC cited with approval the case of Ikenya Vs. P.D.P. (Supra) and held as follows:
“In the case of Ikenya V. P.D.P. (2012) 12 NWLR (PT.1315)493 it was held that the provision of section 285(8) of the Constitution can only be exercised by this court, wherein judgment can be pronounced and the reason would be reserved to a later date. The section is not however open to the Court of Appeal”.
Another important point to note is that the hearing preceding the judgment in issue was conducted in the open court. The essence of settling briefs before the appellate court is to allow the court study same and give its decision with dispatch. Studying the briefs before the date set for hearing is not a departure from Section 36 of the Constitution, but rather complements same. Section 36 (1) of the 1999 Constitution (as amended), provides thus:
“A person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
It is conceded that the constitution did not define the term “fair hearing”. However the court has held that the hearing envisaged under Section 36 (1) of the 1999 Constitution (as Amended) is a hearing which is conducted in line with practice, procedure and the rules formulated by statute and the Rules of court in order to ensure justice. See the following cases; Bamaiyi v. State (2001) 8NWLR (PT. 715) 270 at 284, Uguru Vs. State (2002) 2 NWLR (PT.771) 90 at 105 and Audu Vs. FRN (2013) 5 NWLR (PT. 1347) 360.
In Inakoju v. Adeleke (2007) 4 NWLR (PT. 1025) at pg. 704 the court heard inter alia:
“Where the issue of denial of fair hearing is raised, the relevant question is always whether a party entitled to be heard has been given the opportunity of being heard”
The relevant question as raised in the press statement of Prof. Nwabueze is whether the parties in the matter were given opportunity to be heard. The answer is in the affirmative as demonstrated above.
Furthermore, Prof. Nwabueze’s assertion that the Supreme Court went on a recess on the 30th of October, 2019 during the hearing of the Presidential Election Petition appeal whereupon they reconstituted the panel is, simply put, not correct. The purpose of that recess was, as widely reported, to enable the counsel to the Appellant decide on consolidating the seven interlocutory appeals with the main appeal pursuant to an application by the Appellants’ lead counsel who asked the court to allow all counsel to adopt their briefs, both in the main appeal and in seven other interlocutory appeals.
Finally and in reply to the learned Professor’s rhetorical inquiry as to the makeup of the panel in question and the timeline of the appointment of its members, it is important to note that the Supreme Court is under no legal obligation, neither has it been the practice, to publish or furnish the names of members of the panel to hear an appeal to the parties before the hearing of the appeal.
The practice of keeping the identity of members of such an important panel anonymous has ostensibly been put in place to encourage neutrality and also to discourage contesting parties or members of the public from attempting to reach or compromise the Honourable Justices. What is more, each Justice of the Supreme Court is entitled to a case file and copies of all the Briefs filed by the parties in any matter, a practice which is defined by the filing of sufficient copies of processes at the registry of the Court to ensure that all the Justices of the Supreme Court are afforded copies of the processes filed in all matters upon the filing of same.
Therefore, the logical inference from the foregoing is that each and every Justice of the Supreme Court is sufficiently equipped to serve in any panel as constituted by the Chief Justice of the Federation. And it is not out of place for the Justices to hold conferences over matters in Chambers, having read the Briefs, and express their opinions on such matters, even before the sitting in open court.
Therefore, there cannot be any question mark about what happened at the Supreme Court on 30th October, 2019. When the CJN had earlier announced, days before, that no Panel had been constituted to hear the Appeal, it could not have meant that all the Justices were not with the case files and were not studying same.
The seven-man Panel that eventually heard the Appeal could have been constituted that morning and could have met even one hour before the sitting in open court to express their opinion on what they have read in the Briefs two weeks before then.
In conclusion, rather than crucifying my lords at the apex court for hearing the appeal on the 30th of October, 2019 and deciding same on the same date, my lords ought to be commended for coming to court prepared and hearing and dismissing the Appeal with dispatch.