By Awa Kalu
It is not unusual when a multi-bench Court sits, for one or two of the Judges (depending on the number sitting) to dissent on a point in issue. By analogy, the Nigerian people have had to watch Chief Gani Fawehinmi, SANâ€™s performance in the glare of the public for several decades.
When he died late in August, all the commentators have unanimously returned the same verdict indicating that the man popularly known as â€˜Ganiâ€™ in his lifetime lived well – in the sense that he served the cause of the common man, the downtrodden, the oppressed, the voiceless and all of those who had neither the capacity nor the resources to ventilate their grievances either publicly or before a Court of law.
Thus, all those who paid tribute to late Chief Gani Fawehinmi (they were so numerous) acknowledged not only his legal prowess but his success in using the law as a tool for social engineering. His manner of advocacy including the theatre that often accompanied it, the Press coverage that also inevitably followed made him particularly a difficult act to follow. Perhaps, this is the vindication that late Dr. T.O. Elias needed for the vision he had for the role of law in developing society. The late jurist had occasion to lament that â€œnever before in the history of human thought has law had to face a more challenging situation than that in contemporary Nigeria.
The prevailing social and economic forces call for a type of lawyer who is at once a social engineer and an analyst, a pericles and a plumber, capable of appreciating the values of existing institutions and mores and yet ever ready to make a dynamic contribution to the maintenance of a proper balance between the claims of the State and those of the individual. Law and society should engage in a continuous dialogue both as to the choice of means, and as to the end in viewâ€.
The late jurist also thought that â€œif Nigerian law can fulfil the role of stimulating economic growth and social well being, elevate the moral tone of the community, foster a spirit of unity among the diverse ethnic groups and become a common law for the country under which no man is oppressed, it will have made an important contribution in the world of ideas for the cause of human bettermentâ€.
Dr. T.O. Elias made his wish known more than two decades ago. Without equivocation, Dr. Elias prescribed a role not only for the law but the Nigerian lawyer as well. There is no doubt that several Nigerian lawyers have honourably and diligently acquitted themselves in the use of law for the vindication of their clientâ€™s causes. However, it is doubtful whether any would contest the popular verdict which gave Gani pole position as the foremost activist of his time.
In the very informed view of students of the Obafemi Awolowo University this radical and activist approach was sufficient to elevate Gani as the â€œSenior Advocate of the Masses (SAM)â€. A little attention to the context of that award was a repudiation by the students of the failure of the Legal Practitioners Privileges Committee to reward Ganiâ€™s doggedness in the practical application of the law for the benefit of the common man. It was therefore a fitting reward to the untiring effort of that man of immense intellectual astuteness that he was eventually recognised by his own profession in 2001 when he was conferred with the rank of Senior Advocate of Nigeria (SAN).
Perhaps, Ganiâ€™s death may be said to have uncannily coincided with relentless calls for the abolition of the coveted rank of Senior Advocate of Nigeria. Although this is not a proper occasion to review the merits or demerits of the abolitionist crusade, Ganiâ€™s death may be the catalyst which ought to ignite the reform of the procedure for the recog
nition of Nigerian lawyers whose contributions to legal development are undoubted and thus, merit the award.
The guiding principle entitling a person to the recognition embedded in the title â€˜Senior Advocate of Nigeriaâ€™ ought to be nothing other than a crystal clear evaluation of that personâ€™s contributions to the growth and development of Nigerian law.
There is no doubt that there are persons presently deserving recognition who have not been so recognised. The Privileges Committee ought to urgently and immediately, identify such persons and elevate them.
We ought not to wait for another section of society to identify any such persons for the profession. Arising from this, is possibly, the need to look into a few of the cases initiated by Gani in order to determine why he was the only lawyer elevated to the rank of Senior Advocate of the Masses and of Nigeria in his lifetime.
Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300 is a case involving the late lawyer in person. The case touched upon the context of the constitutional rights of a person to fair hearing in the determination of his civil rights and obligations.
In the instant case, the rights and obligations in question arose from disciplinary proceedings initiated against the late Chief Gani Fawehinmi as a Legal Practitioner by the Attorney-General of the Federation who acted as the accuser and would be Judge.
Significantly, many lawyers had previously been through the disciplinary procedure without spotting the anomaly inherent in a process which required the Attorney-General to â€˜chargeâ€™ the Legal Practitioner and at the same time to constitute the Disciplinary Committee of which he was at the material time, the Chairman.
In the consideration of the material questions which called for determination in that case, the appreciation of the epochal dimensions of the case arise for the fact that the Supreme Court referred to and considered altogether eighteen local cases and seventy decisions of foreign Courts. In addition, the Court had recourse to local and foreign statutes including books by established authors.
In sum, Hon. Justice C.A. Oputa (JSC) as he then was, encapsulated the substances of the judgment in his illuminating dictum: â€œThe debate over what constitutes a judicial tribunal, quasi judicial tribunal, a domestic tribunal, a tribunal simpliciter, arbitrament, arbitral proceedings, forum competens, etc., will certainly go on as an academic exercise; but once a body of persons by whatever name called are invested with authority to hear and determine particular issues or disputes either by consent of the disputants or by an order of court, or by the provision of a Statute, such a body will be required to carry out its function with that fairness and impartiality which the rules of natural justice dictate.
Therefore, the Legal Practitioners Disciplinary Committee which exercises, under the Legal Practitioners Act of 1975, the important function of considering and determining cases of misconduct alleged against legal practitioners should in every step they take in this important sphere of human activity be guided by the immortal principles of eternal or natural justice. That seems to be elementary enough.â€ The Supreme Court deprecated the conduct of the Attorney-General who, as it found, was the accuser, the prosecutor and the Judge at the same time.
In the words of Aniagolu JSC (as he then was): â€œOne would have thought that an Attorney-General who by his training as a lawyer, and his position as Attorney-General, would have been endowed with a sharper instinct of the notions of natural justice than most others, would have accorded a colleague whose conduct was being pilloried, that elementary justice of hearing out his explanation, before proceeding to prefer charges and conduct his trial.
The rule: audi alteram partem, runs as a principle inviolate through the blood of every lawyer.â€ That case no doubt, led to reforms in the disciplinary procedure prescribed for the trial of errant lawyers and so many have benefitted from Ganiâ€™s resistance to a manifestly unjust law.
Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 is another case which dealt with the principle that in administrative law, a real likelihood of bias is a ground for inferring impartiality in a Court or Judicial tribunal. The Supreme Court, guided by the forensic ability of late Gani held that offences against the laws of the land fall outside the jurisdiction of the visitor and the Vice-Chancellor.
If a student in a University is charged for the commission of a crime the student can only be proved guilty before a Court or Tribunal. Obaseki JSC put the principle beyond the realms of conjecture when he noted that â€œ…students in all our Universities and Institutions of higher learning are not above the law of the land and where obvious cases of breaches of our criminal and penal laws have taken place, the authorities of the University are not empowered to treat the matter as an internal affair.
His Lordship further noted that without subjecting any criminal allegation against any student to the machinery provided by the State for ascertaining the truth of the allegation a very painful denial of fundamental right is inflicted on the student howbeit laudable or sympathetic the intention of the authorities might be. Mistakes do occur. An innocent student might in such circumstances suffer undeserved punishment.
A guilty student might prefer the less austere climate of the Vice-Chancellor Investigating Panelâ€™s room and pronouncement of the Disciplinary Board or Vice-chancellor but the pronouncement of guilt from the current of unsifted, untested and undistilled mass of evidence which did not pass through well informed professional minds will do more harm than good to the integrity of the studentâ€.
Obaseki JSC further noted that a University student is a priceless asset and as he is on the threshold of a world of useful service to the nation, we cannot afford to destroy him by stigmatising him with guilt of offences unless proved guilty before a Court.
It is instructive to note that both cases considered above have till date not been overruled even though Garba above has been criticised in certain quarters as impairing the capacity of Universities to discipline its students. Again, in the aftermath of Garba, Femi Falana Esq., a consummate human rights activist in his own right, has revealed that one of the students who benefitted from that case treated Gani as a qualified medical Doctor during his incarceration in Gashua prisons. In that instance, Gani benefitted from his benevolence in circumstances that he could not reasonably have foreseen. This on its own, is an abiding lesson that you reap only what you sow.