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Dissenting Judgments: Today’s way of improving quality of future judgments – Justice Oguntade

Justice Oguntade

By Kayode Matthew &  Abdulwahab   Abdulah

Justice George Adesola Oguntade, justice of the Supreme Court is unarguably one of the best legal minds that ever sat on the bench in Nigeria. He had an illustrious judicial career spanning 30 years that took him to the apex court where he retired on March 10 2010 upon clocking the mandatory retirement age of 70. He was a judge of the High Court of Lagos State in the 1980s where his judgments were so sound and well researched and could not be faulted by the strictest scrutiny of the appellate court.From the High Court he was elevated to the Appeal Court and became the presiding justice of the court where he ensured that the huge backlog of appeals at the ever-busy court was cleared. When he was eventually elevated to the Supreme Court where he spent six years, he brought his progressive and incisive mind to bear in several appeals to the court including high profile ones.

He was more than convinced of his reasoning that he never shied away from delivering dissenting judgments in high profile cases the most recent of which was the appeal by the Presidential candidate of the All Nigerian People’s Party, General Muhammadu Buhari challenging the election of President Umaru Yar’Adua where Justice Oguntade in his dissenting judgments annulled the election and ordered a re-run. In this interview, Justice Oguntade shares his judicial experience as well as his views on some topical political issues.

Excerpts:

There was some sort of vacuum which was leading to a constitutional crisis after President Umaru Yar’ Adua was flown abroad for medical treatment without handing over authority to his vice. The National Assembly however rose to the occasion and adopted what was called ‘the doctrine of necessity’ to save the situation by empowering Vice President Goodluck Jonathan as the acting President. Some people have argued for and against this development.  What is your own position on this?

Nigeria found itself in an unfortunate situation. As a country, we needed to continue as one indivisible entity. It seems to me that when Nigeria is faced with a situation where they have to find the means to go on living as a country they always rose to the occasion.  The legal propriety or necessity to comment on the issue does not arise at all, because personally as a Nigerian, I am happy that we were able to device a means to go on living together as a nation. If I were to sit on the issue as a Judge or in a court, perhaps one will need to consider the jurisprudence governing the situation.

I am not in a court, so I am not looking at the issue as a court, but as a Nigerian. As a nation, we had difficulty somehow, and we devised a means to go on living as a country, this is because, we did not know what would have happened if the National Assembly did not do something. Looking at the issue from that angle, we should congratulate ourselves that we were able to bail out of the difficult situation. I have heard so many opinions from different people, condemning the doctrine of necessity, but the question we should ask ourselves is that what alternative do we have in those difficult circumstances. It is from that angle I looked at the matter.

Which jurisdiction outside Nigeria can you point to where this ‘doctrine of necessity’ has been applied?
Straight away, I may not be able to mention any one now, but the beauty of it is that as a nation, each time we approach the precipice, we are an ingenious country, and you can see it is by ingenuity that we were able to device that approach out of the precipice.  Certainly, we faced the difficult situation that time.

Chief Gani Fawehinmi, in his lifetime had consistently advocated for the entire Supreme Court Justices to sit as a court, instead of different panels of five or seven sitting at different times.  Looking at it from the background of conflicting judgments emanating from the Court of Appeal and the Supreme Court why can’t our Justices at the Supreme Court sit as a single panel?
I have always mentioned this to my colleagues at the Supreme Court, that it is better that the Supreme Court should sit as a single body. I do not look at it from the angle of conflicting judgments. I looked at it from the angle of preventing a situation, where just three justices can commit a court of 17 or 18 Justices. Because we sit presently in a panel of five and there is a dispute as to what conclusion to reach on an issue, three Justices out of five can commit the court to a position.

They are not just committing the court of five justices, but committing the whole of the court. So, from that angle, it is my view that the Supreme Court should sit with the whole panel of Justices. That will make the court speak as one body. As to its impact on conflicting judgments, yes, it will in a way assist in eliminating that, because if all of you sit as a panel, there is likelihood that somebody will remember cases decided previously, which would prevent reaching a decision differently. Another thing it does is that, it restores confidence as a whole in the judgment of the court. The feeling that a number of Justices have been compromised will not arise at all.

Is it possible for the Supreme Court as the apex court to reverse itself and in what situation can it reverse itself?
The apex court can depart from a previous decision of the court. But the way you do it, is that when you reached a conclusion in a judgment to a suit, it is not permissible for same parties in same suit to come before the Supreme Court and say, please reverse the decision you made in this particular case of ours. What to do is, when there is a subsequent case with similar facts, you seek by argument to persuade the court to depart from its earlier decision, because of a better reasoning or better approach. But what we have seen recently is that some litigants, had come before the court to say that the decision reached in a particular case, should be changed by one of the same parties. That will not be right.

There is this argument over the separation of the office of the Attorney-General and that of the Minister of Justice, what is your view on that?
Yes, it is a good one, let us have somebody as the Attorney-General and a separate person as the Minister of Justice. This is because very often the Attorney-General and Minister of Justice has to intervene in matters that have political undertone. If the two offices are not combined, his judgment on such matter will be better placed. So, I will suggest that the two offices be separated.

Looking at some of your judgments at the Bench of the Court of Appeal and the Supreme Court, some people see as a lone-ranger, especially as you had to dissent most times from the other justices on the panel. How do you react to this?
In most cases when I wrote dissenting judgments, I remained friendly with my colleagues. I reasoned in those cases where I came up with dissenting judgments that the conclusion should be different from what they turned out to be. After these judgments, we still managed to be friends. Dissenting judgments are today’s way of improving on the quality of judgments of the future.

What I tried to achieve, especially on election matters is to persuade the generations coming after us to look at the same matter differently. It is not a matter of someone knowing better than your colleagues, but I was being futuristic in my approach. Naturally I want to improve the society, I want us to be governed by what I call the higher quality of law and judgment. Therefore, on most occasions, I found myself not always able to agree to the reasoning of my colleagues in some of those cases, and when I don’t agree, I speak out.

There were insinuations in some quarters that some of the dissenting judgments were deliberate to demonstrate to the public that after all, all the justices on the panel do not have the same position on the matter in order to cover up some corrupt practices. How far is that true?

No, no. That is very wild and most unfounded approach. What they should do is to read these judgments and see the reasons canvassed by the majority and the minority. I cannot be singled out to be writing dissenting judgments. I have my approach to these cases. I believe that the court judgments can be used to reform the society. In election matters for instance, I believe and could see that most of our elections were poorly conducted, and I want to speak out through the judgments so that things could be done better in the future.

When I spoke out in the Yar’Adua vs Buhari’s case, some of my colleagues joined me. So, it is not a question of somebody singled out to write dissenting judgment. That was most unfair. I know that was the feeling of some people outside. A friend of mine once mentioned that. How can one do that by burning many midnight candle? Before I could write my judgments in Yar’ Adua and Buhari, Atiku’s case, it took me more than one month writing and comparing many laws  in this country, looking at the Africa, the Commonwealth and several others’ laws. I would not be doing that if all I want to do was to write a dissenting judgment. Of what benefit will that be, especially for a man like me approaching retirement.  I have my name to protect for history, because these judgments will live after us.

The judgments we write show the state of our laws. If you go to America, Britain etc, you find dissenting judgments. So to say the one in Nigeria is camouflage is very unfair.

Some of the Justices of the Court of Appeal have been lampooned over some of their decisions, especially that of Professor Charles  Soludo, where the appellate court gave an order restraining him from parading himself as the candidate of his party when the issue before the court was on jurisdiction, until it was reversed by the Supreme Court. If that case were to end in the Court of Appeal, don’t you think there would have been a miscarriage of justice?
Obviously, the answer to the question is yes. There were cases properly determined by the high court, the Appeal Court and the Supreme Court. There were also some cases that get wrongly determined by the high court and the Court of Appeal.

That is why we have the appellate system, so that the errors in judgments of the lower courts could be corrected by the Supreme Court. That is why you have the same system in most countries of the world. If you don’t take the advantage provided by the constitution to appeal when you think such judgment are wrong, that means you will suffer injustice forever. That is not injustice from the system, but your satisfaction about the judgment of the lower court.

So the matter ends there. What we can say with our own reasoning about those who don’t have money to appeal further, is that they will surfer permanent injustice. Well, that is very unfortunate and the truth is that the poor man in every society always suffer, so pray to be a rich man.

Oguntade

Can you recall some of the remarkable cases you handled both at the Court of Appeal and at the Supreme Court?
Well, I can easily remember a case from Benue state, where a high court judge challenged his wrongful removal from office.  The high court decided against him, he appealed the judgment.

The case is Anyebe against Benue state. The case came to us at the Appeal Court; I think I was presiding at the Jos division then. We ruled that he was a brilliant Judge, hardworking but fastidious. He was very difficult to please. He never got on well with people around him. I made a remark that he was right in the way he approached the matter which led to his removal, but that he did not exercise good discretion. You know, if I am accosted wrongly on the way by someone and he gave me a blow, as an elderly man and matured person, I will endeavour to report the matter to the police. If he would run away before the police come, I will use reasonable force to hold him until police come. I will not take it upon myself to retaliate. So, the point I am making is that even if you are wronged by somebody, you have to react reasonably to the extent that it will not affect your composition. We reinstated him to his position, though he died shortly after he was reinstated back to office.

Also, the case of Abacha’s son readily comes to mind.  I always remember the case because of the point of law raised. The defence counsel raised the point that the proof of evidence against him did not show that he was involved in the act of killing Abiola’s wife, Kudirat. At the time the objection was raised, evidence has not been led in court, the lawyer was only looking at the proof and we reasoned that look, he (Abacha’s son) should be charged and if it can be proved that there is no prima facie case against him, he could then raise a no case submission, not that somebody charged with murder be discharged based on proof of evidence. So, we said, he should be tried, although he appealed to the Supreme Court which eventually upturned it.  Although, we were not happy, but we had to accept the judgment of the Supreme Court.

Also, there was a case of immunity brought against former Governor Tinubu of Lagos state. Late Fawehinmi had sought for Tinubu’s prosecution over some criminal matters. I wrote the judgment. In my judgment, I said the police could investigate a sitting governor and gather all evidence they wanted but could not prosecute in line with the dictates of the constitution. I think that was the first case on immunity filed in court. There were so many cases, thousands of them that were decided by me.

In the case of Muhammed Abacha, which you cited earlier, on what ground did the Supreme Court set him (Abacha) free?
In the hierarchy of the courts, when the Supreme Court gives a judgment, you just accept it. You cannot query it. They were the final court then. Like what one of the learned Judges said, the Supreme Court Justices were the final, not because they were the wisest, but because the constitution invested that in them.

When you now got to the Supreme Court and had the opportunity of sitting with the justices that decided Mohammed Abacha’s case did you find out what informed their judgment and if similar case come before you how would you have handled it?
If the same case of similar facts came before us while I was at the Supreme Court, I would have the opportunity of reversing such judgment. I could not make any unfavourable inference to the personnel that decided the Abacha case at the Supreme Court. I just saw that they approached the matter differently. They have their own way of reasoning. We the Justices have our own way of respecting the views of each other. So, what ever informed their decision which they took at that time, I would not know but I know they reasoned differently.

How were you able to marry your career as a judge moving from one place to the other with your domestic and family affairs?
It was a very difficult situation, especially at the Court of Appeal. We called the place a Bachelor’s court because you got moved from one place to the other regularly. I doff my cap for the Justices of the Court of Appeal. No matter how much you try to manage your domestic affairs, it will definitely suffer in a way. So many things will go wrong because of your shifting from one place to the other. Your children’s education will suffer, your tenant where you have property who wishes to pay rent will hold it because he knows that you will not come around on time to collect it. It was very difficult, but we were able to overcome it. I just pray for those who are still there facing the situation.

Will you encourage any of your offspring to be a judge?
I have a son who will be invested as a senior advocate in few days to come, I asked him, if he would like to be at the Bench as a judge, he told me bluntly, Daddy, I don’t want to be a judge. May be he has seen the difficulty I went through as a Judge, so he wouldn’t want to go through the same.

Some years ago some Justices of the Court of Appeal were sent packing because of corruption over political issues they handled. How do we ensure corruption free judiciary?
I don’t know why you are talking about corruption free judiciary, we should first talk of corruption free society. Judges are members of the same Nigerian society. They started as lawyers and rose to the bench. If the society is highly corrupt, there is no way you will have judicial personnel who will not be corrupt or tainted.

So, what we should do is to remove corruption from our society and that is a matter for all Nigerians and not for Judges alone. It is painful when you say Judges are corrupt. What about the police, what about the teachers, even the priests in the churches are corrupt. It is a sad thing, but with time we shall get out of it. Corruption permeates all sections of our society, it is sad, we must all fight the battle together.

The judicial practice of oath taking has become a controversial issue, where litigants or witness swear by either a copy of the Quran or the Bible in order to make them tell the truth but they end up telling lies to the court. Is it still relevant to make a party swear to an oath in court?
Swearing to an oath to speak the truth is to challenge your religious faith. That is to say, believing you are a true Muslim or a Christian, the expectation is that you will come to the court to say nothing but the truth. But we have found out that many people who purported to be Muslim or Christian rarely live up to the expectations of the religion they professed. There must be a way to persuade the people to speak the truth. People who took oath to tell the truth and at the end tell lies show the weakness in their religious principles.  For now, there is no alternative, you will still have to make people to swear to an oath.

When the court realizes along the line that a witness tells lies, what happened?
The court punishes such person for perjury. They are brought back, reminded them of their oath and are confronted with the truth. If the court finds them guilty, they are sent to jail for perjury.

It is a criminal offence, serious too. I was a Registrar of court for many years, I have seen people sent to jail for perjury. Today, probably because of the fact that there were many cases, the people in the ministry of justice rarely charge those culpable to court for that. The law is there.


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