By Awa Kalu, SAN
When on December 5, 1986 Justice C.A Oputa joined his learned brethren of the Supreme Court – Bello, Aniagolu, Coker, Karibi-Whyte, Kawu and Belgore, JJ. SC., – to deliver judgment in the celebrated case, Aliu Bello & 13 others V. Attorney General, Oyo State (1986) 2 NSCC 1257 – it became clear within our local as well as the international legal community that the administration of justice would shed its toga of technicalities and assume a more progressive and liberal tone.
The case arose from the un-contradicted fact that the appellant were the dependents of a person convicted of a capital offence – armed robbery. The convict appealed against his conviction and sentence and the notice of appeal was served on the Attorney General of Oyo State.
Unfortunately, while his appeal was pending, the Governor of Oyo State acting upon the advice of the Attorney General authorized the execution of the convict. His execution was challenged by the dependents as being unlawful in that it was a violation of his right to life as guaranteed by the constitution.
His right of appeal against his conviction and sentence being guaranteed by the constitution, it was confirmed, could not be taken away by his wrongful execution. The action was opposed on several grounds including grounds which were seen as impediments to the merit and justice of the case.
In the lead judgment, Bello JSC, who later became the Chief Justice of Nigeria, borrowed a leaf from the dictum of Eso JSC in The State V. Gwonto & 4 Others (1983) 1 S.C.N.L.R 142 at 160 wherein he stated that “the court has for some time now laid down as a guiding principle that it is more interested in substance, than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.” Justice Oputa’s contribution in his concurring judgment still resonates with authority.
He noted that “it does not matter how inelegant the pleading of the appellant was, it paucity notwithstanding, this case will stand or fall on the admitted fact, and on the primary obligation of our court to do substantial justice.” In words that will surely outlive him, Oputa JSC., emphasized that “the picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers.
But the spirit of justice does not reside in forms and formalities, nor in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and all its technical rules ought to be but a handmade of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice, the court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it”.
The Law Report are littered with Late Justice C.A Oputa’s illuminating dicta. In the equally celebrated case of Federal Civil Service Commission & ors V. J. O. Laoye (1989) 4 SCNJ (Pt. 11) 146 at 179, he noted that “… justice has never being a one-way traffic. It has two scales and weight. Justice is also depicted as blind. It neither sees nor recognizes who is a government functionary and who is not.
It is not a respecter of persons or institutions, no matter how highly placed these are.” He further stated that “one aspect of our much vaunted equality before the law is that all litigants, be they private persons or government functionaries, approach the seat of justice openly and without any inhibitions or handicap. Each wins solely and wholly by, and because of, the strength of his case in its weight on the scale of justice.
It is the duty of the court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power.” Alluding to the court as being the vanguard for the protection of all and sundry, Justice Oputa observed that “when the court is described as the last hope of the common man that implies that it is the duty of the judiciary (a duty which its owes to the course of justice) to ensure that any encroachment on the rights of the individual, any coercive action is justified by law.
In the unequal combat between those who possess power and those on whom such powers bears, the court’s primary duty is protection from the abuse of power.” In Jonah Eze V. Federal Republic of Nigeria (1987) 1 NSCC 249 at 260, a case concerning the extent of the Jurisdiction of the Federal High Court, Justice Oputa, even in his introduction of his concurring judgment demonstrated his well-known distaste for delay in the administration of justice.
He said: “For six long years this case has been bouncing forward and backward like a tennis ball, from the Federal High Court to the Court of Appeal, then back to the Federal High Court, then back to the Court of Appeal, and as if intent on completing the circuit, It has now reached the Supreme Court, the country’s last and final Court. For all these six years the issue has been the same.
For six long years the Courts of the country have been trying to find out which of the two Courts – the State High Court or the Federal High Court – has requisite jurisdiction to entertain the four count charge preferred against the Appellant. The result of all these six years of waiting may have at least some marginal advantage to the jurisprudence of this country but one wonders if that advantage can really justify the expenditure of money, in time and effort, in anxiety and worry by all concerned especially the Appellant.”
It may also be said that in some cases, he took time to offer words of advice to counsel. Thus, in Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1. His Lordship, on the fact, chided the learned appellant for appearing for himself in these words: “in this case the Appellant, a very eminent counsel, undertook to conduct his case himself. He who descends into the arena of conflict cannot avoid the dust of the encounter. With the best will in the world he will not have that detachment expected of an advocate who merely argues the case as distinct from vouching the case.”