By Mohammed Adamu
Unequal equities

OF the many doctrines or rules that I am intrigued by in the ‘English law’, the ‘maxims of equity’ have a place uniquely their own. If you must know ‘maxims of equity’ are ‘short pithy statements’ used to denote the general principles of ‘equity’. Like the maxim: ‘he who seeks equity must do equity’ –which may have been founded from the religious moral which instructs the doing ‘unto others what one would wish done unto oneself’.

By the way the ‘doctrines of equity’ (within which the ‘maxims of equity’ are contained), themselves are a system of the ‘English law’ developed centuries ago by the Court of Chancery in England, primarily to mitigate the severity of what the French would call the ‘comune ley’ or ‘Common law’ itself. And such severities of the English ‘common law’ as you should know, in the early days of that system of law, were especially legion, to say the least.

Whenever the rules of ‘common law’ appeared unduly harsh or rigid, predisposing the ‘common law courts’ not to do proper ‘justice’ –which is the raison d’être for the existence of law- the equitable Court of Chancery, like the proverbial ‘avenging angel’, was empowered to revisit settled matters, with the gyroscope of ‘conscience’ and not with the giddy ‘scales’ of ‘law’, to reproof ‘injustice’ and to exhort the ‘common law’ judges into righteous adjudication.

Thus ‘equity’ was –and still is- like the equally ‘short pithy’ biblical apothegm too that says something to the effect: ‘all scriptures are given for ‘doctrine’ (as law), for ‘correction’ (in morals), for ‘reproof’ (as measure of truth) and for ‘instruction’ into righteousness (or good conduct)’.

Righteous  conduct
So that the words of any scriptures –no matter of what creed- would have been written in vain if the essence is not so that they become a ‘code’ of ‘moral truth’ that guide adherents to righteous conduct.

And as with the scriptures of religious dogmas, so it is with ‘the laws’ made by man; -so that all laws amount practically to ‘nothing’ if they do not conduce in the end to the achievement of ‘justice’ in the society. For then ‘law’ becomes merely ‘for law’s sake’ as the ‘aesthetic arts’ are lampooned often for being merely ‘art for art’s sake’.

It has taken several pieces of ‘short pithy statements’ called the ‘maxims of equity’ to teach the English ‘common law’ itself the need, sometimes, to let ‘conscience’- and not ‘logic’- season the instruments of ‘justice’. And it is the reason that one of the many ‘maxims of equity’, includes this one which proudly says ‘equity acts on the conscience’.

By the way the maxim which says: ‘delay defeats equity’, seems to suggest that any ‘law’ does not necessarily work ‘justice’ merely because it insists that ‘justice must be done and must be seen to been done’. Truth is ‘Justice’ must not only ‘be done’, or ‘seen to be done’, it must ‘timeously’ -if not ‘expeditiously’- be done. Because ‘justice delayed’ as a maxim of law posits, is ‘justice denied’.

Saraki and the gang: One popular ‘maxim of equity’ that resonates well with the ‘lay public’ is that which says ‘he who comes to equity must come with clean hands’.

It is a little less pithy version of that which says ‘he who seeks equity must do equity’. But there are several other such maxims of equity away from the knowledge of the ‘lay public’ which are as morally conscientious –if not more so- as ‘coming to equity’ only when ‘your hands are clean’ or ‘doing equity’ because you too ‘seek equity’.

One of such is: ‘equity will not suffer a wrong to be without remedy’. Meaning that ‘equity’ abhors denying any who has a claim backed by ‘law’ the right to sue on that claim. And this resonates perfectly well with the allegation of ‘forgery’ said to have been committed by the Senate President Saraki and three others side by side with the right of the State to sue upon that. If ‘equity will not suffer a wrong to be without remedy’, ‘victims’ of infraction of the law are therefore assured a right of recourse to the courts for remedy.

In fact, in spite of its famed antecedent severity, even the ‘common law’ has not been known to be averse to recognising the basic fundamental requirement of ‘justice’ which is encased in the maxim: ‘ubi jus ibi remedium’ -or ‘where there is a right, there is a remedy’.

Whenever the existence of a ‘right’ in law is proved, it obviates the need to prove entitlement to ‘remedy’ -in the event that that right is infringed. The only circumstance in which a presumed ‘right’ can go without a ‘remedy’ is where such ‘right’ appears ‘uncertain’ –in law. Thus, the saying: ‘ubi jus incertum, ibi jus nullum’ –or ‘where the right is uncertain, there is no right’.

But not  so in the forgery case concerning Saraki and three others. The ‘right’ of the State accruing in the prerogative powers constitutionally invested in the Attorney General of the Federation, AGF to sue in this case, is as ‘certain’ as ‘certainty’ itself can get. All relevant police investigations at the highest level of administration revealed that a prima facie case exists which imposed a duty –even if discretionarily- on the AGF to prosecute.

In criminal, unlike in civil, law ‘vengeance’ is for the State which, as far as prosecutorial rights are concerned, it is deemed the veritable ‘victim’ of crime and not the ‘actual victim’ himself who suffered the consequences of a criminal act. The ‘State’ and not the ‘plaintiff’ alone reserves the right to -or not to- seek remedy in court. The victim of the crime allegedly committed by Saraki and others is the ‘State’, ably personified in the AGF.

Right to  prosecute
And going also by the maxim ‘equitas sequitor legem’, or ‘equity follows the law’, the one in whom the right resides to seek remedy for a wrong cannot, in equity, be denied that right.

In the instant case of Saraki and others therefore, to derogate –under any guise- the right of the State to prosecute the alleged offenders, is to suggest that equity, contrary what it claims, CAN ‘suffer a wrong to be without remedy’ -or to suggest that even where there is a right ‘certain’ in ‘law’, there should NOT be remedy.

The Attorney General of the Federation being the Chief law Officer of the land, personifies the ‘State’ in this case and is thus its ‘avenging angel’. And although he is not obligated by law to have to seek redress in every wrong done to the state, he is imbued with the right of a person wronged at civil law, to choose to sue to get the State recompensed or to forgo the right to prosecute even the most grievous offence done to the commonwealth.

It is within the constitutional powers and or right of the AGF, in the interest of justice and of the due process of law, to exercise that prerogative of choice to take over and continue or to take over and discontinue prosecution of any criminal case instituted by any prosecuting agency empowered by law to do so. In fact, it is within the constitutional powers of the AGF to decide to prosecute ‘one’ or ‘all’ or ‘some’ or ‘none’ of members of a confederacy of persons accused of a crime.

Postscript: To suggest therefore that instituting criminal proceedings against the Senate leadership bears the imprimatur of the Executive arm trying to undermine the principles of separation of powers; or that it constitutes a coup of one arm against another, is most uncharitable, odiously non sequitur, preposterous and vexatious -to say the least. It goes beyond merely ‘crying wolf’, it tantamounts to the ‘hauling of Irish wolves against the appearance of the moon’.

By the way, the theoretical notion of the ‘independence’ of the arms of government is practically a misnomer; because what exists in practice among and between the arms of government is functional ‘interdependence’.

In fact,even the idea of non-interference in the affairs of one arm by another is a farce; because each arm in one way or another is constitutionally obligated to interfere in the affairs of the other. The management of crimes cannot be the internal affairs of the legislature. It is the preserve of the executive; as its determination is that of the judiciary.

Legislators cannot hide under the guise of lawmaking to get away with high crimes and misdemeanors. Because again “equity will not permit a statute to be a cloak of fraud”. The power to ‘legislate’ cannot derogate the power to ‘execute’; nor should the power to ‘adjudicate’ be derogated by either powers, or that itself should attempt to derogate the others.

“Where there are equal equities”, as another maxim of equity would say, “the law prevails”. Let it, let it –Saraki.

 

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