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Value of dissenting judgments in our jurisprudence

By Richard Akinnola

In an epoch-making British  case, Liversidge v. Anderson (1942) A. C.  206, that somehow delineated and streamlined the relationship between the State and the courts in terms of national emergency, Lord Atkin,  made his now oft-quoted profound opinion in a dissenting judgment.

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This was a situation that called for the interpretation of the Emergency powers in respect of the Defence (General) Regulations 1939, which somehow circumscribed the rights of citizens in times of national emergency.

Lord Atkins, who felt it was wrong to give uncontrolled power of detention of citizens to the Home Secretary, stated: “In England, amidst the clash of arms, the laws are not silent. They may be changed but they spell the same language in war and in peace. It has always been the pillar of freedom, one of the principles of liberty for which on recent authority, we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments in his liberty by the executive alert to see that any coercive action is justified in law.”

One of the advantages of dissenting judgments is that it opens such judgments to further scrutiny by scholars and judges, wherein such reasons and conclusions could be used in subsequent judgments.

Our 1999 Constitution, as amended, has envisaged, in fact, anticipated the fact that our appellate courts justices may give dissenting judgments.

Section 294(2) and (3) provides:  “Each Justice of the Supreme Court or the Court of Appeal shall express and deliver his opinion in writing  or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.

Provided that it shall not be necessary for all the Justices who heard a cause  or matter to be present when the judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority  of its members.”

It’s on the basis of this arrangement that the composition of appellate  panel of justices is usually in odd numbers -three,  five or seven.

This is with a view that there would not be a tie in terms of dissenting judgment.

Every appellate justice is bound to look at issues from his or her own perspective in their respective judgements. This has been part of our judicial system.

However, when it comes to political cases or public law matters,  members of the public usually read political meaning to such dissenting judgments, which should not be. Examples of such controversial dissenting judgments would suffice.

In the popular Awolowo v. Shagari presidential election petition case,  on what constituted 12 two-thirds of 19 states,  the Supreme Court in its wisdom, in deciding such political mathematics,  found in favour of Alhaji Shehu Shagari as being fully elected as Nigeria’s president in a majority of six to one.

In a dissenting judgment, Justice Kayode Eso disagreed with his brother justices and ruled in favour of Chief Obafemi Awolowo. Despite this bold dissension, Justice Eso was never accused of being politically partisan in his judgment, as we are wont to do today.

I recall during the election petition cases at the Supreme Court in 1983, there was a particular governorship election petition involving Jim Nwobodo and C. C. Onoh. I recall that in my then law column in Vanguard,  l titled it: Penalty kicks at the Supreme Court. It was a tension-soaked judgment that ended at 4-3 with Nwobodo emerging the winner.

In the Gani Fawehinmi v.  Col.Haliru Akilu and Lt-Col. A. K.  Togun,  on the issue of the right to private prosecutor,  the landmark decision was six to one in favour of Fawehinmi at the Supreme Court on the right to private prosecution. Justice Babasanya Craig dissented.

Another controversial case was the appeal of Mohammed Abacha against the State over his murder trials at the Lagos High Court. The Supreme Court, in a decision of six to one, freed Mohammed Abacha.

Apparently flustered by the majority decision of his brother justices, Justice Akintola Ejiwunmi,  in his lone dissenting judgment,  described the decision of his brother justices as “tyranny of the majority.”

The most recent of dissenting judgments at the apex court,  is that of former Chief Justice of Nigeria,  Walter Onnoghen,  over the suit filed by the Cross River State Government,  over the mode of his removal as CJN and his subsequent trial at the Code of Conduct Tribunal, CCT. Onnoghen is from Cross River State.

The appeal was dismissed by  majority judgment but there was a dissenting judgment by Justice Mary Odili, who declared Onnoghen’s removal by an ex-parte order of CCT as illegal and that the CCT lacked jurisdiction to try him in view of the subsisting Court of Appeal judgment in respect of Justice Nganjiwa.

In conclusion, it is expedient that l make reference to an interview Justice Oguntade, JSC (as he then was), granted to Vanguard, published on April 9, 2010:

Question: Looking at some of your judgments at the Bench of the Court of Appeal and the Supreme Court, some people see you 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?

Answer: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 ways 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.”

Question: 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 hold the same position on the matter in order to cover up some corrupt practices. How far is that true?

Answer: 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 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 candles?

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 other 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.”

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