By Dele Sobowale

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‘Bayelsa: S’Court refuses to sack Diri, awards N60m cost’ – PUNCH, February 27, 2020, p 1.

NOTE: This article was written and to be sent to the Editor in the first week of March. The day after, I was battling cancer. I forgot about it. Six weeks after shedding some weight and spending millions of naira which I could ill afford but hopeful about the future, I want to register my view on that issue.

God bless everyone of the Justices of the Supreme Court of Nigeria, SCN, on the panel who, on February 26, 2020, had the moral and professional courage to uphold the will of the people. It was a victory for decency, for patriotism and respect the rule of law – especially given the stature of the appellants’ lawyers. There are no two bigger and more expensive legal counsel than Chief Afe Babalola, SAN, and Chief Wole Olanipekun, SAN, in Nigeria today. Certainly, they were chosen by Mr Lyon and the All Progressives Congress, APC, because of their huge stature.

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The scenario reminds me of the late Chief FRA Williams, SAN, in times past. His gargantuan bulk and his equally gigantic reputation made ‘Timi the Law’ an intimidating personality in court. For this, even people with weak cases but a lot of cash sought his services. The only lawyer Williams did not always want to face in court was Gani Fawehinmi, SAN, who, though much younger, was the ‘peoples’ lawyer’. Gani‘s ‘Jankara’ methods were the perfect antidote to Timi. While representing the relatively poor against Timi’s affluent clients, Gani gave his opponents a good run for their money.

“Money [and power too] makes everything legitimate – including bastards” – Jewish proverb, VANGUARD BOOK OF QUOTATIONS, VBQ, p 163.

It is doubtful if a poor litigant, after putting together funds to take a case all the way to the SCN, would have money or the courage to re-approach the court for a review after an unfavourable verdict. It requires the combination of great wealth and power for individuals and groups to contemplate such an adventure. In this case, rich men and the ruling political party were involved. It was claimed in some quarters that the All Progressives Congress, APC, was ready with statement for reporters in high expectation of a positive outcome. The party reckoned without the hitherto unknown courage of the Justices of the SCN. Their high-profile lawyers were even sure of themselves. They were going to break new legal grounds.

The approach to the SCN, to review a decision which the highest court made just two weeks earlier, called for extra-ordinary hubris. I pray that when they finally address the nation on this issue, they will be able to convince us that they felt there was a novel legal point to make. Afe Babalola and Olanipekun represent the legal establishment. They should not have taken that risk that got the Supreme Court Justices angry. Certainly, each of them leaving court on that day will be blaming himself for being involved in the case.
“There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain of success, than to take the lead in the introduction of a new order of things” – Niccolo Machiavelli, 1469-1527.

What the two great lawyers and their clients undertook in their desperate attempt to regain what they presumed to be their legitimate mandate to rule Bayelsa amounted to leading in the introduction of a new order of things. It is quite possible that each of them could recite the Nigerian Constitution off handedly. It is even possible that they might have delivered lectures on the role of the Supreme Court in the order of things. Nobody needs to remind them as Justice Amina Augie, had to do that;
“Section 235 of the 1999 Constitution, as amended, makes it very clear that no appeal can lie to any other body from any determination of the Supreme Court. This is the final court and the decisions of the court are final.”

Before that reminder to those who actually did not need to be reminded, she had also made the observation that “there must be an end to litigation.” Again those are not words that the lawyers would be hearing for the first time. And, just in case, other lawyers waiting in the wings to cash in on a good outing failed to get the message, she added for emphasis: “It is final in the real sense of the word, final, and no force can get this court to shift from its decision on the Bayelsa State election appeal number SC.1/2020…It will otherwise open the floodgate of litigation on all appeals decided by this court.” There was more. But, let us pause for breath and comment on this monumental decision and the underlying reason the SCN should not have been approached at all by the APC – and certainly not led by SANs highly regarded at home and abroad.
“Wisdom in people consists of the anticipation of consequences” – Norman Cousins, VBQ, p 274.

Actions have consequences and wisdom dictates that individuals should attempt to consider all the possible outcomes of the steps they intend to undertake – from the very best to the most horrible. Once again, I am giving Chiefs Babalola and Olanipekun the benefit of doubt that they acted, not for further enrichment, but from good intentions. Immediately, wise readers can spot one of the problems. Good intentions are never enough. For ages, it has been drummed into thick human skulls that “the road to hell is always paved with good intentions”.

The actualisation of their good motives would have resulted in the ‘hell’ to which Justice Amina pointed. According to William Scott, Lord Stowell, 1745-1836, “A precedent embalms a principle.” If the SCN had committed the blunder of ruling in favour of APC, it would not only have opened the floodgate to unlimited litigation on decisions made recently, it would have given reason for lawyers to argue for new decisions on virtually every case the SCN ever decided. The understaffed and overworked SCN would have been overwhelmed by the avalanche of petitions for review such that it would virtually grind to a halt. Certainly, some of the cases which Babalola and Olanipekun have won at the same court will also be affected. One of the repercussions of this is clear to an economist, if it escapes ordinary Nigerians and politicians. It will open a goldmine for lawyers; it will also throw a landmine under the nation’s judiciary. Despite the benefit of doubt given to the lawyers, it is the prospect of the bonanza which it would have given them that waters down belief in their good intentions. Otherwise, it would have revealed that they are not as ‘learned’ as we are supposed.

The colossal monetary gain for lawyers, if the appeal had succeeded, would have been procured at the great expense of ruining the nation’s judiciary, especially the SCN for good. Is it worth it?

One younger SAN was so appalled, he called for more punitive action against the two SANs. I would not support any further disgrace to be heaped on them. The SCN, with Justice Augie reading the decision in tears, had already taken the extra-ordinary step of imposing fines on the counsel. That embarrassment was, to me, sufficient punishment for the grave error of judgment on their part. Olanipekun is younger than Augie. But Babalola is far older.

The Ekiti SAN may have been called to the Bar when Augie was still filling forms to enter secondary school. She probably even worked under Chief before. To be tongue-lashed in open court by one’s ‘daughter’ at the bar was not Babalola’s finest Reports mentioned that the APC Chairman, Adams Oshiomhole, had to be restrained by aides on the Bayelsa Supreme Court verdict review.

He should have been allowed to talk as he belongs in dictatorships where “might is right”. This is the ‘father’ of a party who is locked in mortal combat with one of his ‘sons’ for control of his own ‘family compound’ (read Edo State). He announced shortly after the Supreme Court decision that “nobody should be sworn in” – as if Bayelsa is his private estate to be allocated at will. Just read the reports on the bedlam in Edo State. He and his spokesmen claimed he as attacked at the airport when he visited – despite the battalion of ‘Kill and Go’ guarding him – a claim the police dismissed. He claimed is street was barricaded as if he is the only one living there, etc. Oh! Adams!!

But, we have one piece of advice for Oshiomhole – even if he did not ask for it – because today, I am filled with the “milk of human kindness”. Elphinston said it to someone like Oshiomhole: “You’ve had your share of mirth, of meat and drink. It’s time to quit…”

Although she is under 70 and I am racing towards a century, if I ever get within distance of prostrating for Justice Amina Augie, I will do it. Same goes for Justice Odili. God bless both of them.

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