By Giovanni Onyewonsa

When Dele Farotimi, in his controversial book: ‘The Nigerian Criminal Justice System,’ dragged judges in the mud by shredding the seeming remains of the supposed integrity of the hallowed chambers as it concerns the questionable nature of judgements, many Nigerians were impressed by the frontal approach of the activist. It, however, brought to the front burner a critical issue in the nation.

This analysis seeks to view the balance of justice in a judgement rendered by the supposed final arbiter on whose shoulders the fate of citizens rests.

For ages, lawyers had criticised courts’ decisions on cases casting slurs on the integrity of the hallowed chambers.

In one of his famous quotes, the late Justice Chukwudifu Oputa had stated that the Supreme Court is not infallible but it is infallible because its decisions are final.

Oputa had said: “We are final not because we are infallible, rather we are infallible because we are final.”

This memorable quote by Oputa speaks on the powers of the Supreme Court where he served between 1984 and 1989.

To the critical stakeholders in the judiciary, the Supreme Court is not infallible, but when it errs, its decision still remains final, except it reverses itself. But did it err in its May 24, 2024, judgement regarding contract numbers: JOONL-001KTTA 140415 in suit number: SC/CV/709/2020 between OWIGS AND OBIGS Nigeria Limited and a 2nd generation Bank (name withheld) as the confirming bank in a case of breach of quadrilateral agreement between the buyer, seller, LC issuing bank and LC confirming bank?

The Nigerian corporate and business communities are currently licking their wounds in an alleged ‘injurious verdict’ of the Supreme Court that tends to shield the bank (name withheld) from the liabilities of its breach of agreement that was maliciously inflicted on the appellant.

The management of Owigs and Obigs Nigeria Limited, in its plea to the Chief Justice of Nigeria, CJN, Justice Kudirat Kekere-Ekun, urged her to save the apex court from tendencies that could damage its reputation in its judgement that was given in favour of the bank, without recourse to an unadulterated flow of justice in the case brought to it by the internal merchant arguing that the verdict was rendered in bad faith and tendentious too.

The company’s complaint seeks a reversal of the judgment, on the grounds that the judgment was based on fictitious rulings, not traceable to any source that defies logic and reason, ignores established facts, and distorted reality and lacks connection to the actual circumstances or context.

Specifically, the judgment erroneously relied on incorrectly identifying the Seller’s bank as the Issuing bank of the Letter of Credit; misapplying the Letter of Credit to contracts with agents and facilitators; rather than the Buyer-Seller contract; wrongly classifying the buyer as a third party to the Sales Contract; falsely assuming an irrevocable Documentary Letter of Credit operates without a confirming bank; misconstruing the autonomy of the letter of credit as immunity for the confirming bank (name withheld) to breach contracts without liability.

“These flawed rulings formed the basis of a deceitful and fraudulent judgment. We urge that the judgment be reversed.”

In its petition to the CJN dated January 9, 2025, and signed by the MD/CEO, Emeka D. Okorie, Owigs and Obigs had pleaded for a reversal of the judgement calling on the Supreme Court to reverse itself and be on the side of Justice.

The case involves a breach of international business contract for the export of solid minerals on 100 per cent credit basis with a letter of credit confirmation by the confirming bank (name withheld) as required by the fundamental credit term of the contract. The main contract JYOONL-001/KTTA 140415 that comprises four interdependence and interrelated autonomous contracts which include the buyer’s provision of funds for LC security to the Issuing bank; the issuing bank’s issuance of LC to the confirming bank for confirmation to the seller; the confirming bank’s (name withheld) confirmation of the LC to the seller (appellant) as required by the fundamental credit term of the LC based contract and the seller’s performance of shipment of goods to the buyer based on the confirmed LC. Sadly, the bank that’s confirming allegedly breached the multi million dollars credit term without any reason whatsoever, activating the contract’s default triggering off specific damages without remedy.

The petition to Justice Kekere-Ekun argued that the Appellant’s fundamental right to generate/earn revenue and profits through a legitimate business transactions as established by the laws of the Federal Republic of Nigeria and the Corporate Affairs Commission was breached due to the malicious violation of the contract and being set free by the controversial judgement of the Nigeria’s apex court.

“When the Appellant turned to the court after the defaulting bank failed to meet its contractual obligations despite numerous promises and assurances, and neglected to settle its default liabilities as required and provided in the agreed terms, it (Appellant) wasn’t seeking special damages or rights as misconstrued by the Judges. The Appellant request was straightforward which is to embrace the specific remedies outlined in the contract’s default and liability clauses which clearly warns against breach of contract and its automatic consequences including the Appellants’ right to generate legitimate revenue which is violated under the sales contract.’ The statement said judicial responsibility of the court is to uphold the fundamental corporate rights, adding that:

“The courts don’t create fundamental corporate rights, or grant the same as fundamental corporate rights are inalienably inherent meaning that such rights are automatically granted to companies by virtue of their corporate existence. Courts don’t grant these rights; rather, they recognise, protect, enforce and uphold it in the spirit and letter of unblemished Justice among others.”

The petition further asserted that the role of the court is to ensure that this pre existing rights are respected, protected and not violated by government actions, laws and policies, private individuals or organisations and the courts achieves this through interpretations of laws and constitutions, judicial review and government actions, adjudication of disputes and issuance of injections, declarations, or orders.

In this instance, Owigs and Obigs stated that, “the judgement by the Nigerian judiciary is scandalous and alarming as it deviates from the norm. The nation’s image is at stake, and the Nigerian business community is facing a stigma from the International community in this case and it is possible the judiciary underestimated the severity of the judges decision’s negative impact on the country. The judiciary should protect and secure the nation and not compromise its interest or hinder the President’s efforts at attracting foreign investors. The CJN must intervene in this dangerous precedent from undermining the nation’s economic and international commercial reputation. The implications of the judgement in this case is far-reaching, rewarding the breach of an international commercial contract and introducing a troubling norm where contracts can be breached without consequences with international communities watching. The decision of the judges to shield a defaulting bank from liabilities of breach of contract sparks global outrage while its repercussions may deter genuine investors from doing business in Nigeria.”

The posers, therefore are: this fictitious and scandalous judgement by the Supreme Court raises questions about the judiciary’s understanding of its role in upholding the nation’s interest and promoting a conducive business environment. The national judicial council established under the 1999 constitution, should ensure the Judiciary acts in the best interests of the nation and her citizens. The court of Appeal had previously deemed this matter a blow to the nation’s image. Regrettably, the elements within the Supreme Court have further dented our collective reputation. This judgement is heart wrenching and the judiciary must now find a way forward by addressing the concerns and bigger implications of its ruling that casts questionable shadows on the integrity of the apex court.

In this labyrinth of judicial confusions as it concerns the contentious judgement in this case, it suffices to call the Chief Justice of Nigeria to save the judiciary from the fangs of fraudulent judges in the apex and lower courts.

As Nigerians brace up for a new dawn under the current administration of President Bola Tinubu, who rides on a national agenda of renewed hope, it is trite for the apex court to not only weed out money mongers from the its ranks but immediately commence the process of a judicial review of scandalous judgements.

The stream of justice must be unadulterated to be able to achieve its fundamental objective. In the aforementioned case, it may not be wrong to say that justice is crying and the hope of the common man is dimmed, particularly the business community, on whose shoulders the responsibilities of a vibrant and workable economy stand.

The task before Justice Kekere-Ekun is to immediately file the rough edges in the judgement that seeks to shield one of the trading banks in Nigeria from taking responsibility for its actions and inactions. Until actions carry consequences, we may not achieve the prosperous nation for which we all crave. The amount involved in the breached contract is in millions of dollars and whoever is found hindering the progress of the business should, without prejudice, be made to pay for it.

*Onyewonsa, a public analyst and social crusader, writes from Lagos.