The event was billed as a birthday lecture. By the end, it was perhaps one of the largest gatherings of the elite of the legal profession, who came together in honour of one of its own, Osaro Eghobamien, who holds the distinction of Senior Advocate of Nigeria (SAN). Osaro is a man who cares about the justice system, and he has given much of his life and work to campaigning for a justice system that serves all and not just some. It is therefore not surprising that former Vice President Yemi Osinbajo, GCON, was chosen to be chairman of the occasion to explain with clarity and situate each decision coherently within the law as a whole.
If we remain faithful to that endeavour, the law will not always be simple, but it will remain intelligible; it will not always be unanimous, but it will remain principled; and, above all, it will continue to command confidence because it is seen to rest on reason rather than mere authority.
‘The prevalence of unresolved conflicting decisions may be an index of institutional weakness – not necessarily of bad faith, but of a system that has not equipped itself with sufficiently clear rules for managing internal conflict.’
He is associated with arguably the most transformative justice system review in Nigeria when he served as Commissioner for Justice in Lagos State. In his opening remarks themed ‘Clarity, consistency and confidence in the administration of justice’, Professor Osinbajo highlighted the certainty of the law as being fundamental to any civilised notion of justice or the rule of law, maintaining that ‘such is the foundational nature of certainty and consistency of laws that the Hon Justice Agim of the Supreme Court warned that ‘if we cannot be sure what the law is at any time, then there is no law.”
Justice Agim was reading the lead judgement in a case where the court had to consider one of the most egregious situations of conflict in the decisions of the Court of Appeal; the case was Manasseh v Goshwe. The Court of Appeal had removed Plateau Governor Caleb Mutfwang over defects in the PDP’s internal congress. The Supreme Court overturned the Court of Appeal.
Nomination disputes were pre-election matters outside the tribunal’s jurisdiction; rival parties lacked standing to challenge them. But similar wrong reasoning had already cost PDP legislators their seats, but their own appeals ended at the Court of Appeal, leaving them without further recourse and their constituents without their elected representatives. Delivering the lead judgement, Agim JSC condemned the disregard of settled precedent. He said, ‘The deliberate refusal of courts to follow the established precedents of this court on principles that have become trite and elementary, having been subject to restatements in an unending line of cases, is of grave concern. It has very serious implications for the sustenance of the rule of law, peace, order and security of society.’
According to the jurist, ‘An essential requirement of law is certainty of content and application. Once this certainty is removed, it ceases to be law and becomes a tool to be used manipulatively at the whims and caprices of those of us in whom the society has invested its trust to guard and enforce the law truthfully, objectively, and fairly without fear or favour to yield substantial justice at all times for the public benefit. It amounts to judicial misconduct of a very extreme proportion for a judicial officer to disregard clear provisions of the Constitution and other legislation and the precedents of this court. The whole engagement from the High Court to the Court of Appeal amounts to illegitimate adjudication or false judicialism, a flagrant and oppressive abuse of judicial process in an unprecedented manner. I will not say more on this. These few words are enough for us all.’
The former vice president said Justice Agim laid bare the enormity of the challenge and that the severity of his rebuke of the Court of Appeal reflects the magnitude of the danger posed to Nigerian society. He noted that ‘precedent sets the guardrails for judicial power; without guardrails, power slips into impunity. One of the worst consequences of a failure to follow precedents is the catastrophic impression of judicial corruption or compromise.
‘An impression that is notoriously difficult to shake off and is sufficient to erode the credibility of our system of justice. Once citizens believe that outcomes turn on influence rather than law, even unimpeachable judgements of our courts – which are clearly in the majority – struggle to command confidence. But conflicting appellate decisions cannot be attributed simply to judicial malfeasance.’
‘In the vast majority of cases, they reflect genuine uncertainty about the rules for reconciling competing authorities – a challenge shared by many common-law jurisdictions. Our task this afternoon is therefore to add our thoughts to developing a coherent framework of principles, grounded in scholarship and faithful to the Constitution, to guide both lower courts and the Supreme Court in resolving conflicts, including those within its own decisions.’
Preparing the ground for the debate that followed that afternoon, Justice Peter O. Affen of the Court of Appeal was asked to deliver a keynote address. He had earlier been described by Professor Osinbajo as ‘a jurist whose erudition, clarity and commitment to justice have earned him the respect of the practising bar and legal academia alike, making him eminently suited to this task.’
He did not disappoint, even if he began with a caveat to allow him to speak ‘extrajudicially’. Not being a lawyer, this writer benefitted immensely from the wisdom of two lawyers who flanked him. The respected judge got the gathering laughing when he said he would stand by the established protocol, being a man who was used to being addressed as ‘my lordship’ by all who came before his court. He said, ‘Consistency gives stability to principle. Clarity makes judicial reasoning intelligible. Coherence enables individual decisions to fit within the larger fabric of the law. These are not abstract ideals. They are disciplines of judging, and they bear directly upon the confidence which the public, the Bar and the courts themselves are entitled to place in the judicial process. Our common law heritage teaches a simple truth: the law must be reasonably predictable. Citizens plan by it. The Bar argues for it. The bench decides by itself. That predictability rests substantially upon judicial precedent (or stare decisis): the discipline of standing by things already decided. It is in the courts that the citizenry primarily feels the keen cutting edge of the law; thus, one thing we cannot shy away from is that unless the courts are equipped to perform their roles properly, none of the objectives of a democratic society can be realised.’ According to him, ‘Aside from the challenge of being treated as the perennial poor cousin of the political branches, a branch of government sustained principally by judgement cannot afford to speak in uncertain or discordant voices: coherence is the currency of its authority. Yet the Nigerian experience presents a recurring difficulty: what should the Court of Appeal, or indeed a court of trial, do when the Supreme Court itself appears to have given inconsistent decisions on the same issue? ‘The problem,’ he argued, ‘is not merely theoretical. Conflicting appellate pronouncements have persisted in important areas of Nigerian law, including but not confined to: labour and employment law, particularly the jurisdictional boundaries of the National Industrial Court and the applicability and scope of limitation laws; jurisdiction generally; locus standi; election petition timelines and electoral matters generally; the relationship between garnishee proceedings and applications for stay of execution; admissibility of registrable instruments; the distinction between final and interlocutory decisions; questions of appellate procedure, including how and when an appeal to the Supreme Court is validly initiated, and until recently whether appeals could lie directly from the directions of the LPDC. At the level of the Court of Appeal, a recurring nagging conflict was whether the CBN is a public officer for purposes of garnishee proceedings. There is conflict even in how to resolve conflicting decisions. The irony is unmistakable: stare decisis, a doctrine designed to secure certainty and predictability, may itself become a source of uncertainty where the precedents said to bind do not speak with one voice. The prevalence of unresolved conflicting decisions may be an index of institutional weakness – not necessarily of bad faith, but of a system that has not equipped itself with sufficiently clear rules for managing internal conflict. My principal argument is that the answer does not lie in merely directing lower courts to choose but in supplying principled rules and placing the primary responsibility for authoritative resolution where it belongs: with the Supreme Court. Now, the proper business of the Supreme Court is to take cases that establish principles of general application. As Oputa, JSC, explained in Nwadike v Ibekwe, ‘The Supreme Court should really not be bothered with messy issues of fact. It should be given ample time and opportunity to concentrate on and shape the law of this country and also interpret the Constitution. These two functions are those that rightly belong to any country’s court of last resort.” He said whether we have given our top court the required time and opportunity to discharge its critical gatekeeping role is an open-ended question. My admittedly limited research did not disclose any other final court to which appeals lie as of right, and this makes the Supreme Court of Nigeria the most overworked and overburdened final court: a fact acknowledged even by ardent critics of its work.
In conclusion, the judge said, ‘Ultimately, certainty of precedent exists not for judges alone. It exists for the lawyer who must advise, the public authority which must act according to law, the citizen who must regulate conduct, and the litigant entitled to expect that materially similar cases will be governed by coherent legal principles.
‘The proper treatment of conflicting judgements is therefore not merely a technical matter of appellate practice. It is an indispensable element of the rule of law. In the end, coherence, clarity and consistency are not standards by which judges stand outside the judicial process and assess others. They are disciplines to which all of us who exercise judicial power must continually submit ourselves. No court is insulated from difficult choices, and no judge is beyond the possibility of error. The necessary humility is captured by the famous expression ‘We are not final because we are infallible, but we are infallible only because we are final.”
He maintained that ‘what sustains the authority of the judicial process is the constant endeavour to reason from principle, to explain with clarity, and to situate each decision coherently within the law as a whole. If we remain faithful to that endeavour, the law will not always be simple, but it will remain intelligible; it will not always be unanimous, but it will remain principled; and, above all, it will continue to command confidence because it is seen to rest on reason rather than mere authority.’
I had admitted earlier that I am not a lawyer but a journalist. If the points as put forward by the former vice president and the judge are so commonly known, why is it the case that one of Nigeria’s greatest challenges is that of a corrupt and even a failed justice system? One common answer I heard from those who attended was that of the corrupt process for the selection of judges in Nigeria. Some are appointed judges because they have been sponsored by one politician or another. Some are denied appointment because they are perceived to be too forthright and must thus be kept far from the bench. Several specific cases were presented to me which cannot be printed here for their sordid nature. And fingers were pointed at the judicial council, the NJC, as the place where the cleanup must begin. I rest my case.