Kogi Election: Where Are The Dissenting Judgements?

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It is inconceivable that given the extreme controversiality of the Kogi election petition there was no dissenting judgement. Yet, in the past five years, it is doubtful whether a more difficult and controversial case existed, one that desperately yearned for a great jurist to leave an extraordinary judicial imprint on the practice of law in Nigeria. But in the past nine months or so, and in respect of the James Abiodun Faleke petition in particular, and at the three levels of the election petition tribunal, Appeal Court, and Supreme Court, the eminent justices were unanimous in their decisions. That unanimity is truly intriguing, for among legal professionals everywhere, the case was touted as a difficult and puzzling one. The conclusion many commentators will draw from the judges’ unanimity is that either the lawyers who scrutinised or argued the case were overrated or the judges who decided the case had become complacently uninterested in the many juridical and intellectual possibilities the case presented to the diligent and studious.

The judiciary has come under harsh criticism in Nigeria, with sundry allegations of either incompetence or corruption. Judicial officers have sadly done little to dispel these allegations, and contradictory judgements and seemingly flagrant abuse of rules and procedures have worsened the matter. Even the presidency, probably for narrow reasons, has been unsparing of what it describes as the inimical role the judiciary is playing in the struggle to entrench transparency, democracy and the rule of law. Indeed, what these criticisms and allegations indicate is that something is seriously amiss in the judiciary. Whether the problem is corruption, as many critics allege, or poor quality of legal education and cowardice, as friends of the judiciary fear, remains to be seen.

That the Hon Faleke petition can pass through three judicial layers, despite the novelty of its legal circumstances, without a single dissent from any judge in the fashion of Britain’s Lord Denning or Nigeria’s Kayode Esho is truly astounding. Have the appellate courts become a bastion of camaraderie, or a haven of cowards, or a citadel of unlearned and timid judges? Yes, Nigeria is embroiled in self-made crisis as it battles mediocrity in all sectors of national life, but the country’s appellate courts used to have a reputation for courageous and learned judgements exemplified by the golden age of the Supreme Court when Justices Esho, Chukwudifu Oputa, Anthony Aniagolu, Chukwunweike Idigbe, Mohammed Bello, Adolphus Karibi-Whyte etc. passed through the land with their giant footprints.

This column may have taken a stand almost from the beginning against the All Progressives Congress’ decision to impose/substitute Yahaya Bello in the governorship poll extended by electoral sleight of hand from November 21 to December 5, 2015, and had thought the case would present little or no complications to the judges in ensuring that justice was served. But regardless of this column’s preferences, it was expected that even if the Faleke petition would fail, surely two or three judges at the appellate levels would satisfy the country’s hunger for erudite and considered dissenting judgements enough to constitute at a later stage the bases of new laws in the fashion of Lord Denning and Justice Esho.

Who can forget the landmark Esho dissent in the famous case of Awolowo V Shagari [1979], wherein he took very strong exceptions to the majority decision? He was barely one year in the Supreme Court at the time. But in 2016, three Election Petition Tribunal judges, five Appeal Court judges and seven Supreme Court justices sat on the Faleke petition and none dissented nor felt inspired to engage in the intellectual leisure of dissenting. What has happened to the judiciary? It is shocking that none of the justices felt the need to summon the courage to break ranks with his colleagues in the service or defence of justice. If Lord Denning could accept a ‘step down’ from the House of Lords to return to the Court Appeal in order to seize the opportunity to make judgements that would transform the law and society, what has happened to the mettle of Nigerian judges that they do not feel inspired by a sense of history?

The opportunity to give a dissenting judgement in the novel case indicated by the Faleke petition is now lost. The onus to offer a redress will perhaps now pass to the legislature. The country may be overtaken by unremitting mediocrity, but it is hoped that somehow, a new breed of courageous and brainy judges with an eye on the future can rise to the appellate courts and begin the arduous task of restoring the glory of the Bench. That new breed is desperately needed in a country where the executive and legislative branches have dedicated themselves to undermining the cause of justice and destroying the rule of law, and the judiciary itself is too enfeebled by its many distractions to promote justice or defend the rule of law.

Credits: Idowu Akinlotan | The Nation


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