Reading the verdict of the apex court, it is clear the majority based their decision on technical breach of procedure rather than on the substantive merit of the case against INEC.
A legal technicality is a small but ultimately important detail of the law. When a case is decided based on “a technicality”, it means the defendant would have been in trouble for something but through some small oversight or misinterpretation of a rule, they are found not guilty.
The apex court in a split decision of five to two members of the panel, on Friday, agreed substantially with the Court of Appeal which ruled that a majority judgement delivered at the tribunal was a nullity. The court said the judge who had read the majority judgement at the tribunal, Justice Peter Obiora, was “evidently absent” on February 6th, 2019, following the documents before the court. In this case, the Supreme court says because the Lead judge in the Tribunal did not sign the attendance sheet on 6th February, it is assumed that he was not in attendance; hence cannot be a judge in a case he did not hear its facts and details.
Justice Bode Rhodes- Vivour who delivered the majority judgment supported by five of the seven-justices held that it is settled law that when “the rightly constituted panel of a court does not seat the activities carried out by that panel is a nullity.” Justice Akaahs in his minority judgment held that INEC in an election ought to remain an unbias umpire because even when it erred in law by relying on it’s manual to cancel some aspect of the election, the applicant still met the constitutional requirements of having the highest votes cast and spread. But the Election umpire went ahead to cancel the election and carried out a rerun showing that INEC had a plan up its sleeves.
In this case, the Majority based their verdict on a Procedural breach; while the Minority based theirs on Substantive justice, ignoring the technicality relied upon by their majority colleagues. So WHO made the right decision? From publicly available facts so far; Justice Obiora claimed he was in court on 6th February; but that he forgot to sign the attendance register. So APC in its appeal argued that the judge’s failure to sign at the end of the proceedings on February 6, 2019, was enough evidence to justify their claim that Justice Obiora was absent on the day in question. So at BOTH Appeal & Supreme Courts; the case was no longer about substantive discrepancies & illegalities alleged against INEC. It was hinged solely on legality of the Composition of the Tribunal on 6th Feb.
On one hand; I can see why procedural justice should be promoted as an aid to substantive justice. After all, the fruit from a poisonous tree is also equally poisonous. But the court should have put more weight on what is at stake in this case. Verdicts like this does not develop our jurisprudence as all the substantive matters about INEC’s conduct have not been addressed by either the Appeal or Supreme courts. They simply focused on the procedural irregularity and dismissed the case on that ground alone.
So we are not better informed on whether INEC can do what it did in Osun in future elections or not as the courts turned wilfully blind eyes on the substantive issues. Justice Obiora, could have been deposed on oath to ascertain his attendance and the courts can then focus on the substantive issues that will help develop our law and polity. That is what is needed; not simply a technical judgement; especially when the technical irregularity was not the fault of all parties to the case. A judicial irregularity of such pettiness, that could have been remedied as suggested above should not have been relied upon solely to vitiate a verdict such that the substantive allegations were not explored by the justices.
This is becoming a pattern. In the case of Onnoghen; the court of appeal dismissed the case because, “it has been overtaken by event” since Onoghen had resigned. Onoghen’s resignation should not have affected a full verdict that will help develop our law and set justiciable precedents to grow our jurisprudence. As a result of their reluctance o address the substantive issue of whether the President has power to suspend a CJN; we are left non the wiser.
So a President can therefore confidently suspend a CJN in future as the appeal court did not address that question at all. Using just technicalities to decide cases on certain magnitude is a disservice to justice and in certain cases can be as a result of judicial corruption. It is almost certain that the current Presidential election petition could also be decided purely based on technicalities if these precedents hold.
This is not about APC or PDP. When substantial wrong is alleged, the court should give us their verdicts based on them and not dismiss such cases just on technicalities. At the least; the courts could dismiss a case based on technicalities; BUT still give opinions on the substantive matters in ways that informs and grow our common law. That is what Lord Denning did in an Obiter in ‘Central London Property Trust Ltd v High Trees Ltd’, where although the case was dismissed; but nevertheless the judge used its facts to re-establish the doctrine of Promissory Estoppel in modern English Contract Law. Just dismissing cases on technicalities while failing to address alleged substantial illegalities simply perpetuates impunity and weakens the rule of law. This must stop now.
Dr. Charles Omole tweet @DrCOmole
