Through The Prism Of Technicalities Over Justice; A Call For Judicial Activism In Nigeria

By Musa Okikiola Zubair

INTRODUCTION:

The Nigerian judiciary system has been facing various challenges, including lack of trust, corruption, and political interference. One of the critical issues affecting the legal system is the prioritization of technicalities over justice. This Article analyzes the concept of judicial activism in Nigeria and how it can be used to address the issue of technicalities over justice in the country through some recent decisions of the Apex Court in Nigeria, where Much reliance has been placed on Technicalities.

BACKGROUND:

The concept of judicial activism has been used to describe the role of the judiciary in strengthening democracy and promoting the rule of law. It is an approach to interpretation that encourages judges to apply broader legal principles and values to enhance the effectiveness of the law. Judicial activism can be seen as a reaction to judicial restraint, which advocates for judges to limit their role to interpreting the law narrowly, especially the Rules of Court.

TECHNICALITIES OVER JUSTICE IN NIGERIA :

The Nigerian judicial system has been plagued by the excessive focus on technicalities. The approach has led to the dismissal of cases on the bases of minor technicalities, leading to the denial of justice to parties involved. Imagine where a case lasted for over 23years in a Court. No matter the outcome, it is no more Justice. This is premise on the saying that; Justice Delayed, is Justice Denied.

The Nigerian legal system is notorious for its reliance on technicalities, which often produce unjust outcomes. One area where technicalities frequently come into play is in criminal trials. Defendants may be acquitted even when the evidence suggests they are guilty due to technicalities such as the failure to obtain proper arrest warrants or the inability to provide enough evidence to support a guilty verdict. This situation often results in delayed justice or the outright denial of justice for victims.

Another area where technicalities come into play is in civil litigation. Lawyers may exploit procedural loopholes to delay cases ad infinitum, which can often lead to situations where justice is denied or delayed. This is especially true for the poor who cannot afford high-priced legal representation.

REVIEW OF SOME RECENT DECISIONS OF THE APEX COURT, WHERE TECHNICALITIES BECAME THE ORDER OF THE DAY :

The Decision of the Apex Court in SKYPOWER EXPRESS AIRWAYS LMITED vs UBA & ANOR (2022) 6 NWLR 2022, to my mind serve as a bad precedence to our case laws. The Supreme Court restated the position of the law that the issue of jurisdiction can be raised at any time at all stages of the judicial ladder. The Court observed that the processes in question were signed for and in the name of “J. Odion Esezoobo & Co” in contravention of sections 2(1) and 24 of the LPA. Relying on the cases of Okafor v Nweke, SLB Consortium v NNPC and FBN Plc vs Maiwada, Garba JSC who read the leading judgment dismissed the appeal and struck out the suit at the trial court, holding that the originating processes were incompetent and incapable of activating the jurisdiction of the court.

The import of the decision of the Supreme Court is that an incompetent originating process is incapable of activating the jurisdiction of the court. Riding on this background, a court cannot competently exercise its jurisdiction on the basis of an incompetent originating process.

The question that comes to mind is, what happens when the decision of a court is challenged on appeal on the ground of incompetence of the originating process, where there is in fact a challenge on the competence of the notice of appeal? Will the appellate court first determine its own jurisdiction before the jurisdiction of the lower court? The urge to answer in the affirmative is so strong. In Persons, Names Unknown v. Sahris Int’l Ltd (2019) LPELR-49006(SC), the Supreme Court held that “as a matter of law and practice, Courts are always enjoined to determine issue of jurisdiction first when raised by any of the parties before it, before considering or determining the appeal on the merit.”

The case under review presents an apt example. The basic complaint which the 1^st Respondent ventilated at the Court of Appeal was that the originating processes were incompetent having been signed in the name of a law firm. The Appellant filed a preliminary objection challenging the competence of the appeal and the jurisdiction of the Court of Appeal to entertain same. The preliminary objection was struck out.

On appeal to the Supreme Court, the Appellant again challenged the jurisdiction of the Court of Appeal to entertain the appeal. Riding on the case of Persons, Names Unknown v. Sahris Int’l Ltd (supra), the Supreme Court ought to have first determined the issue of jurisdiction of the Court of Appeal. It is only when it finds that the jurisdiction of the Court of Appeal is properly activated that it can determine the appeal from the trial court. Similarly, if the Court of Appeal was found to lack jurisdiction, then its decision striking out the suit would have been of no moment and the appeal to the Supreme Court would not have arisen.

Surprisingly, in the case under the review, the Supreme Court held at para F-G at page 227 that “although the appellant also challenges the competence of the 1^st Respondent’s notice of appeal in the lower court, in the absence of or without the requisite jurisdiction on the part of the trial court, if it turns out, to entertain and conduct proceedings in the appellant’s suit initially, then the issue of question of an appeal; competent or incompetent, against the outcome of the purported proceedings conducted in the suit, would not arise.” In effect, the Supreme Court held that it need not determine the jurisdiction of the Court of Appeal if in fact the trial court lacked jurisdiction.

With the greatest respect to the Justices of the Supreme Court, that decision is akin to counting two before one. Generally, in the hierarchy of courts, actions flow from the High Court to the Court of Appeal and finally, the Supreme Court. An appeal to the Supreme Court presupposes that there was an appeal determined by the Court of Appeal. If it turns out that there was actually no competent appeal at the Court of Appeal, then there is nothing for the Supreme Court to adjudicate on.

With due respect, the Supreme Court was in error when it failed to first determine the challenge on the jurisdiction of the Court of Appeal before venturing into the jurisdiction of the trial court. No wonder, My Lord Hon. Justice EKO (JSC) had a dissenting opinion. Need I remind you that, this case lasted for 22years in our Courts of Law arguing the competence of a process signed in the name of a law firm. The Substance of the Case was not even in question. How do we relate this to a Common man, taking the Court to be his last hope ? Same fate happened in BUHARI V ADEBAYO, FATUNDE V FAN MILK where Signing of Court processes as a matter of Technicalities decided the fate of the APPELLANTS. Sadly, Dura Lex Sed Lex.

Let’s see the Case of KASHIM V STATE (2022) 18 NWLR pt. 1861 SC, On 16-6-2016, when the appeal came up for hearing, the appellant through his counsel purported to have written a letter seeking for an adjournment. However, the letter was not brought to the attention of the court it bore a wrong appeal number.

The Court of Appeal invoked Order 18 rule 10 of the Court of Appeal Rules,2011 and dismissed the appeal for want of prosecution “consequent upon the appellant’s failure to file appellant’s brief within forty-five days from the service of the record of appeal on him as prescribed by the then applicable Order 18 rule 2 of the Court of Appeal Rules,2011”. As at that date, there was no application by the appellant for enlargement of time to file the brief of argument out of time.

Subsequently, the appellant filed a motion on notice at the Court of Appeal seeking an order setting aside the court’s decision dismissing the appeal and an order relisting same to the court’s cause list for hearing. In its ruling, the Court of Appeal dismissed the application on the ground that it has no power to relist an appeal it has dismissed for want of prosecution consequent upon the appellant’s failure to file appellant’s brief and in the absence of an application for extension of time to file appellant’s brief.

Dissatisfied, the appellant appealed to the Supreme Court. Unfortunately for him, the Apex Court equally dismissed his Appeal. Here comes a million dollar question, does brief of Arguments gives life to an Appeal or the Notice of Appeal itself? This Question as been settled in legion of Cases, where the Court held that, the Notice of Appeal goes to the Root of appeal.

Having said that, the Rules of the Court accommodates instances where the Appellant could still Appeal out of time. By extension, same room ought to have been given for filing of Briefs respectively. Even though, the Court in it wisdom made a Notable pronouncement is this case, On Need to amend Court of Appeal Rules to exclude appellant facing death penalty from rule on dismissal of appeal for want of prosecution –

Per OGUNWUMIJU, J.S.C. at page 202, paras.A-HA that;

“In Klaus Thompson v. N.I.P.S.S. supra and the later case of Asalu v. Dakan (supra) almost all the Supreme Court Justices expressed sympathy for an appellant where an appeal would be dismissed due to the harshness of that order. The Supreme Court had relied on a plethora of previous authorities on this pointViz: Ogbu v. Urum (1981) 4 SC 1; Babayiga v.Alh. Bida (1998) 2 NWLR (Pt. 538) Pg. 367;Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) Pg.184; Nwugha v. Nwala (1992) 2 NWLR (Pt.225) Pg. 610; Olowu v. Abolore (1993) 5 NWLR(Pt. 293) Pg. 255; Onumajuru v. Akanihu (1994)3 NWLR (Pt. 334) Pg. 620; The State v. Nnolim(1994) 5 NWLR (Pt. 345) Pg. 391; Olumesan v.Ogundepo (1996) 2 NWLR (Pt. 433) Pg. 628;Chime v. Ude (1996) 7 NWLR (Pt. 461) Pg.379 to insist that the apex court was not at liberty to relist the appeal.

Both Niki Tobi, JSC and M. L. Uwais, CJN commended Order 6 rule 9 of the 1985 Supreme Court Rules which stipulates the consequence of a strike out rather than a dismissal of an appeal where the brief was not filed within time. Uwais, CJN observed that the Supreme Court has to depart from the harshness of the 1977 and 1985 Supreme Court Rules in this regard.

It is apparent that the 2011 Rules have retained the strictness or be it ‘harshness’ of the 1984 Rules interpreted in Klaus Thompson v. N.I.P.S.S. etc. The rules have even gone a step further to stipulate that this court can suo motu dismiss the appeal for want of prosecution on the basis of failure to file the appellant’s brief within time.

It is important to note that by the rules of the Court of Appeal, the court can strike out or dismiss a suit for want of diligent prosecution depending on the circumstances of the case. In such a case, the rules allow the appeal can be re-listed. However, when the appeal is dismissed for failure to file the appellant’s brief, the appeal cannot be re-listed. The decision law has been consistent and implacable on that.

The implacability, in this case, has the result of shutting out the appellant in the criminal trial who is facing the death penalty. It is applicable because Order 18 Rule 1 is made applicable to all appeals. I strongly recommend an amendment to the rules of the Court of Appeal that excludes appellants facing the death penalty in criminal trials from the applicability of the implacable rule. This is because most criminal trials and appeals are prosecuted pro bono and counsel tend to take their time doing the needful.”

Studying this case, I was bent to ask; If Gold could rust, what should Iron do? This is a Decision of the Apex Court in the Land, hence is no more room for Appeal. By implication, the Decision of the Trial Court still Stands, and the Appellant will be Sentenced to Death!

To my mind, the Nigerian Administration of the Criminal  Justice System has been kidnapped by Rules of Court, as it is in this case, a threat to the Confidence reposed in our Courts been the last hope of the common man.

Wait a minute! we all know what transpired in our recently Concluded Elections, Specifically the Decision of the Supreme Court in MACHINA V APC & ORDS  which has generated a lot of ink spilt on and off social media. Where a party was declared as a winner in an Election he never participated in due to the Appellant instituting his Actions via a wrong Originating process. Sigh! This is a topic for another day.

JUDICIAL ACTIVISM AS A SOLUTION :

Judicial activism offers a solution to the prioritization of technicalities over justice in Nigeria. The judiciary can use the approach in interpreting the law to ensure that justice is done, even in cases where minor technicalities could have resulted in dismissal. In doing so, the judiciary will reinforce its role as the protector of the rule of law and ensure that the law is applied in the best interest of society. As rightly recommended by Uwais, and Niki Tobi CJN (As then was).

BENEFITS OF JUDICIAL ACTIVISM :

Firstly, judicial activism will help build public trust and confidence in the judiciary. By prioritizing justice over unnecessary technicalities, the judiciary will demonstrate its commitment to the rule of law, and this will make people believe that the judiciary is independent and impartial.

Secondly, Judicial activism will promote legal certainty. It is through judicial activism that the legal system can adapt to the changing values of society. It ensures that the law is interpreted in ways that are consistent with the changing economic, social, and political conditions of society. Judicial activism provides a high level of predictability and security for businesses and individuals who rely on the legal system for their rights.

Thirdly, Judicial activism can play a crucial role in social and political reforms. Activist judges can interpret legal provisions in a way that will promote the ideals of democracy, such as human rights and social justice. They can use their positions to influence the legislative and executive branches of government to implement policies that will promote the welfare of the citizens.

CONCLUSION:

In Nigeria, activism by judges is a vital weapon for advancing justice. It is a strategy that improves the efficiency of the legal system and aids in balancing conflicting social interests.

The judiciary can show its dedication to upholding the rule of law & increase the public’s trust in the judiciary by placing justice above technicalities. Therefore, it is crucial that judges and other legal professionals in the nation recognize judicial activism when interpreting the law.

Source:TNL