By Prof. Itse Sagay (SAN)

The Supreme Court, the Apex Court, the last bus stop, is supposed to estab­lish a profound code of conduct for social behaviour and interaction between man and man, man and society and man and gov­ernment itself. Its judgments are expected to be the embodiment of the highest values in the nation’s social and political culture. Its duty is to raise the standards of our col­lective conduct to a high level of civilization and social responsibil­ity and discipline.

Above all, based on its duty to promote an enhanced level of social conduct, responsibil­ity and a sense of right and wrong, in the polity, it has a duty to do jus­tice in all cases. The Court must always ask itself this paramount and overriding question when any matter is brought before it for ad­judication; namely, “where is the justice in this case?” Justice must always prevail over technicality. This has been a long principle of the Supreme Court until the very recent years.

The paramountcy of justice over technical law was empha­sized as recently as 2007 by the Supreme Court in Amaechi vs. INEC [2008] 10 WRN 1] where Oguntade, JSC, adopted this timeless passage in the judg­ment of the late, great Kayode Eso in Engineering Enterprise Contractor of Nigeria vs. Attor­ney-General of Kaduna State, ([1978] 1 N.S.C.C. 601 at 613).

“One stream that permeates all these decisions and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court. I am not saying that ex debito Justiciae by itself is a cause of action. It is to be the basis for the operation of the court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.”

The sum total of the recent decisions of this court is that the court must move away from the era when adjudicatory pow­er of the court was hindered by a constraining adherence to technicalities. This often re­sults in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the court.”

Still on the issue of the court’s new guiding philoso­phy, Oguntade, JSC. further de­clared that the Supreme Court and indeed all courts in Nigeria had a duty which flowed from a power granted by the Nigerian Constitution to ensure that cit­izens of Nigeria, high and low, get the justice which their case deserves. He continued thus:

“This court and indeed all courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure citizens of Nigeria get the justice which their case deserves. The powers of the court are derived from the constitution not at the suf­ferance or generosity of any other arm of the Government of Nigeria.” [2008] 10 WRN 1 at 114 – 5.

The case of Udeogu & Oth­ers vs. The Federal Republic of Nigeria (SC 662C/2019), com­menced in 2007 and was not fi­nally concluded until 2019 – 12 years later. The Supreme Court reversed the conviction of the High Court arrived at, after all of 12 years, on the ground that the trial Judge had no juris­diction? The substance of the judgment and its correctness was not queried or questioned. The Court simply brought out an obscure technicality to upset 12 years of solid, painstaking work towards eradicating cor­ruption from our public life. And what was the Court’s jus­tification? That the trial Judge was disqualified from trying the case after his promotion to the Court of Appeal. He was, said the Supreme Court, no longer a Judge of the High Court after his promotion. He should not have gone on to con­clude the 99% concluded case, because of his promotion.

However, the promotion of a High Court Judge towards the tail end of a criminal/corrup­tion case had in the past result­ed in starting a case de novo (afresh) before a new Judge, and the whole process of tak­ing the witnesses, tendering exhibits, etc, repeated again – all making the case drag on forever, creating prosecution fatigue, and resulting in an untidy status of “not guilty, not acquitted” for the accused, clearly an unknown status in criminal justice. The case of a well-known banker has been crawling from Judge to Judge since 2009 because of these judi­cial promotions resulting in an endless snake and ladder effect. The case climbs up the ladder to within an inch of the end and is dragged down by the snake to commence afresh before an­other Judge.