Lessons in Neutrality
By Andrew Obinna Onyearu
In a statement issued by its President, Olisa Agbakoba SAN, the Nigerian Bar Association condemned the Independent National Electoral Commission (INEC) for making an application to the Supreme Court to set aside its judgment in the Anambra State Governorship case. In explaining this position, the statement issued on behalf of the NBA contains a number of critical and far reaching observations.
Agbakoba disclosed that the NBA viewed the application as an attempt to trivialise the Supreme Court and that it was surprised that the Supreme Court was extending magnamity by giving the application undeserved attention and adjourning it for further consideration to January 2008. It suggested that by so doing, the Supreme Court had given those applications undeserved credibility and that the matter should have been dealt with “brevim manu instanter” as it did in relation to a similar application in the case of ARCON –v- Fassassi. Agbakoba, then went on to explain the reasons why, as is suggested, the Bar Association took the position that it did.
This criticism of the applications currently before the Supreme Court and the manner in which the position of the Bar Association has been conveyed leaves some disturbing consequences in its wake. As the Bar Association would readily assert, it is the umbrella body for all lawyers admitted to practice law in Nigeria. It is made up of 88 branches spread throughout the 36 states in Nigeria and has a membership base of some 50,000 lawyers. It is, by its own assertion, the largest professional association in Africa and in Nigeria, remains the top professional association. The Nigerian Bar Association asserts, as central to its existential objectives, a commitment to the promotion of democracy and defence of the rule of law, good governance, social justice and the dignity of all persons. Its advertised mission is to use law as the instrument of social change. For all intents, it is the “voice” of lawyers in Nigeria. These objectives, clearly, import the necessity to maintain a position of desirable neutrality especially in relation to extant litigation and is consistent with the position of Bar Associations all over the world.
Consider some examples. The International Bar Association, to which Nigerian lawyers also belong to in droves, was established in 1947 and is the world’s leading organisation of international legal practitioners, Bar Associations and Law Societies. Its principal aim includes the promotion and exchange of information between legal associations and, most importantly, the support of independence of the judiciary and rights of lawyers to practice their profession without interference. The American Bar Association describes itself as the largest voluntary association in the world. It states that it has more than 400,000 members and provides the United States with law school accreditation, continued legal education, information about the law, designed programmes to assist lawyers and judges in their work and initiatives to improve the legal system for the public. The Bar Council in England and Wales is the professional body for Barristers. It provides representation and services for the Bar and guidance on issues of professional practice. The Law Society is the corresponding body for Solicitors. Its key functions include negotiating with the profession’s regulators, government and others to offer training, advice and where possible to help protect and promote solicitors across England and Wales. Its parliamentary activity includes lobbying on a number of Government bills each year. These descriptions coincide, in every respect, with the responsibilities that these organisations are undertaking in their respective countries. In none of those countries do the associations assume the responsibility of appraising litigation by Government bodies or by individuals in quite the same manner as our bar association has done, on this occasion. They do not take sides.
There are serious issues that arise from this posture. The first is that the statement must conflict with the position of those within the organisation itself who may not take the same position as that set out in the statement. The first constituency in this respect would be the lawyers representing the parties who have made the application. Clearly, their views would be diametrically opposed to those that have been expressed by the Bar Association to which they all belong. There must also be the issue as to whether this represents the unanimous position of the organisation itself. Second, is the posture of the Bar Association with regard to the manner in which it suggests that the Supreme Court should deal with the applications. Every litigant is entitled to have his say, however unmeritorious the application is. The right to appeal to the Supreme Court is a constitutional one. That right, however often repeated, and however spurious the application may be, does not, in any way, detract from the finality of the position of the Supreme Court. This position has been assured by the provisions of section 235 of the 1999 Constitution which underpins that Court’s supremacy and will render as an abuse, any attempt by any litigant before it to seek any or alternative relief before any other body, howsoever it is dressed.
An invitation to that Court to revisit a decision that it has made, with respect, is not an abuse of process. Both Uba and INEC raised an allegation of bias, which, itself, arose first in that court. The Supreme Court is the highest court in the land. It is not conceptually possible to raise that before any other court. It is only that court that can address such an allegation. Whilst this may not have happened in Nigeria before, it is instructive that there are similar examples of this occurrence elsewhere. In the United Kingdom, this situation arose in Re Pinochet II in which an allegation of bias was raised with regard to the antecedents of one of the Law Lords, Lord Hoffman. There was no known procedure by which the parties could re-approach that Court. All the parties before the Court conceded that it would be appropriate for a petition (this being the way by which appeals are normally launched in the House of Lords) to be presented to it to enable it to consider the issues. The House of Lords, in its infinite and unquestionable wisdom, reconstituted a different panel of five Law Lords who heard the petition on that allegation and set aside its earlier judgement. There was no public uproar. The House of Lords is, like the Nigerian Supreme Court, the final Court of Appeal. Neither the General Council of the Bar, the Law Society nor any lawyers criticised any of the parties or the House of Lords for admitting the petition before it was considered, given the finality of its previous decision. The result is that Pinochet has significantly expanded the framework of jurisprudential development especially in relation to the law regarding bias. This is the benefit that Nigerian law will inevitably derive when these applications are dealt with.
The manner in which the House of Lords dealt with Pinochet will, doubtless, be looked upon with seriousness by the Supreme Court. His Lordship, Aderemi, JSC observed:-
“Going by our jurisprudential stand, I know that the decision of foreign courts are no longer binding on our courts, but they remain persuasive. Since the decisions I have referred to above constitute an explanation of good law, I am persuaded by them. And I shall follow them …”
Criticism of the parties about the manner in which they have dealt with this situation is, in many respects, narrow and illogical. The fact that the criticism has been put forward by the Bar Association, this being the body that represents lawyers in the country, raises even more anxiety. The anxiety that is being generated by the protestations is, inversely, giving vent to a growing belief that the applications are not entirely without merit. Why there should be a concerted effort – like the reaction of the NBA – to stymie the airing of these applications somewhat suggests that those who have put them together may have unearthed a combination of logic and argument that may validate further scrutiny of the nature undertaken by the Law Lords in Pinochet.
The criticism of the role and involvement of INEC is undeserved. In the judgement that both INEC and Uba now challenge, INEC came in for some of the most scathing criticism. His Lordship, Aderemi, JSC observed that the election conducted by INEC was “a wasteful and unnecessary exercise”. His Lordship further observed that a body that has respect for the rule of law, which INEC ought to be, would have awaited the outcome of the Court proceedings before conducting an election. His Lordship, Oguntade JSC indicted INEC for seeking not only to breach the doctrine of “lis pendens” by seeking to create a state of affairs which would have the effect of rendering nurgatory any judgement by that Court but also would present the Court and the parties before it with a “fait accompli”. His Lordship, Chukwuma-Eneh JSC similarly chided INEC for proceeding unabashedly with the conduct of the election whilst litigation was still pending. In fact, His Lordship went on to observe:-
“the electoral process relating to this office should have awaited the outcome of this matter and saved everybody, if I may so put it, unnecessary embarrassment. ”
On its face, no one was more criticised by the fallout of the April 14th Governorship election in Anambra State than INEC. An application to the Court which, in more than one way would provide it with an opportunity to offer an enhanced or even different explanation about its role in the circumstances would, in all respects, be attractive to that body in circumstances that would make it irresponsible not to accept that invitation.
Both bias and the jurisdictional issues are crucial to the determination of the applications. They raise and engage quite serious if not complicated analysis which the court, in one form or another, would have to undertake. On jurisdiction, there is, at least, one dimension on the application of s.16 of the Court of Appeal Act – which the court found to be in pari materia with s.22 of the Supreme Court Act upon which it based its decision to assume jurisdiction – which offers a contrary and compelling view different from that reached by the learned judges upon which they were not addressed. There are other issues that would arise in relation to the hearing of the application. Those are matters that remain to be decided by the Supreme Court. The first direction it has given has underpinned the informed approach that the Court has and is expected to take in determining the applications. The Supreme Court will not be stampeded into reaching a conclusion on the applications that will not fully engage the merits of the case. That much is assured. What, clearly, the Supreme Court would better appreciate would be an informed involvement by the Bar Association, either by seeking leave to be joined in the proceedings or by an amicus curiae brief which will, doubtless, assist the court in having before it a reasoned contribution in a manner that will provide it with objective and qualitative assistance in determining, once and for all, questions that will, of necessity, strengthen and develop the growth of law in Nigeria.
Andrew Obinna Onyearu is a Solicitor who practices in Nigeria and the United Kingdom
