In my many years at the bar, Justice Sampson Uwaifo remains one of the jurists whose dicta I willingly follow with unquestioned obedience, and he has never disappointed me. At his valedictory upon retirement from the Supreme Court some years back, he had admonished the legal community to find a solution to problems associated with common knowledge.
In throwing this challenge, His Lordship was not unmindful of associated risks. He knew more than most of us that the law has long left the realm of the arts and humanities for the sciences. Yet science, art or religion, it is acknowledged that some information, true in several respects, reside both in public and judicial domains, yet the law stairs helplessly and naively at them’’
This was the plank upon which I, on the back page of Thisday Newspaper published Friday, March 11, 2011, commented on Yusuf Olaniyonu’s ‘NBA’s Misplaced Priorities’ published in the same column of Friday, February 25, 2011. Let me crave the indulgence of the reader to use this same plank to attempt an opinion on the recent Supreme Court judgement on Uzodinma v. Ihedioha. My opinion will be limited to the foregoing subject matter as I feel sufficiently convinced that many legal analysts have done justice to the substance of this case.
Justice Uwaifo in throwing his challenge on common knowledge knew that a day like this will come. He knew that the changing texture and the dynamic of varying intellectual content in the apex court from which he deftly espoused his legal wizardry in his time could predispose the court to miscarry justice over time. What his sagery and predictive compass did not anticipate is the day the Supreme Court will abandon the pursuit of the truth in a wholesale embrace of technical process leading to this awkward pass in which the law has indeed been consecrated as an ass.
If one understood Justice Uwaifo well, he mused over the possibility of grafting common knowledge-that which everyone knows-into the corpus of our jurisprudence. The how was what he did not know, hence the challenge. His frustration can be gleaned from the fact that he would have suffered years at appellate courts navigating technicalities even where the justice of many cases staired him in the face. He was then perpetually constrained, as a progressive jurist, to deep into the inner recesses of his fecund mind to craft those judgements which still resonate with shimmering acuity and ageless grandeur till date.
The knowledge that is common in Nigeria today is that the votes contained in the 288 polling booths the Supreme Court admitted in Uzodinma v. Ihedioha are spurious. That was why INEC would have nothing to do with them. The opinion of lawyers and Nigerians is that the trap Uzodinma set for INEC which the body deftly evaded was what the Supreme Court fell into hopelessly.
In this regard, the Supreme Court must ponder three things: 1. Rumours that upon admitting results of the 288 booths, the results substantially exceeded accredited voters. 2. The clear unlikelihood of Uzodinma scoring in excess of 96% of the votes from the 288 booths as against less than 3% by Ihedioha, with other parties awarded nothing. 3. And the fact that APC performed woefully in the State Assembly elections. The import of these three posers is that no intelligible trend of sympathetic sequence that can appeal to logic justifies the results. If the foregoing assertion represents the state of affairs, it is the lone and unenviable lot- yet quietly dignifying duty- of the Supreme Court to return to the path of rectitude and accept that they erred. The Supreme Court is not a cult. It is a court like any other superior courts of record, charged with the responsibility to dispense equity and justice to Nigerians. The Imo mess is embarrassing because no court, trial, appellate, supreme or of whatever nomenclature allows itself to be used as an engine of fraud, or a lever to thwart the will of the people.
It must be understood that the Supreme Court functions within a set of rules. But they have the elasticity to reset their rules in so far as their objective is the pursuit of justice. This elasticity is a radical instrument at the hands of the court because it imbues them with the power to navigate devious impediments foisted by technical obstacles. It also weaponises them against legal fixed odds assembled by advocates and enables them penetrate concrete walls of legalese to extricate justice for deserving citizens. There lies the power of the Supreme Court.
Whereas the law must not follow public opinion, it must not be completely divorced from it because it was made for man, and not the other way round. Any law that consistently ignores the will of the people is headed for the trash can of history, or may even encounter a worse fate-the ignominy of being resisted and disobeyed. The Supreme Court must then be prepared to recognise that the moment of change is hear with us. They must break out of their cyst of conservative aloofness to render Justice in the Imo case. Their mantra must not be that it is right because we did it. It should rather be that we did it because it is right. Lord Denning, that law lord whose pronouncements permanently altered the trajectory of common law opined that ‘’ if we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both’.’ God forbid that this becomes the lot of both our law and our Supreme Court.
Practical Considerations to Negotiate an Enforceable Joint Operating Agreement in Civil Law Jurisdictions (Netherlands: Kluwer Law International, 2020) By Professor Damilola S. Olawuyi, LL. B (1st Class), BL (1st Class), LL.M (Calgary), LL.M (Harvard), DPhil (Oxford), Professor of Law and Deputy Vice-Chancellor, Afe Babalola University, Ado Ekiti, Nigeria, www.damilolaolawuyi.com. & Professor Eduardo G. Pereira, LL. B (Brazil), LL.M (Aberdeen), PhD (Aberdeen),www.eduardogpereira.com