By
August 2003
At 86 years old and 57 years as a lawyer, I speak with authority on legal and political matters. My two critics on the matter of filling a Nolle prosequi on Bola Ige matter are young people who are under our constitution entitled to freedom of speech. I am here referring to the articles by Mrs. Eriye Onagoruwa Still on Bola Ige, and that of Jide Oyewusi also in The Guardian of July 29. They should however note the adage and/or aphorism "That there is no substitute for experience" supported by the Holy Bible in Job 12 v12 "with the ancient is wisdom and length of days understanding".
Lord Hailsham of Marylebone in "Guidance for magistrates on cases" said: "We, who have taken the Judicial oath cannot choose what laws we enforce or what acts we allow to go unpunished by reference to our private standards or values. Cases are usually... and the majority of day-to-day decisions of the judge go unnoticed. What is required is right mere dictionary interpretation otherwise known as literal interpretation. There will be justice and no eyelid is raised. But life itself is not, has never been and will never be one of passivity. When the civil liberty of the individual is affected, especially where it affects "conflict" with the state or government agency as in this case, where an Attorney-General of the Federation and Minister of Justice, Chief Bola Ige S.A.N. was murdered in cold blood in his family house; sensation does occur.
It may be the luck of some judges never to be beset by any of such cases. This case is not only sensational; the judges themselves have made sensation out of it, by the manner of their rulings; by the interpretations they permitted or imported or by the very justice of the case. Even their literal interpretations have turned it to be sensational. So the mere literal interpretation cannot suffice. Benjamin C Cardozo when he found himself in such a situation (in The Nature of the Judicial Process, p.10) said: "What is it that I do when I decide a case? To what sources of information do I approach for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom; by some consideration of the social welfare, by my own or the common standards of Justice and morals".
Bello, CJN in Bello v Government of Oyo State (1986) 5NWLR 528: "The English Law, which in its earlier stages began with but an imperfect line of demarcation between Torts and breaches of contract presents us with no scientific analysis of the degree to which the intent to harm or on the Language of the civil law" Animius Vicino nocendi" may enter into or affect the conception of a personal wrong. Per Eso, J.S.C. in Ibrahim v. State (1986) INWLR (PT.18) 650 at 657-658:- "It is plain to me that the Attorney-General, who as this court had said in the State v S.O. Ilori (1983) S.C.N.L.R 94. to be Law and master unto himself and against whom the only sanction where he abuses his almost unfettered discretion is the reaction of his appointor or adverse public opinion which may force him to resign has unfettered power to delegate his powers to: (a) Institute and undertake criminal proceedings, (b) Take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) Discontinue at any stage before judgement is delivered any such criminal proceeding instituted or undertaken by him or any other authority or person.
In this case, there is no direction from the office of the Attorney-General, that the application from the Ige's family to discontinue with the prosecution was granted, as the Prosecutor" Chief Debo Akande (SAN)ñ who appeared for the Government continued in later days to call evidence. It is well established that the Attorney-General can delegate its power of prosecution to a private legal practitioner to conduct prosecution on its behalf. See: Compt. N.P.S. v Adekanye (2002) 15NWLRA (PT.790) 362.
It is now trite that in all criminal cases, without exception, the prosecutions have the heavy responsibility to prove the offence preferred against the accused beyond reasonable doubt. See Okpulor v State (1990) 7NWLRT PT. (64) 581 at P. 593 and Seneviraine v R (1936) 3 ALLER 36. Unless where the Law prescribes otherwise, there can be conviction based on the evidence of a sole witness. Whether, therefore, the prosecution will call one, two or more witnesses in proof of their case, or even the choice to make between witnesses, is a matter of strategy and the decision in respect thereof is entirely at the discretion of the prosecutor. No doubt some witnesses are more material than others. Yet the Law, in my view does not require the prosecution to call every eyewitness to the offence to testify nor will the situation be different even where some of the witnesses may be described or identified as material witnesses. Indeed, it is not good practice to field numerous witnesses where the prosecution could with a handful of witnesses, have discouraged the burden of proof required to establish the guilt of the accused.
So it follows that the prosecution in order to secure conviction must obviously call material witnesses in proof of their case and it is immaterial that the testimony of such witness is favourable to or against the prosecution. It will be invidious however to insist that the prosecution most field every witness connected with the case. Such general approach heaps on the prosecution the performance of the functions both of prosecution and defence. See: R v Koree 7WACA 175 at 177; R v Essien 4 WACA 112. When Justice Ige withdrew from the case, it was assigned to Justice Moshood Abass. Justice Moshood Abass has returned the file to the State Chief Judge for reassignment to another Judge citing pressure and threat from many quarters as reason for his action and gave no names of those who threatened him making three Judges sitting on the same case.
In holding the scale or rather the balance between parties to a dispute in our adversarial contest, which we have adopted under the common Law, the Judge as the impartial arbiter is certainly not a mechanic. He tends to deep thinking and resolving a contest between the two adversaries. He may wish to bring out what appears to be obscure. In other words, he is not expected to be a dummy, recording evidence without uttering a word. What is wrong and what is unacceptable in an adversarial contest, is for the judge, who shall remain an impartial referee throughout, an umpire not only to be respected but be trusted in arriving at a decision which necessarily must hurt one party, not to jump into the arena, take sides with one of the contestants. For this strikes dismay to onlookers. It is a drama that draws justice on its administration.
Care should be taken by the Government always not to sacrifice justice on the alter of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on the merit. In this case, let me quote part of the passages from his record :- "Following the application, I invited the Counsel to address me on whether I was bound to continue to grant bail by virtue of the fact that my learned brother granted bail to the accused person. Counsel then sought and obtained adjournment till today (Wednesday) to address me on the issue. Since I made the order of remand of the accused persons last Thursday and up till this morning, I have been under pressure and threat from many quarters urging me to arrive at a particular decision even before I listen to address of counsel.
"I am however, worried about the untold pressure coming as it were from unexpected quarters. The situation I have found myself in as a result of the above stated facts is such that I cannot with all confidence and every sense of responsibility as a Judge continue with adjudication in this matter without launching serious assault on the 120-word oath of office which I took as a judicial officer. To continue will also be a breach of the solemn pledge I made when I became a judge (i.e) to administer justice without fear or favour and without ill will or affection. "In view of the foregoing, I hereby remit this case file to the Chief Judge for re-assignment to another Judge". So, the learned judge did not allow the learned Counsel for both sides to address him on the fate of the accused.
The error in this case vitiates the proceedings, as he denied the accused, the opportunity of letting their case and application commitant with it; for bail. He placed the accused in a jeopardy; which is an abuse of judicial process -see: EJEKA v State. (2003) 7NWLR (PT.819) 408 S.C.; Abacha v State (2002) 11NWLR (PT.779) 437, Adava v State (2003) 5NWLR (PT.814) 619, OHWOUORIRE v F.R.N. (2003) 2NWLR (PT.803) 176; AFRO-Cont. v Co-op. Ass of Prof. Inc. (2003) 5NWLR (PT.813) 3003; Saleh v Mongono (2003) 1NWLR (PT 801) 221.
By way of observation, I noticed that all two election petition cases arising from the last election that went to the Supreme Court; not only did the Chief Justice of Nigeria preside over them; he also wrote the lead judgements, and a full court heard all the petitions. I wonder, why the state Chief Judge did not take on cases of injunction" interim or substantive relating to the elections in the light of previous outcry by the Judiciary; the Bar and Public. The only option now is for the Attorney-General to file a Nolle Prosequi, if and when, they can find credible evidence which they think can lead to conviction, they could revive the case. Otherwise the accused would continue to languish in jail for nothing.
I have been a personal victim of being kept in custody having been falsely accused of financing Isaac Boro who declared himself the President of the Republic of Yenagoa in 1966. The allegation was untrue. During my five months in prison detention the police never contacted me for any statement, then there was the second coup of June 29, 1966, the prison warders at Ikoyi and their Inspectors ran away after hearing that the prison inspector at Agodi, Ibadan prison had been shot by the army and the political detainees were later set free by the army. Then the detainees left the prison and Government simultaneously announced our release over the Radio as a cover up. Those who have not been locked up in prison rightly or wrongly by the police did not know what it is to be in police custody.
August 2003