This paper critically examines language of the law and obiter dictum of the Court of Appeal of Nigeria as used on Justice Okon Abang in the highlight of DR OKEZIE VICTOR IKPEAZU V DR SAMPSON UCHECHUKWU OGAH & ORS. It discusses the legal framework in respect of the Language of the Law and Obiter Dictum, as well identifies the legal implications or otherwise of the Justices’ use of language on the trial Judge Okon Abang in particular, and the Temple of Justice in general, possible steps to be taken in future in case of re-occurrence would be suggested.
It is no longer news that the Court of Appeal, on 18th August 2016, upturned the judgment of Justice Okon Abang of the Federal High Court, Abuja, which sacked Governor Okezie Ikpeazu of Abia State from office in July same year. What is however news was the way and manner the Justices of the Appellate Court descended heavily on the judge, totally embarrassing and ridiculing him in the eye of the public for debasing justice and bringing the judiciary to grave disrepute and ridicule.
Abang had on June 27, 2016, ordered Ikpeazu to vacate his seat as Governor for allegedly falsifying tax documents. He further ordered the Independent National Electoral Commission (INEC) to issue a certificate of return to Mr. Sampson Ogah, who came second in the Peoples Democratic Party (PDP) primary election held in December 2014, but did not participate in the general election. Justice Okon Abang is controversial and definitely on a mission to enter the Guinness Book of Records as judge with record insults, from Superior Court, in this instance, the Court of Appeal. Abang craved for recognition, but not the type the Court of Appeal, has inflicted on him. To have his judgments variously described as “highly misplaced and most fraudulent”, as having “violent attitudinal disposition to rule of law”, as “violating the principles of natural justice”, as a “charade and fraud”, is not a joke. And have his superiors, with a macabre sense of humour describe him as a Father Christmas handing out “orders like Christmas gifts,” have literally walked into a hall of infamy. With such harsh words, as notorious, ill famed, opprobrious scandalous, etc that the Court of Appeal has variously dressed him with.
The use of language is important in legal proceedings but regrettably language makes the law, justice itself depends on the language of the law. It is established in our Jurisprudence that law is not an instrument of mathematical precision where one plus one equal to two. If it were to be so, our literature in English would have been poorer. The various comments made by the Court of Appeal while overruling the decision of Justice Okon Abang in DR OKEZIE VICTOR IKPEAZU V DR SAMPSON UCHECHUKWU OGAH & ORS have so much generated debates amongst scholars who are largely lawyers and politicians. While some Scholars who were mainly lawyers frowned at the use of foul languages by the Appeal Court Justices by taking his decision personal, others who were mainly in the political class observed that the Appeal Court Justices’ comments have shown the learned Judge of the Federal High Court as being unfit to continuing be a Member of the Bench who may bring the Judiciary into disrepute, thus, advocate for his sack. Leading proponent of this school of thought is the Executive Governor of Ekiti State, Mr Ayodele Fayose.
Sequel to the above exposition, this work will therefore look at the Language of the Law and Obiter Dictum, as a case law technique. The legal frame work on the issue will be considered and effects of the comments of the presiding Justices of the Court of Appeal on Justice Okon Abang in DR OKEZIE VICTOR IKPEAZU V DR SAMPSON UCHECHUKWU OGAH & ORS, as it affects the sanctity and decorum of the Judiciary will be examined.
MEANING OF OBITER DICTUM
A remark made, or opinion expressed, by a judge, in his decision upon a case, “by the way” that is, incidentally or collaterally, and not directly upon the question before him or upon a point not necessarily involved in the determination of the case, or introduce by way of illustration, or analogy or arguments.” A rule of law stated merely by way of analogy or illustration, or suggested rule upon which the decision is not finally rested.
The judicial powers of the Federation is vested in the courts established for the Federation by the Constitution and by such laws that the National Assembly may pass. The judicial powers of the state is vested in the courts established for a State by the Constitution and by such laws that the House of Assembly of the State may pass. The courts established by the Constitution for the Federation are;
- The Supreme Court of Nigeria
- The Court of Appeal
- The Federal High Court
- The High Court of the Federal Capital Territory, Abuja
- Sharia Court of Appeal of the Federal Capital Territory, Abuja
- Customary Court of Appeal of the Federal Capital Territory, Abuja
The courts specifically listed by name above shall be the only superior courts of record in Nigeria, exercising all powers therefore. For the purpose of this work, recourse would only be made to the Court of Appeal and the Federal High Court of Nigeria. There shall be a Court of Appeal which shall consist of a President and such number of Justices of the Court of Appeal and in the hearing and determination of an election petition under paragraph (a) of subsection (1) of section 239,, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal. And an appeal shall lie from the Federal High Court or a High Court of a State. However, section 249 establishes the Federal High Court. The decision of the Federal High Court is in turn bound by the judgement or precedent of Court of Appeal and Supreme Court. Hitherto, at common law, the principle on which the court bases its decision in relation to a material fact before it must be followed in similar cases by Courts below it in the hierarchy of courts.
LANGUAGE OF THE LAW AND OBITER DICTUM
Language here does not mean lingua (Latin word for ‘tongue’), but rather, the combination of words, phrases etc. for the purposes of communication. Language still remains the best invention for verbal or written communication. It is also the vehicle for conveying thoughts and reasoning. ‘Words’ on its own part has been defined as ‘the components and spare parts of language.’ The problem of Semantics or language in law and the preoccupation of lawyers with words stem from the fact that many legal disputes are due to the imperfection of language. Case law emanates from requirements of specific situations and how the court will resolves them, whence, it is imperative for lawyers to treat words as fragile as medical doctor would treat life.
Goodhart looked at obiter dictum from the point of view of the fact and says that an obiter is a conclusion based on a fact the existence of which has not been determined by the court. Where for instance, the Supreme Court of Nigeria, in order to settle the state of law in a particular field asked the counsel to address the court on the law and based on such address makes general statement about law, such statement is regarded as a superior specie of obiter dicta and are likely to be followed by the lower court though not binding. It follows that it is a tool or weapon in the hands of superior courts’ justices such as the Supreme Court and the Court of Appeal, to either commend or condemn judges and lawyers who have done pretty well or abysmal respectively, in the exercise of duties as Judicial officers. For instance, the authority of ELOBISI V ONYEONWU becomes imperative in this regard, While commenting on the paragraphing of affidavits, the Court of Appeal through the use of obiter dictum chastises the respondent’s counsel. Thus, held as follows:
I cannot end this ruling without adverting to the structure of the affidavit relied on by counsel for the respondents… It is almost a matter of scandal to his professional standing that he would file affidavits which are so fundamentally defective in content and form that they are merely useless.
In view of the above dictum of the Court of Appeal, one could reasonable infer that the appellate court is fumed at the unprofessional conduct of the respondents’ counsel in the discharge of his duties as legal practitioner. It is important to say that the appellate courts’ mind is usually displayed in their respective dictum, as a way of making the bar and the audience realize what situation it has found itself. Oputa, J.S.C., had aptly remarked:
We are final not because we are infallible; rather we are infallible because we are the final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth…. for It gladly accepts that it is far better to admit an error than to persevere in error.
In the highlight of the above, only God knows the inevitable situation the Justices of the Supreme Court found themselves to warrant such apologetic statement the learned Justice made. The learned Justice even went further to describe the act of anyone amongst the Justices in the case, who may disagree with him as “short-sighted arrogance not to accept this obvious truth…” Whence, the appellate court may said to be unconcerned with whose ox is gored in the use of language which culminated into its obiter dictum, thus, a tool of apprehension on anyone that does anything inimical to rubbish the sanctity of the Judiciary, it nevertheless, save itself not from the effect of this tool called obiter dictum.
AN INSIGHT INTO IKPEAZU V OGAH’S CASE.
Abang had on June 27, 2016, ordered Ikpeazu to vacate his seat as Governor for allegedly falsifying tax documents. He further ordered the Independent National Electoral Commission (INEC) to issue a certificate of return to Mr. Sampson Ogah, who came second in the Peoples Democratic Party (PDP) primary election held in December 2014, but did not participate in the general election. Thereafter the removed Governor Ikpeazu of Abia State appeal to the Court of Appeal of Nigeria on the ground that there is no law that tax papers must be submitted to INEC as part of the qualifications for election and that 2014 guidelines of the PDP did not stipulate that an aspirant must pay tax upon which the trial Judge Okon Abang found a tax fraud, whence, culminated into his decision.
Counsel to the Peoples’ Democratic Party (PDP) has said that there is no law that tax papers must be submitted to INEC as part of the qualifications for election and that 2014 guidelines of the PDP did not stipulate that an aspirant must pay tax. A five-man panel of the Justices of the apex court led by Justice Morenike Ogunwumiju, adjourned the matter after it heard six separate appeals that arose from verdict of the Federal High Court in Abuja which removed Ikpeazu. Meanwhile, trial Justice Okon Abang had on June 27, ordered Ikpeazu to immediately vacate the governorship seat, even as he directed the Independent National Electoral Commission, INEC, to issue fresh certificate of Return to Mr Sampson Ogah who came second in the gubernatorial primary election of the Peoples’ Democratic Party primary election it conducted in Abia State on December 8, 2014.
Justice Okon Abang said he was satisfied that Ikpeazu perjured by giving false information in the Form CF001 and documents accompanying it, which he submitted to both PDP and the INEC. Meantime, both Ikpeazu and the PDP through their respective lawyers, urged the appellate court to set aside the High Court Judgement which they said has occasioned a huge miscarriage of justice. Arguing his appeal, Ikpeazu, through his team of lawyers led by Chief Wole Olanipekun, SAN, insisted that Justice Okon Abang acted beyond his powers and misdirected himself in law. According to him, “The trial Judge erred in law when he order that the appellant vacates his office as Governor of Abia State immediately when there was no jurisdiction in the Federal High Court to remove such officer after the unsuccessful challenge of the result of the election at the Tribunal and swearing in of the appellant as the governor.”
He contended that the only power, authority and order exercisable by the trial court was to disqualify a candidate from contesting election based on section 31(6) of the Electoral Act, 2010. He said the High Court Judge got it wrong considering the fact that Ikpeazu was a public officer whose tax deduction was under Pay As You Earn, PAYE, scheme where tax deductions were from source of his monthly salary by the tax authorities who issued all the tax receipts and certificates. Ikpeazu maintained that trial Justice Okon Abang violated his right to fair hearing by embarking on judicial investigation without granting him the opportunity to address the court on the issue. He further argued that the Abia State Board of Internal Revenue Services that issued tax certificates to him had not declared the certificates forged. He further argued that trial Justice Okon Abang violates his right to fair hearing by embarking on judicial investigation without granting him the opportunity to address the court on the issue and that the Judge had no duty to investigate contents of documents that were merely dumped on the court by the plaintiff.
In a unanimous judgement, the Court of Appeal held that there was no cause of action as at 27 December, 2014, when the case was filed because the tax receipts which Justice Okon Abang relied on heavily had not been submitted to the Peoples’ Democratic Party (PDP). The court held that the plaintiff went to shop for evidence after filing the case. The court further held that Justice Okon Abang made prejudicial statements in the course of the Judgement. Thereby declared that the trial Judge was “fraudulent as it was violent” and that the Judge acted like “Father Christmas”.
The decision of the appellate court spanked the debate with respect to the dexterity of the Judge in question as a judicial officer and his retention in the Judiciary. The foremost critic amongst the critics of the learned judge is the ferocious Executive Governor of Ekiti State, Mr Ayodele Fayose who posited;
If not that because of his ability to hatched jobs for those presently holding Nigeria at jugular, how can a judge like Abang that has been adjudged severally as giving fraudulent judgements and acting like Father Chrisrmas still sit in Judegment over cases involving Nigerians?
Also, Emmanuel Ado described the trial Judge as controversial and definitely on a mission to enter the Guinness Book of Records as the most Insults, from the Supreme Court, in this instance case, the Court of Appeal. He further posited;
To have your judgments variously described as “highly misplaced and most fraudulent”, as having “violent attitudinal disposition to rule of law”, as “violating the principles of natural justice”, as a “charade and fraud”, is not a joke. And have your superiors, with a macabre sense of humour describe him as a Father Christmas handing out “orders like Christmas gifts,” have literally walked into a hall of infamy. With such harsh words, as notorious, ill famed, opprobrious scandalous, etc that the Court of Appeal has variously dressed him with, Justice Okon Abang ought to have sent in his letter of retirement.
Meanwhile, a legal practitioner, Mr Olaide Sadiq has frowned at the foul language by the Appeal Court on Justice Okon Abang over his ruling. While denouncing the foul words such as “in the comfort of his chambers”, “miscarriage of justice”, “stood the law on the head”, “somersaulted” and many more used by the appellate court opined;
The appellate court took the matter too personal against the trial judge rather than the litigants insisting that there was nothing to justify such out of order use of language by the Appeal Court… The Court of Appeal centered their arguments around the procedure adopted by the trial court but neglected the main issues. Rather they embarked on voltage of discovery, castigating the trial court at the expense of the law. What has the abuse on Abang got to do with the main issues on Appeal? Is it one of the prayers of the litigants that the trial judge should be abused? Rather than display maturity, the Appeal Court finds herself in dilemma of language, an exercise the Supreme Court will say in futility… such a reckless language is not known to our noble and well respected legal profession
CONCLUSION AND RECOMMENDATION
As earlier indicated in the preceding paragraphs, the appellate court may said to be unconcerned with whose ox is gored in the use of language which culminated into its obiter dictum, and has described as a tool of apprehension on anyone that does anything inimical to rubbish the sanctity of the Judiciary by the writer of this paper. It is further said that as much as this writer agrees with the appellate court decision, basically on the rule of adherence to precedent which is one of the strongest principles of judicial policy, and which ordinarily the writer is to swallow hook line and sinker and to apply loyally the opinion of the superior court, the writer is constraint to concede to the use of language which has been regarded as a “foul language” determining the obiter dictum of the appellate court used on the trial Justice Okon Abang. The language employed by the learned Justices of the Court is capable of disparaging the learned Judge in the heart of the public, consequentially, making the public not to believe in his Judgement as a Judge of the Federal High Court and by extension, making the people gradually losing confidence in the Judiciary as the last hope of a common man. Notwithstanding the aforesaid, the Court of Appeal has really placed the learned Judge in such a situation that his decision on parties to the suite before his court might hold no water in their minds, capable of being disrespected for they won’t hold Abang’s decision serious, hence, breeding plethora of contempt of his court judgement.
Insofar it is not yet ascertained whether or not trial Justice Okon Abang received any money as gift or gratification from parties to the suite in the said case, the Court of Appeal’s ferocious assertion with respect to Abang’s decision may said to be unjustifiable since his decision is void of any form of inducement from external factor, thus, presume to have acted in good faith until the contrary is proven. Assuming but not conceding that Justice Okon Abang erred in the cause of justice, the appellate court has the primary duty to amend, quash or supplement his decision being the raison d’eter an appellate court like the Court of Appeal was established, in this case, it was adequately done by them, and the invocation of foul language wasn’t needed in this case, at least, two heads are far better than one, which invariably means that what a three-man or five-man panel as the case may be would see, reason, or think, one person sitting as a judge may not do. The least thing the Justices of the Court of Appeal could have done is to couch their words in a euphonic manner, of which only the party to whom the statements or obiter dictum was directed to, and most probable, litterateurs would understand the denotative meaning of the statements said and would have gone a long way not to lessen the faith, respect, humility, honour, and sanctity of the legal profession which the public who are largely mobocrats are being compelled to observe by virtue of the decorum of this noble profession. Essentially, it is not about Justice Abang, but the institution of Justice, at least, it is advisable that the appellate court justices ought not have washed the dirty linen of one of the judicial officers in Nigeria in the public but rather make use of any internal mechanism to call the Judge in question to order, for their public outrage on Abang has done, and will continue to do more harm on the temple of Justice than good, if not curtailed. It is thereby concluded that legal practitioners are advised to be mindful of the words invented in the course of duty, and most importantly, appellate court justices should not see the use of obiter dictum as way of hurling insults on Judges in the lower cadre, but rather live up to the task of an umpire who is only interested in the settlements of disputes amongst parties to a suit.
Qudus Adebola Alalafia
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(2016) LPELR-40843 (CA)
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 JALO TSAMIYA V BAUCHI NATIVE AUTHORITY 1957 NRNLR p. 73
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