No nation has a perfect judiciary – Agabi

• As Supreme Court honours Niki Tobi

Four past Chief Justices of Nigeria, past justices of the Supreme Court, former and serving justices of the Court of Appeal, heads of courts and other notable personalities last Monday paid tribute to the late Hon. Justice Niki Tobi at a special court session held in his honour at the Supreme Court in Abuja. This is even as an erstwhile Attorney General of the Federation and Minister of Justice, Chief Kanu Agabi (SAN) amidst the recent controversies bedeveling the judiciary in Nigeria insists that any country which ridicules its judiciary plans to fail. LILLIAN OKENWA reports.

“The one who made him judge over us now sits in in judgment over him. The titles he held in our midst are now of no account. He stands before the one who is able to behold the spirit in all its na­kedness…” That was part of the opening statement of a former Attorney Gen­eral of the Federation and Minister of Justice, Chief Kanu Agabi (SAN) who paid tribute to the late Hon. Justice Niki Tobi (JSC) on behalf of the Body of Se­nior Advocates’ Chief Richard Akinjide (SAN).

Describing the late jurist as a man of high character who lived without fear, Agabi noted with a tinge of regret that “no more shall that courageous voice… be heard in our courts.”

But it was also a day of encourage­ment for the judiciary and counsel for the other arms of government as Chief Agabi told the Acting Chief Justice of Nigeria (CJN), Hon. Justice Walter S.N. Onnoghen and other jurists not to be intimidated by the current travails of the judiciary.

Stressing that no nation has a perfect judiciary the former Justice Minister pointed out that Nigerian judges are not inferior to judges of other nations.

“Our judges are the equals of the judg­es of other nations. That is not to say that they are perfect. No nation has a perfect judiciary. It is to our judiciary that we owe the continued survival of the nation. And so our judges must not lose confi­dence in themselves. Nothing that has happened or is happening should cause the judiciary to lose confidence in itself.

“The vast majority of our judges are intelligent, principled, patriotic and just. I can say with confidence that in many respects they surpass the judges of other nations. The few who fail to meet our standards provide the proof that it is a human institution…”

Chief Agabi further asserted that at­tention may be drawn to the weakness

of the judiciary but that no one is al­lowed to humiliate or disgrace her. He added that the intensity of our gratitude to the judiciary should in no way be di­minished by the mistakes made by some judges and magistrates.

According to the former Minister of Justice, “we must acknowledge that our judges are not angels from heaven. “If ever it should become necessary to bring our judges from heaven we would have to bring our legislators and members of the executive from there as well. Our judges are human beings responding as other human beings do to the conditions around them. It is often the case that when we suspect them it is because we are ourselves unworthy of being trusted.”

He was of the view that: “If mistakes have been made we must make allow­ance for their correction. The constitu­tion vests power in the judiciary to cor­rect itself. The judiciary is the only arm of government that, within limits, can expand its powers or correct itself when it goes wrong. In matters of discipline, the judiciary cannot base her decisions on investigations that that are nor not ordered by her.

“The powers conferred by the Consti­tution on the judiciary are those pow­ers that every young democracy must confer upon the judicial arm if they are to withstand or survive the assaults of the political class. And whether our de­mocracy will mature and consolidate depends to a large extent on how these powers are exercised by our judges. The framers of our Constitution were con­scious of the fact that there would be a struggle for power between the various arms of government. The least equipped for that struggle is the judicial arm.

“…the contest has taken the form of intimidating the judges into fearing to exercise the powers vested in them. Had our trial judges been more forthcoming,, had they been more decisive, had they been more determined, courageous and fearless, they would not today seem so helpless.

“If a feeling of helplessness is going to be foisted on any of the arms of govern­ment it certainly should not be the judi­ciary. That arm of the government into which custody and interpretation of the Constitution has been entrusted should suffer no lack of confidence… The judg­ments of our courts should encourage the nation to look inwards and to find solutions from within. Only by so doing can the judiciary be that viable instru­ment of social change which it was in­tended to be…”

Speaking earlier at the event, the Act­ing CJN who also extolled the late Justice Niki Tobi said the nation is grateful for his contributions to the development of law on our shores and beyond.

Listing Tobi’s contributions, President of the Nigerian Bar Association (NBA), Mr. Abubakar B. Mahmoud (SAN) be­gan with Mojekwu v. Mojekwu (1997) 7NWLR (pt. 512) page 283 where his Lordship held that the ‘Oli-ekpe’ custom of Nnewi in Anambra State under which only male children inherit their father’s property is unconstitutional.

Mahmoud observed that in Inakoju v. Adeleke (2007) 4NWLR (pt.1025) page 423 Tobi redefined the jurisprudence around impeachments by the legisla­ture in Nigeria by stating thus: “A leg­islature is not a secret organization or a secret cult or fraternity where things are done in utmost secrecy in the recess of a hotel. On the contrary, a legislature is public institution, built mostly on pub­lic property to the glare and visibility of the public. As a democratic institution operating in a democracy, the actions and inaction of a House of Assembly are subject to public judgment and public opinion… It is not a lawful or legitimate exercise of the Constitutional function in Section 188 for a House of Assembly to remove a Governor or Deputy Gov­ernor to achieve a political purpose or one of organised vendetta clearly outside the gross misconduct under the section. Section 188 cannot be invoked merely because the House does not like the face or look of the Governor…”

In Sunday Nidid v. The State S.C. 128/2005 his lordship averred: “It is trite law that contradictions can only be of use to an accused person if they are material or substantial. In other words, contradictions can only be of use to an accused person if they affect the live is­sues in the matter. Contradictions which are merely peripheral or not affecting the substance of the case will not exculpate an accused from criminal responsibility. In the circumstances, where the report of the crime was made is not relevant to the issue of robbery. So too when appel­lant made the statement to PW4. And so the contradictions cannot be of help to the appellant. They all oook to me like making a storm out of a tea cup.”

Known for timeless speeches, Tobi in his speech as Chairman at the pre­sentation of the report of the Constitu­tional Debate Coordinating Committee (CDCC) to the then Head of State, Gen. Abdulsalami Abubakar, expressed con­cern over Nigeria’s multicoloured consti­tutional history.

“Nigeria is one country known to me, and probably to world legal history, where the constitution, the highest law of the land, the fons et erigo of any legal system, changes like the weather clock in climatology. And this is sad, very sad indeed…”

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