The Evils Of Technical Justice
Ebun-Olu Adegboruwa, SAN
It was supposed to be a smooth ride into and out of the court, for the plaintiffs, but they got more than what they bargained for, from the judiciary, after so many years of travelling round the hierarchy of the courts, to get justice. This has become the lot of litigants and their lawyers, who daily contend with the frustrating factors hindering the due and effective administration of justice in Nigeria.
Let me share with you the intriguing facts of the case of Boniface Ebere Okezie & 3 Ors. v. Central Bank of Nigeria & 5 Ors. (2020) 15 NWLR (Pt.1747) 181. So it started on one fateful day on 14th August, 2009, when Mallam Lamido Sanusi, then Governor of Central Bank of Nigeria, CBN, issued an order, removing all the executive directors of Union Bank of Nigeria, UBN, and thereafter appointed Mrs. Funke Osibodu and others, to replace them. About N120 billion was then injected into the UBN, on the grounds that it was weak, undercapitalized and/or insolvent.
These actions were well publicized, with a threat to turn UBN over to the Nigerian Deposit Insurance Corporation or sell it outright, to foreign investors. As a result of the declared crisis in UBN, its erstwhile directors who had been removed from office were handed over to the Economic and Financial Crimes Commission, for investigation.
Aggrieved with the actions of the CBN governor, some of the shareholders of UBN filed an action at the Federal High Court, Lagos, under section 303 of the Companies and Allied Matters Act, seeking leave of court to challenge the actions of the CBN governor, on behalf of UBN, by derivative action. In the originating summons, the plaintiffs did not raise any questions for answer, but set out their claims in declarations, injunctive reliefs and damages. In response to the originating summons, the defendants filed a notice of preliminary objection, challenging the competence of the suit and the jurisdiction of the court to hear and determine the action of the plaintiffs.
The preliminary objection was heard and upheld by the trial court on the ground that the originating summons did not contain questions for determination. The appeal to the Court of Appeal was dismissed as lacking in merit, whereupon the plaintiffs further appealed to the Supreme Court. The apex court wasted no time in chastising the trial court and the Court of Appeal, for clinging to technicality to rob the plaintiffs of justice.
The court held as follows: “There is need to keep the focus on the substantiality of justice and so each of these forms is valid as an originating summons for the determination of any question of right or of construction under an enactment.
“Justice does not reside in the form of the processes of the court. Where there are sufficient provisions in the rules of the court to sustain an action, the rules of natural justice demand that parties should be heard with a view to resolving their dispute once and for all. It is in the interest of justice that parties are not shut out prematurely from being heard in accordance with the laid down procedures in the court’s rules.”
The danger that society and the justice sector face, in the adherence to strict technical rules, is best demonstrated by a thorough analysis of the tortuous journey and checkered history of this case. The case commenced in 2009, at the Federal High Court and the final judgment of the Supreme Court was delivered 7th February, 2020, spanning a long period of about eleven painful years of several court appearances, travelling and financial expenses.
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At the time of the judgment of the Supreme Court, the plaintiffs could no longer get justice from the courts, as the interim board of Union Bank that was being challenged had served out its tenure and new boards had taken over almost in multiple tenures.
This is the lot of most litigants such that even this case should be considered as having moved fast, if we take into cognizance the facts of other cases commenced in court at the same time. The Supreme Court did not spare the two courts below: “There was no basis for the conclusion of the two courts below that the originating summons of the appellants was bad and must be struck out for not stating questions for determination.
For effect, it was certain that the two courts below went the wrong way in reaching their conclusion and a miscarriage of justice ensued in the erroneous application of the procedural law or rules, hence the necessity for the Supreme Court’s intervention and to come against concurrent findings of fact of two courts.”Happily, the apex court took out time to define the role of the judiciary, in very clear terms: “The paramount duty of courts is to do substantial justice and not cling to technicalities that will defeat the ends of justice. It is more in the interest of justice that parties are afforded reasonable opportunity for their rights to be investigated and determined on merit rather than that parties be shut out prematurely from being heard on the grounds of non-substantial compliance with rules of court. It is immaterial that there are technicalities arising from statutory provisions, or technicalities inherent in rules of court.
So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified.”
Generally speaking, the judiciary is established under section 6 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
The Constitution proceeds to state the function of the judiciary as to “extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any questions as to the civil rights and obligations of that person.”
In reality therefore, the judicial powers as conferred upon the courts relate to adjudication and determination of disputes. This power is traceable to the period of creation, when the first man (Adam) was put to trial in the Garden of Eden. God drafted the charges, served them on him and took his defences thereto and thereafter judgment was passed.
However, judicial power was properly codified when the father-in-law of Moses visited him and advised him to set up several courts for the resolution of all contentious issues, depending on their magnitude. Man has followed this pattern ever since, leading to the trial, condemnation and crucifixion of Jesus by the Jews.
The judiciary became more entrenched as part of the foundation of the creation of Nigeria, due to the Sir Henry Willink Commission of Inquiry report, detailing the means of addressing the fears expressed by the minority ethnic groups, post-independence.
Assuredly, there will always be one dispute or another, in any human endeavor or existence. With their over-bloated population and size, the majority ethnic groups could always boast of electoral victory to form the cabinet and also the majority in the parliament, any day, through which they would continue to dominate the minority groups. It was then resolved to establish a strong judicial system, capable of intervening in any dispute between persons and persons, persons and governments or indeed any other authority.
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This partly accounts for the reason why the judiciary was established as an independent and autonomous arm of government, to be strong enough to look anyone in the eye, to be strong enough to damn oppressive policies and strike down all manner of injustice. This worked well for some time, until the military emerged with absolute powers and decrees, through which the powers of the courts were circumscribed and at times suspended, outright.
But even under the military, the judiciary remained the only arm of government that could not be dissolved totally, unlike the parliament and the executive. No government has been so brutish and damning, as to sack the courts outright; we have never had it so bad and we pray not to ever have such malady, in our time.
The cases of self-imposed timidity, as experienced in some courts across the land, are to say the least, most unfortunate. My Lords must be encouraged to stand tall and show courage, in the face of intimidation and mindless blackmail by the powers that be. This is not new at all, given that the executive arm of government is always at war with the judiciary, the former being always at the receiving end of court decisions.
Impunity being always at the door step of governors, commissioners, ministers, government ministries, parastatals and agencies, it is not strange at all that they are most often the culprits.
The judiciary must save itself from extinction and historical irrelevance; it must assert itself as the last hope of the common man, by ensuring that it digs very deep into each case presented before the court in order to give justice to those who deserve it. The incapacity of the court to do justice to the real issues before it goes back to the society itself, as litigants are then forced to embrace self-help, has made law enforcement agencies become dispute resolution merchants and thus arbitrariness has set in.
The solution to this is to merge all objections together with the hearing of the substantive suit and to incorporate all interlocutory appeals into the main case, such that the determination of the court can be made known on both in a single judgment, rather than pursue common issues of amendment or injunction up to the Supreme Court whilst the main case is guillotined thereby, on the altar of technicality.
We cannot afford in our clime, to exhume the corpse of Blackstone and cling to the stone-age practice of forms rather than the substance. We cannot continue to run a court system that delivers empty papers to the people as judgment, the contents of which do not birth any form of justice at all.
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NLC Orders Workers To Shut CBN Offices Nationwide Over Naira Scarcity
Worried about the continued scarcity of naira, the Nigeria Labour Congress (NLC) has officially declared a nationwide . The national president of the union, Joe Ajaero, gave the directive during a media briefing in Abuja.
Ajaero also directed that affiliate unions constituting the NLC should be on standby for picketing exercises across all branches of the Central Bank of Nigeria nationwide.
The NLC earlier issued a seven-day ultimatum to the Federal Government to end the petrol and cash scarcity being experienced in the country.
Ajaero told journalists on Wednesday that the industrial action became the last resort of the NLC following the expiration of the ultimatum.
He said the decision to picket the CBN branches became necessary as the federal government and the CBN had failed to show any commitment to addressing the situation.
Ajaero lamented that despite the Supreme Court order that the old N200, N500 and N1000 notes remain legal tender until December 31, 2023, the situation kept getting worse.
He said workers could not access cash to pay fares to work.
He also criticised the pricing irregularities in the petroleum sector.
“Last week, we gave an ultimatum for the review of the cash crunch bedevilling the country, but we have discovered to our dismay that as at this moment not much effort has been made to ameliorate the situation. Government is still foot-dragging on these issues we raised,” Ajaero said.
“Based on this, we met again this morning to review our position and resolved that by Wednesday next week all CBN branches will be picketed. Workers are directed to stay at home too because people cannot eat, workers can no longer go to the office, we have been pushed to the wall.
“We have decided to take our destiny in our hands, we have mobilised our workers on this exercise.”
The NLC has no fewer than 43 affiliate unions which include, but not limited to, the Academic Staff Union of Universities, the Nigeria Union of Pensioners, and the National Union of Road Transport Workers.
BREAKING: Alex Otti Of Labour Party Emerges Abia Governor-elect
Alex Otti of the Labour Party has emerged the winner of Abia State governorship election.
This followed the eventual declaration, on Wednesday, of the results of the controversial Obingwa Local Government Area results.
With the conclusion of the collation of the outstanding results of the election, the Peoples Democratic Party scored 9,962 votes while the Labour Party, 3,776 votes in the LGA.
Consequently, the LP has won in 10 LGAs, the PDP in six LGAs, and the Young Peoples Party in one LGA.
The governorship candidate of the Labour Party in Abia State, Chief Alex Otti, was, consequently declared the winner of the 2023 governorship election in Abia State.
Otti polled a total of 175,466 to defeat his closest rival and candidate of the PDP who scored 88,526.
The Returning Officer, Prof. Nnenna Oti, declared the LP candidate the winner at the headquarters of the Independent National Electoral Commission in Umuahia, the state capital, Wednesday afternoon after completing the suspended collation of results.
CAN, Churches Defeat Govt Over CAMA Act
It was victory for the Christian Association of Nigeria (CAN) and churches under it as a Federal High Court, Abuja, on Tuesday, stopped the Corporate Affairs Commission (CAC) from suspending or appointing their trustees.
Justice Inyang Ekwo, in a judgment, held that the provisions of Sections 17 (1), 839 (1) and (7) (a), 842 (1) and (2), 851 and 854 of the Companies and Allied Matters Act (CAMA), 2020 and Regulations 28, 29 and 30 of the Companies Regulations (CR), 2021 were not applicable to CAN and the churches, including mosques, as a religious body.
The News Agency of Nigeria (NAN) reports that the Registered Trustees of CAN, in the originating summons marked: FHC/ABJ/CS/84/2022 field by Joe Gadzama, SAN, had sued the CAC and the Minister of Industry, Trade and Investment as 1st and 2nd defendants respectively.
The plaintiff, in the suit, had posed five questions for determination.
CAN had asked the court to determine that whether Section 839, Subsections (1), (7) (a) and (10) of the CAMA, 2020 and regulations 28 – 30 of the CR, 2021 are inconsistent with Sections 4 (8), 6 (6) (b) and 40 of the 1999 Constitution (as amended) which guarantees the its right to freedom of association and the right to seek redress in court, among others.
It, therefore, sought 13 reliefs which include a declaration that Section 839 (1), (7) (a) and (10) of the CAMA and Sections 28 – 30 of the CR are inconsistent with |Section 40 of the 1999 Constitution, and thus unconstitutional, null and void.
“An order striking down Sections 839(1), (7) (a) and (10), 842(1) and (2), 843, 851 and 854 of the CAMA for being unconstitutional.
“A declaration that Section 17(2) (a) and (d) of the CAMA demand an impossible and impracticable action; thus, void and for being impracticable and unknown to Law.”
CAN also prayed for an order of perpetual injunction restraining and barring the defendants from taking any step to give effect to the provisions of Sections 17(2) (a) and (d), 839(1), 842(1) and (2), 842(1) and (2), 842, 843, 851 and 854 of the CAMA against it as mentioned in Article 4 of its constitution, to prevent further contravention of the provisions of Sections 4(8), 6(6)(b), 251(1)(e) and 251(3) of the 1999 Constitution.
It argued if CAC was allowed to suspend its trustees and appoint interim managers to manage its affairs, it would be usurping its powers under the constitution and the powers of the standing committee and the plenary session which would not be in line with the constitution.
Delivering the judgment, Justice Ekwo said that the CAC did not controvert the averment of CAN that it was constituted by the churches.
“It is settled law that averments without contradicting evidence or averments are deemed admitted.
“There is a need at this point to define what a church is in order to see how applicable the provisions of the CAMA 2020 can be applicable to it,” he said.
Citing a previous case, the judge said “a church in its true definition is the body of Christ. One person cannot constitute the body of Christ; it connotes a congregation, an assembly of people. An individual cannot own a church. A church property must be the collective responsibility of all the members.”
He said the summary of the above was that “the church is an ecclesiastical being.
“Each church is characterised by its distinct dogma or creed and same for each congregation and denomination that constitute the church.
“It is on this ground that it is impossible for one church to be administered by another church and the church being what it is for the soul of man, the doctrinal distinctness and difference must be respected by the authorities within and without.
“This being so, it is then impracticable for the church or a denomination thereof to be administered by secular arrangement such as interim manager or managers stated in
Section 839 of the CAMA 2020 or any other arrangement put in place by the CAMA which does not take into account the doctrinal composition of the church.
“It is also my opinion that to suspend the trustees and appoint an interim manager or managers to manage the affairs of the church will conflict with the sacerdotal order of its divine administration and desecrate same.”
Justice Ekwo, who observed that the Minister of Trade (2nd defendant) neither filed any application nor represented in court despite being served by the plaintiff, held that the effect of the failure of a defendant to file pleadings is that the assertions of the claimant stands unchallenged and are deemed admitted and established.
According to him, therefore, the case of the plaintiff succeeds on the merit.
The judge, consequently, made a seven declarations, which include a declaration that Section 839 (1), (7) (a) and (10) of the CAMA 2020 and Regulations 28, 29 and 30 of the CR , 2021 are not applicable to religious organisation as CAN and the churches as they violated the right to worship guaranteed by Section 40 of the 1999 Constitution (as amended).
He also made an order of perpetual Injunction, “restraining the defendants from taking any step to give effect to or implementing and/or continuing with any act to implement the provisions of Sections 839 (1), 842 (1) and (2), 842, 843, 851 and 854 of the CAMA 2020.
Justice Ekwo, however, did not make the generic order striking down the sections of the CAMA 2020 as prayed by the plaintiff.
He said such an order would affect other bodies and organisations registered under Part F of the Act.
“These provisions are applicable in respect of the administration, supervision and regulation of other bodies like company, limited liability partnership, business name or incorporated trustee registered for other purposes stated in Section 823 (1) of the CAMA 2020.
“The court is also unable to strike down the provision of Section 17 (2) (a) and (d) of the CAMA 2020 which provides for mandatory pre-action notice to the 1st defendant, as prayed, as the practicability of compliance with such provision depends on the circumstance of each case thereby affected,” he said.
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