Legality of S’Court’s Verdict : Ex-Lagos Chief Judge faults Nwabueze, says judgment on Atiku’s appeal not a nullity

One-time Chief Judge of Lagos State, Justice Samuel Omotunde Ilori at the weekend dismissed as laughable the position by foremost Senior Advocate of Nigeria (SAN) and renowned constitutional lawyer, Prof Ben Nwabueze (SAN) to the effect that last Wednesday’s judgment of the Supreme Court which validated President Muhammadu Buhari’s victory in the February 23, 2019 presidential election was strange to law and therefore amounted to a nullity.

Justice Ilori who spoke exclusively with our reporter said the respected lawyer spoke as a lawyer who may not be privy to how judges discharge their litigative duties.

Prof Nwabueze (SAN) had, after the judgment in the case, issued ä statement to dismiss the Supreme Court verdict in th Ati,u’s appeal as a nullity on the purported account that the presidential candidate of the Peoples Democratic Party (PDP) was denied fair hearing.

Nwabueze, in the statement, questioned the claim by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, that the panel of justices “examined all the briefs of argument and the exhibits for over two weeks and we have all agreed that there is no merit in this appeal”.

According to him, the decision dismissing the appeal as lacking merits was not taken at the sitting of the Supreme Court on October 30.

Nwabueze said: “The question arising is as to whom the word ‘we’ in the CJN’s statement refers. Can the ‘we’ be a reference to the Supreme Court?

“Can the Supreme Court function as regards the hearing of the appeal before the seven man panel to hear the appeal was appointed and the names of the members announced to the public? When exactly was the appointment of members made?”

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The SAN said the manner the panel was appointed did not accord with Section 36 of the 1999 Constitution, which provides for fair hearing.

The statement reads: “Fair hearing requires among other things that it must be done in the presence of the parties.

“The ‘examination’ referred to in the CJN’s statement was certainly not done in the presence of the parties.

“The examination ‘of all the briefs of argument and the exhibits for over two weeks’ before 30th October, as announced by the CJN, could not be the fair hearing required by section 36 of the Constitution.

“No ‘examination’ of all the briefs of argument and exhibits as announced by the CJN in the statement quoted above can constitute a fair hearing required by section 36 of the Constitution in the absence of the parties.

“Furthermore, not only is the hearing required to be conducted in the presence of the parties in order to be a fair hearing, section 36(3) requires it to be held in ‘public’. Section 36(3) is quite clear and unequivocal on this point.

“It says: ‘The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.’

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“As the examination referred to in the statement by the CJN was not held in public, it is not the hearing required by section 36(3) of the Constitution. Secret hearings and trials are abhorrent to democracy.

“What happened in the Supreme Court on 30th October, 2019 is therefore a farce, not a valid hearing and determination of the appeal lodged by former Vice-President Atiku against the victory of President Buhari in the 2019 Presidential election as declared by INEC.

“Finally, the decision of the Supreme Court dismissing the appeal for lacking merits is a law within the meaning of Section 1 of the Constitution and, being inconsistent with section 36 of the Constitution, it is, by the self-executing declaration in section 1(3), null and void.

“Section 1(3) is a self-executing declaration and does not require anything else to bring it into effect. In other words, the decision dismissing the appeal is null and void without further ado.

“Whether or not the decision of the Supreme Court dismissing the appeal is a law within the meaning of section 1(3) of the Constitution, the Supreme Court is under and subject to Constitution as the ‘supreme law of the land binding on all authorities and persons throughout the Federal Republic of Nigeria’, including the Supreme Court.”

But tackling Prof Nwabueze (SAN), Justice Ilori said the constitutional lawyer was wrong in saying that the judgment amounted to nullity simply because the CJN said the panel members had been perusing the documents two weeks before the members of the panel were unveiled.

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Justice Ilori said: “When you file a document in court, before a judge can do justice to it, he must read, peruse, and understand it. So, you can’t just go and sit in the open court without understanding the case put forward by parties.

“Now, we don’t know how bulky the documents are. But they said they have been reading the documents, studying it before the panel sat. After they had read it line by line, word for word, they will now sit in chambers and discuss it. A judge does not sit in court without reading the documents in the case he wants to do.

On the issue of fair hearing, justice Ilori disagreed with Prof Ben Nwabueze (SAN). He said “I don’t agree with him. The problem is that if you have not been a judge, you don’t know how judges do their things. I never sat in court without reading the documents, memorising it.

“You know, when the parties come to court to argue their case, I will be asking, wait a minute: Have you looked at paragraph so, so and so and line so, so and so of your submission? Does it agree with what you are saying? Those questions mean that you really understand the documents. No judge will ever sit without understanding the document,” he added.

He had earlier said that the CJN has the sole discretion to empanel justices that would take the appeal.