“Without Prejudice”
Edo again is truly living up to being the heart beat of the nation. In the state the hearts of politicians especially of the PDP extraction are beating at the moment. An important ruling that may determine the fate of who occupies Osadebe Avenue will be delivered tomorrow 15th December 2020.
The APC and her candidate in the just concluded Sept 19th Governorship election Pastor Osagie Ize-Iyamu accused the governor of forging his university certificate presented to INEC in aid of his qualification for the governorship election in Edo State. APC also claimed that there are discrepancies in the subject Obaseki claimed he passed in his West African Examinations Council (WAEC) exam
In the suit marked FHC/B/CS/74/2020, prayed the court for an order disqualifying Obaseki from contesting the September 19 governorship election in Edo State on the grounds that he supplied false information on oath to INEC, an act said to be contrary to Section 31(5) and (6) of the Electoral Act, 2010.
Fighting back, Obaseki through his lawyer Ken Mozia SAN had applied to the Federal High Court to expunge some pleadings of the plaintiffs; an application that was out rightly refused. In a new development Obaseki has approached the appellate court to challenge the refusal of Justice Ahmed Mohammed of the high court to expunge some paragraphs in the APC’s reply to his affidavit and applied for a stay of proceedings and for the matter to be adjourned sine die (indefinitely) at the Federal High Court pending the determination of the appeal; a move that will ‘kill the case at the federal high court” if it succeeds as the matter is sue generis (unique with a life span of 6 months which ends on January 13th).
Obaseki’s lawyer Ken Mozia SAN while moving the motion told the court that the records of proceedings have been transmitted to the Court of Appeal and that the notice of appeal has been entered at the appellate court with appeal number CA/ABJ/CV/1072/2020.
He canvassed that since the decision of the high court refusing to expunge some paragraphs in APC’s reply is being challenged it is a law, for the lower court to hands off from the matter pending the outcome of the appellate court’s decision. Mozia cited authorities in support of his argument and insisted that the high court must await the decision of the Court of Appeal before anything could be done in the matter.
However, Chief Akin Olujimi, who argued for APC urged the court to dismiss Obaseki’s motion for indefinite adjournment of the certificate forgery suit on the grounds that it was a pre-election matter and was bound by time.
Olujimi contended that since the case had a life span of 180 days which would terminate by January 2021, it was in the interest of justice for the court to continue with proceedings.
His words, “Notwithstanding the documents produced by Obaseki in support of his request for sine die adjournment, this court is still endowed with jurisdiction to proceed with hearing in this certificate forgery suit.
“This court is bound to continue with the hearing since the suit is sui generis (its unique). Nothing shall be done to clog the smooth wheel of proceedings in a suit of this nation especially in line with fourth alteration act.”
Justice Ahmed Ramat Mohammed has reserved ruling in the motion filed by the governor. He said ruling on the motion will be delivered on December 15, 2020.
Rewind to about 1000 BC in 1st King Chapter 3 Verses 16 to 28 King Solomon viewed as an encyclopaedia of wisdom was in a similar vein faced with a difficult decision.
Two women who lived in same house had given birth to two babies and one had died so both laid claims to the baby alive and this matter was brought before King Solomon to give judgement on the rightful owner of the baby.
They argued back and fought until King Solomon said “Both of you say this live baby is yours, bring me a sword”. A sword was brought and Solomon said “cut this baby into half. That way each of you can have part of him”. The other woman said “Go ahead and cut him into halves”. “Please don’t kill my son” the baby’s mother screamed. Your majesty I l love him so much but give it to her that he may live”. King Solomon then replied “Don’t cut the baby. Give him to the woman who wants him alive. She is the real mother”. Everyone in Israel were amazed when they heard how King Solomon had made his decision and realised God has given him wisdom to judge fairly.
The Supreme court in evolution of justice in Nigeria have held in a plethora of cases that when a court is face with a dilemma of Substantial Justice and Technical Law, the courts must do justice.
The spirit of substantial justice is rooted in the Latin Maxim fiat jusitia rust caelem meaning “let justice be done though the heaven falls” An English poet and philosopher Walter Savage Landor also wrote many years ago that “when law becomes science and system, it ceases to be justice”. It must be appreciated that “the end of law is justice itself”
A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or no regard to the injustice that will be caused the opponent
In Salawu Ajide v Kadiri Kelani (1985) 1 NWLR 248 AT 269, Oputa J.S.C, on the need for truth to prevail in order to ensure justice is done poignantly cautioned that “justice is much more than a game of hide and seek. It is an attempt to discover the truth, on human imperfections, notwithstanding. Justice will never decree anything in favour of so slippery a customer as the present defendant/appellant” on this note, our courts have admitted that justice and truth are on the same ticket and that in doing justice the courts and all ministers in her temple, that is lawyers and all other stakeholders, must strive at discovering the truth regardless of legal technicalities
Also, Supreme Court in the case of Akeredolu V Abraham & Ors (2018) LPELR- 44067 (SC) had said that “Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, it is therefore better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities”. He then asked the Chief Justice designate to justify the decision in Adeleke V Oyetola in the light of the position of the Supreme Court in Akeredolu V Abraham & Ors (supra).
It is trite that an appeal does not, ipso facto, operate as a stay of proceedings of a court. Therefore, an appellant desirous of appealing the judgement of a lower court must take a further step by filing an application to stay the proceedings execution of judgment complained against pending the outcome of an appeal. An appeal, though, a constitutionally allowed right, is however, being used by litigants as a means of frustrating the other party to the suit as it causes delay in adjudication.
The powers of the courts are very clear in granting or refusing stay of proceedings when a matter have special, unique or exceptional circumstances as in this instant case that is sue generic with a life span of six months.
In Prof Olunloyo V Adeniran 2001 89 LRCN 2553;
Martins V NICANNAR FOOD CO. LTD 1988 3 S.C 429;
VASWANI TRADING CO. V SAVALAKH 1972 12 SC 77
Supreme Court held that courts must weigh competing rights of parties – Special circumstances warranting stay of proceedings or execution.
See also
FATOYINBO V OSADEYI 2002 98 LRCN 1225.
BIOCON AGBROCHEMICALS V KUDU 2000 82 LRCN 3332.
UNION BANK V ODUSOTE BOOKSHOP LTD 1994 3 NWLR Pt. 331, 129
MARTINS V NICCANAR FOODS CO LTD 1988 2 NWLR Pt. 74, 75
AJOMALE V YADUAT No 2 1991 5 NWLR Pt. 191, 266
AJAYI V OLADELE 1999 7 NWLR PT. 612, 567
PSYCHIATRIC HOSPITALS MANAGEMENT BOARD V DR. BAB UGOCHUKWU UTOMI 1999 13 NWLR Pt. 636, 572
As 3pm 15th of December draws nearer hopes are high that the wisdom of King Solomon will be bestowed on the justice of the Federal High Court Abuja to toe the path of substantial justice and not bulge to legal technicality.
Musings from: Prince Lucky Igbinedion
princelucky6420@gmail.com