Justice Abba-Aji: Good for Apex Court, as good for Appeal

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After investigations on allegations of sexual misconduct levelled at United States’ Justice Brett Kavanaugh,a letter to the Senate Republicans from the Senate Judiciary Committee Chairman said none of the witnesses provided evidence to back their claims. Subsequently, he was cleared and elevated to the Supreme Court of the United States.

A few weeks ago, one of his accusers not only admitted that she lied to the congress but revealed that she had never met Kavanaugh.

Nigeria’s Chief Justice (CJN), Hon. Justice Walter Samuel N. Onnoghen has not minced words in his continual charge that no corrupt judicial officer will be spared. He even expanded the definition of judicial corruption to include giving of judgments or orders based on any consideration other than legal merit and not just bribe-taking.

Since the October 2016 midnight raid on justices’ homes by men of the Department State Security (DSS) the integrity of Nigeria’s judiciary has been greatly battered. However, while there have been disreputable acts by some members of the bench in alliance with some in the bar, many judicial officers have discharged their responsibilities reputably.

And so, when Civic Society Network Against Corruption (CSNAC), through its Chairman, Mr. Lanre Suraji, urged President Muhammadu Buhari not to forward Hon. Justice Uwani Musa Abba-Aji’s name to the Senate for confirmation as a Justice of the Supreme Court of Nigeria, on the basis that she was under corruption investigation by security agencies for allegedly accepting a bribe from a senior lawyer who is currently facing trial in court, some questions arose.

Suraju, who is a member of the NJC’s Corruption and Financial Crime Cases Monitoring Committee set up last year by the CJN, was said to have threatened to challenge Abba-Aji’s appointment in court should President Buhari assent to her elevation to the Supreme Court. Nonetheless, the National Judicial Council (NJC) has since reacted to the call asserting that there are no allegations of corruption against her. The NJC, in a statement by its Director of Information, Mr. Soji Oye, explained that, contrary to CSNAC’s claim, Justice Abba-Aji has no pending corruption case to disqualify her from being appointed to the apex court’s bench.

The NJC had, at its 87th meeting chaired by the CJN on October 3 and 4, recommended Justice Abba-Aji, currently serving at Enugu division of the Court of Appeal, to the President for appointment as a Justice of the Supreme Court. She is from Yobe State.

Her lordship was one of the eight judicial officers, who were directed by the NJC to excuse themselves from duties, effective from November 2, 2016 on the request of the Attorney General of the Federation (AGF) pending the outcome of their investigation by the DSS, over corruption allegation. She and others were, however, directed to resume duties on June 7, 2017, on the grounds that no charges were brought against them by the AGF at the conclusion of their investigation.

If the AGF and his team, that initially accused her of graft, failed to bring charges against her at the end of their investigations, why the insistence by CSNAC that she is under corruption investigation by security agencies?

When the NJC in view of no pending corruption case against her and other justices called them back to work, CSNAC raised no posers. All that while, she adjudicated over matters and wrote judgments. If she is unfit to sit on the apex court bench on account of alleged corrupt practices, does it then mean that justices with corruption tendencies are suitable for the Court of Appeal Bench? Would it not amount to grave injustice for CSNAC to be silent over the recall to the Court of Appeal bench, of a judge that is likely to pervert the course of justice? Would it not be a great travesty of justice to suffer litigants the agony of going on appeal when it is known that they will not get justice? CSNAC needs to answer these questions and more because, in their opinion, ‘she is unfit for elevation’ but kept mum when she was recalled.

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But for routine appeals to the Supreme Court by lawyers and litigants who are dissatisfied with some decisions of the appeal court including that of her lordship, no appeal since her elevation to the Court of Appeal and indeed, since her recall after the DSS debacle borders on perverting the course of justice or graft.

In a recent address to women judges, Hon. Justice Amina Augie of the Supreme Court of Nigeria had this to say: “In writing our judgments, we must seek to interpret the law justly, fairly and expeditiously, to ensure that justice is not delayed. We must strive to ensure that we are not only applying the law as it is, but adopting philosophical and normative approaches to interpreting the law.

“The end result should be a ruling or judgment that delivers justice while simultaneously building on existing jurisprudence…We are judges first, then women; so we must always present ourselves as qualified and competent candidates; not as alternative choice or affirmative choice.

“As judges who are women, our roles are no different from our fellow male judges; our role as judges is to play a part in the creation of jurisprudence. That is, women that recognise the importance of human rights, regardless of the field of law in question, particularly so for judges in common law jurisdictions.
“We must ensure that in interpreting and applying the law, we are playing a representative role as agents of change; that the law does not only have a human face but also has a woman face.”

So far, the above charge has not been controverted as it concerns Hon. Justice Uwani Abba-Aji.

The law is clear about the party on whom the burden of proof lies. The onus, the obligation has always been on the party who makes an allegation to prove the claims made against the other party. As at today, our laws provide that a party is presumed innocent while the other side bears the burden of proof. The law is trite that he who asserts a fact must prove it, and where enough and relevant evidence are not adduced, then, it is he who has failed to produce the evidence that will fail in his case.

Delivering the lead judgment in George Adumu v. The Comptroller of Prisons, Federal Prisons, Aba &Ors.; (2013) LPELR-22069(CA) Abba-Aji disclosed that: “An appellate Court will not ordinarily interfere with exercise of discretion by a Court except where the Court acted under a misconception of Law or under misrepresentation of fact in that it either gave way to irrelevant or unapproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all cases, where it is in the interest of justice to interfere…”P. 39, paras.D-G.

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Similarly, in Mr. V. O. Ola Jegede&Ors. v. Atoki Oluwasesan, (2011) LPELR-8981(CA), she held: “The only situations when an appellate court may interfere with such findings are in circumstances such as where the trial court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal court should not abdicate its own responsibility and rubber stamp the error, but should intervene.” P. 18-19, paras.E-A.

So far, none of her decisions on the Court of Appeal bench has either been labelled as perverse or contrary to the above cited position of hers. CSNAC is yet to provide any supporting evidence to show that her lordship is under any investigation, corruption or otherwise. No further claims of graft have been made by the AGF and his team; nor have they refuted NJC’s claims by insisting they have not cleared her.

The NJC still smarting over the October 2016 embarrassment and presently exceedingly circumspect in its affairs, particularly, in the area of judicial discipline, could not have readily sent Abba-Aji back to the appellate court bench laden with tar.

It must be recalled that when Hon. Justice Sylvester Nwali Ngwuta was indicted and charged to court as well as the Code of Conduct Tribunal by the AGF, neither the CJN nor the NJC made any move to stop it. The law was allowed to take its course and at the end he was acquitted in both places.

Likewise, the NJC could not have interfered or intervened with the prosecution of Justice Abba-Aji had she been found wanting. Having been exculpated, it is only just that she went back to her job. Again, not having been found wanting, why should her elevation be questioned?

 

By Lillian Okenwa

Legal Practitioner, Editor -in – Chief/Publisher – Law & Society Magazine

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