- By Jim Unah and Kizito Ochala
In a paper titled: “Perspectives on issues of justice sector reform,” the author, Raymond Nkannebe, highlighted matters about the appointment and discipline of judicial officers, rethinking the structure, judgment enforcement, the appellate system, remuneration and welfare of judicial officers, digitisation and innovation, training and discipline of non-judicial officers, and the role of legal practitioners as germane to a robust reform of the judicature in Nigeria.
Interestingly, all these issues were canvassed and discussed at the 2024 National Justice Summit with clear recommendations for legislative action and executive implementation, leading to constitutional amendments to reinvigorate the Judicial sector in the country and hopefully restore public trust and confidence in the judicial system.
From Mr. Nkannebe’s account of the conversations at the summit, it is the issue of rethinking the structure of the judicature that generated many emotional outbursts that triggered a recommendation for the Court of Appeal to transmogrify into a Supreme Court of the Federal Republic of Nigeria (on most aspects of our lives).
Unarguably, what motivated the recommendation, at the Judicial Summit, for all cases of economic and social nature (categorised by Nkannebe as trivial matters) to end in the Court of Appeal is the desire to address the problem of case over-loads or congestion of the courts up to the Supreme Court.
There are too many cases of less importance, it has been alleged, that are allowed by the extant structure of the courts to drag on almost forever, even up to the Supreme Court; whereas, the Supreme Court ought to concentrate on special cases of constitutional nature relating to the interpretation of laws and the fine-tuning of legal principles to guide judges and justices in all jurisdictions of courtroom government in the country.
When all such cases of less importance end up in the Court of Appeal, according to Nkannebe, the Supreme Court will be free to concentrate on important constitutional matters and “foreign policies that affect Nigeria as a sovereign entity,” just like the Supreme Court of the United States of America.
As a consequence of the preceding, there is an ongoing debate in the community of legal pundits, scholars of jurisprudence, legal practitioners, and even Supreme Court Justices that the solution to the problem of case overload, congestion, and undue delays in the disposal of cases is to take away the right of appeal of the citizens to the Supreme Court by making the Court of Appeal the final court or the Supreme Court for cases of economic and social natures, called “trivial matters” which, however, constitute the bulk of the concerns of the citizens of Nigeria.
The solution to the problem of case overload in the courts is to expunge Section 6 (4) (a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, which does not allow states to create other superior courts of record apart from the State High Courts. This will allow the states of the Federation to create their High Court, Court of Appeal, and Supreme Court if they so desire, as it is in the United States of America, which we have a penchant for citing and copying.
What is surprising is that in mundane matters, such as religious matters, there are Islamic Courts and Customary Courts which have their Courts of Appeal in states where they have jurisdiction.
But there are no courts of appeal in economic and social issues that constitute the live-wire of citizens and the country.
A few Court of Appeal judgments overturned by the Supreme Court will illustrate the point that it would be a colossal error to make the Court of Appeal the last court for matters that concern most parts of our lives.
The three judgments of the Appeal Court of interest here are: (i) the Appeal Court judgment on the Plateau State Governorship election petition (ii) the Promise Mekwunye vs Emirates Airline, and (iii) the Senator Nwaoboshi vs the Economic and Financial Crimes Commission (EFCC).
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In the last Elections in Plateau State, the candidates of the Peoples Democratic Party (PDP) won 19 State House of Assembly seats.
However, the All Progressives Congress (APC) challenged the victory at the Election Petitions Tribunal. The Tribunal upheld the election based on the fact that the candidates were duly elected and that pre-election issues bordering on the conduct of primaries by political parties which are essentially the internal affairs of the parties; an issue already settled by the Supreme Court in a well laid down principle, that pre-election issues should not be entertained by the courts because such a practice abrogates the right of the electorates to choose their representatives and executive functionaries.
The Supreme Court ruled against the judgment of the Court of Appeal because the qualification of candidates deriving from primary election and nomination or sponsorship is a pre-election matter over which no court has jurisdiction (Judgment by the Supreme Court on 18-3-2023 Election of Governor of Plateau State, p. 27).
Only candidate participants of a party’s primary election have the right of action or locus standi to challenge the validity of the primary election process under Section 84 (14) of the Electoral Act 2022.
Therefore, a political party has no right of action to question or challenge the pre-election activities of another party (Ibid. pp. 27-28).
It is to be noted that Section 285(9) of the 1999 Constitution requires that any form of action against such election or nomination must be brought to court within 14 days from the occurrence of the event, decision or action complained about. The matter at issue occurred about 6 months before the petition was filed. Therefore, it is statute-barred and incompetent (Ibid., p. 31)
Another concern is that the deliberate refusal of courts to follow established precedents of the Supreme Court violates the provision of the Constitution in Section 287 (1) that the decisions of the Supreme Court shall be enforced in any part of the Federation and by courts with subordinate jurisdiction to that of the Supreme Court.
Also, the judgment of the Court of Appeal does not contain any finding that refutes the extensive finding of facts by the Tribunal concerning the order of the High Court on primary election processes (pp. 37-38). Hence, it has no power to express alternative views on the same evidence.
It has no power to simply substitute its views on the evidence with that of the Tribunal (pp. 38-39). The
judgment of the Tribunal delivered on 22-09-2023 that the appellant was qualified for the election of Governor and that he scored a majority of lawful votes cast is restored. The election and the return of appellant as Governor of Plateau State is hereby further upheld”.
The second case wherein the Supreme Court nullified the ruling of the Appeal Court on grounds of failure to invoke the relevant stare decisis is the case involving one Miss Promise Mekwunye Vs Emirate Airlines. An Emirate Airline ticket had been purchased early in the year for $2,000 and some fractions for a trip back home from school during the Christmas holidays in December of the year.
By December when Miss Mekwunye was ready to travel and presented the ticket to the Airline to join her parents and siblings for the Xmas holidays, the ticket price had soared from two thousand and some fractions of US dollars to three thousand and some fractions; with over one thousand US dollars increase and difference in fare.
The airline fell for it and refused to honour the ticket, leaving their customer, Miss Promise Mekwunye, to be stranded at the Airport.
The parent, Dr. Charles Mekwunye, intervened and pleaded with the Airline to honour the ticket according to the terms of service, to no avail, claiming that the Airline had no space for his daughter to travel.
Well, Dr. Mekwunye had to buy a new ticket at the new rate of three thousand US dollars and some fractions to ensure that his daughter travelled to join the family at their country home.
Incidentally, the new ticket was purchased from an Airline that is a subsidiary of Emirate Airlines; implying that Emirate Airlines had indirectly flown her for the same trip they had refused her on the original carrier that the first ticket was booked on.
The Supreme Court overturned the judgment of the Court of Appeal on some significant bases. Firstly, it failed to consider the discretionary power granted to the trial Judge to award costs (pp. 242-243).
The discretion of the trial court in awarding costs is one which the Court of Appeal ordinarily ought not to interfere with except and unless the award is manifestly excessive or too low.
In this case, there was no basis for the interference by the Court of Appeal with the award of costs, which was within the discretionary power of the trial court and which it exercised judiciously following the event of the litigation (p. 206).
Secondly, where general damages awarded by a trial court are within the contemplation of the parties, the Court of Appeal has no excuse to interfere with such exercise of discretion by the trial court.
In this case, the trial court’s award of general damages was an award of compensatory damage for losses reasonably expected to arise naturally from the nature of the particular breach of contract sued for by the appellant.
Therefore, the Court of Appeal erred when it interfered with the award. In the circumstances, the Supreme Court would interfere with the decision of the Court of Appeal (p. 203).
This is so because the trial court had the discretion to take account of any or all expenses incurred by the appellant in awarding costs because the rules of the court permit it (p.206).
In the final analysis, the Justices of the Supreme Court resolved the appeal in favour of the appellant and against the respondent.
The judgment is in accord with the provisions of the Montreal Convention, 1999, and Emirates conditions of carriage, 2006. The Montreal Convention is a Treaty that provides an Exclusive Remedy: the exclusive means for recovery of damages suffered by a plaintiff in the course of international air travel and preempts all state law claims (El Al Israel Airlines, Ltd. v. T’seng, 525 U.S. 155. 161. 119 S. C 662 664 (1999).
It is imperative to note that the Montreal Convention 1999 9 (MC99) establishes airline liability in the case of death or injury to passengers, as well as in cases of delay, damage, or loss of baggage and cargo.
The cases of Pinnock Brothers v. Lewis & Peat Ltd. (1956) 2 All ER 866; Suisse Atlantique Societe d’Armem ent Maritime S.A. V. N.V. Rotterdamiche (1967) 1 AC 361 and the instance of Thibodeau v. Air Canada (2014 SCC 67) suffice for precedents by which the Supreme Court substantiates its judgment in favour of the appellant against the respondent.
The third and last case to be cited here is that of Senator Nwaoboshi Vs EFCC. Senator Nwaoboshi obtained a loan from a bank to fund a particular project stated in the contract document. For some reason, the Senator used the loan to fund different projects altogether, even as all other loan obligations were still being duly performed by the Senator.
He was reported to the Economic and Financial Crimes Commission (EFCC) for money laundering and was charged. The trial court discharged and acquitted him on the grounds that using a loan secured from a bank does not amount to money laundering.
But the Court of Appeal upturned the judgment of the Lagos Division of the Federal High Court and jailed him for seven years without the option of a fine for a matter that was a breach of contract. Senator Nwaoboshi appealed to the Supreme Court.
Below are the details of the case from the trial court through the Court of Appeal to the Supreme Court.
The main allegation was that Nwaoboshi and his companies illegally acquired Guinea House, Marine Road, in Apapa, Lagos, for N8O5 million.
Suiming Electrical Ltd transferred part of the money paid for the property on behalf of Nwaoboshi and Golden Touch Construction Project Ltd. The funds are believed to be proceeds of illicit activities of the convict (Channels).
According to the Corruption Cases Database, “the litigation on the case enjoyed varying judgments at the various Courts. The Court of Appeal, in a unanimous decision, upturned the decision of the Federal High Court, Lagos Division which discharged and acquitted the appellant (herein a defendant).
The Court of Appeal, ruling on the prosecution’s appeal, held that the lower court erred in dismissing the charges. The appellate court, therefore, convicted all the appellant (therein, defendants) and sentenced the appellant to 7 years imprisonment, while the second and third defendants (companies) were ordered to be wound up in line with the provisions of Section 22 of the Money Laundering Prohibition Act, 2021”.
The Supreme Court established that Nwoboshi legitimately secured a loan and properly serviced the loan.
Furthermore, the court affirmed that once a loan is credited into an individual’s account, it becomes their own money, and they cannot be accused of fraudulent conversion. The court criticized the EFCC for meddling in civil transactions and stated that the conviction by the Court of Appeal was unreasonable and should be set aside (Leadership).
It is evident that the appellate court did not substantially examine the intricacies of the matter at issue hence, its judgment is at variance with the Federal High Court and the Supreme Court. It is an indication of suspected extra-judicial motivations. Grievously, the judgment of the Court of Appeal questions its competence, diminishes legal standards, smears judicial processes, and violates the fundamental rights of the appellant. Such as in this case referred may constitute severe damage deserving of compensation to the appellant. Ultimately, the judgment of the Supreme Court is remedial in the entire litigation and bears the baton of justice available to the Nigerian legal system.
Consequences
The critical issue to consider by all Nigerians is what would have happened if Senator Nwaoboshi had no right of appeal to the Supreme Court or if the Court of Appeal was his last court of resort. Simple -he would have languished in jail for 7 years or even died in jail for a miscarriage of justice by the Court of Appeal! Again, what would have happened to Promise Mekwunye if she had no right of appeal to the Supreme Court? She would have suffered undue harassment without remediation and severe financial loss had her matter ended in the Court of Appeal.
Likewise, the Governor of Plateau State would have been licking his wounds from the miscarriage of justice like the 19 PDP House of Assembly candidates robbed of lawful votes from the electorates by the Court of Appeal. The 19 PDP House of Assembly candidates are suffering today because they have been denied a right of appeal to the Supreme Court as their matter has ended in the Court of Appeal. This Plateau State situation could easily snowball into a resort to self-help, insurgency, and outright anarchy.
Unarguably, these scenarios playing out the incompetence and lack of pedigree of the justices of the Court of Appeal disqualify it, ab ignition, from acting as the last court in the socio-economic spheres of the lives of Nigerians.
Conclusion
Our study zeroed in and focused on the judgments of the Court of Appeal, the impression they leave the citizens with, and their perception of the law and the justice system in operation in the country. A bulk of the judgments of the Appeal Court leave much to be desired.
There are so many embarrassing judgments that put the judicial system to public ridicule. Then, you get to hear the call to decongest the courts by making the Appeal Court the last court for the overwhelming majority of cases affecting ordinary citizens.
The Plateau State Governorship and State House of Assembly election cases, the Mekwunye Vs Emirate Airlines, the Nwaoboshi Vs EFCC, and many others too numerous to inventory do not warrant the call for making the Court of Appeal – to miraculously transform into the last court for the majority of matters affecting the majority of Nigerians.
There should be a High court for each state of the Federation, a Court of Appeal, and a Supreme Court, in addition to the Federal Appeal Court and the Federal Supreme Court to reassure Nigerians that there is a safe judicial system to enable the dispensation of justice to ordinary citizens of the country.
Making the Court of Appeal the final court in economic and social matters should not be considered at all.
•Unah, PhD, FNAL, is a distinguished professor of philosophy at the University of Lagos.
•Ochala, PhD, is a lecturer in the Department of Philosophy, Dennis Osadebay University, Asaba.