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Tag: Kayode Eso

  • Kayode Eso: A tribute

    “A man can die but once”, William Shakespeare said some centuries ago. When the Bard of Avon expressed this immortal axiom, he must have made that remark about great men like himself and the likes of Justice Babakayode Eso, who died last month.

    In his book, For Whom The Bell Tolls, John Donne observed that: “No man is an Island, entire of itself; everyman is a piece of the continent, part of the main;…Any man’s death diminishes me, because I am involved in mankind; and therefore send to know for whom the bell tolls; it tolls for thee.”

    Unfortunately for death, as it tolls its bell, it cannot silence the legacy Eso left for the legal profession and the good virtues he bequeathed to students to emulate. Learn as if you were going to live forever, Mahatma Gandhi posited, adding “live as if you are going to die tomorrow.”

    News of Justice Eso’s death hit the nation like a 21st century version of Hiroshima blast. On the fateful Saturday – November 10 – at the basement of Faculty of Law, Obafemi Awolowo University (OAU), after the announcement, students started recounting his intellectual achievements and personal meeting to mourn the foremost jurist.

    Dayo Ogunyemi, the immediate past president of the OAU Law Students Society (LSS), regretted his inability to hold a personality lecture for the late justice.

    He said: “I remember I was discussing with members of my executive council about the annual Kayode Eso Lecture. I blame fate that we could not hold the Kayode Eso lecture during my own time despite that we made necessary arrangement for it. We wanted to do it on the 25th of August and it didn’t hold.

    “The second time, I went to see Baba Eso for the new date of the lecture. He told me he never subscribed to the idea of holding the programme in November. It was as if he knew death was coming. He did not approve the November date we presented to him. Baba Eso travelled and never returned from that journey. It was as if he knew about his imminent death. So he was prepared for it.”

    Eulogising the late jurist, a Law student said: “Baba lived to fight the cobwebs of technicalities and injustice. Baba inspired my own life. I remember that he was the first person to encourage me as president of Law students told me: “your advocacy skill is real, you will make a good lawyer” and that stoked my interest further. If my story would ever be told, they would say that I lived during the time of Justice Kayode Eso.”

    It really showed that Justice Babakayode Eso was a great legal luminary; he did not only touch his immediate environment but also touched the lives of the people, who are far away from him. A 300-Level student of Law told this writer how she was privileged to meet and rubbed minds with him. The student said her life changed after the conversation.

    Baba Eso was a legal octopus, jurisprudential ‘iroko’, and intellectual per excellent. I recalled the dissenting landmark judgment he made in the case of Shagari vs Awolowo. I believe that the works and landmark judgments of Baba Eso will continue to enrich legal profession in Nigeria.

    Today, this concept referred to as “Fundamental Human Rights” after the 1948 Universal Declaration of Human Rights by United Nations has not only come to stay, but has won a Nigerian citizenship by its domestication in Chapter IV, Sections 33 – 44 of the 1999 Constitution of the Federal Republic of Nigeria. Trust Justice Eso, he did not fail to remind us in the case of Ransome-Kuti vs Attorney General of the Federation (1985) NWLR (pt 60) 221 that: “fundamental human rights are rights which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence…”

    Baba Eso, the “Mystery Judge” (an allusion to his ‘not guilty’ dissenting judgment in favour of Nobel Laureate Wole Soyinka, the Mystery Gunman, who stood trial in the 60’s for his role in an ‘offensive’ broadcast) lived life as a principled man.

    Emeritus Professor D.A Ijalaye, in his third Fellows Lecture on Corruption in the Public Service of Nigeria: A Nation’s Albatross at the Nigerian Institute of Advanced Legal Studies in July, 2008, lived proved William Shakespeare’s assertion wrong that: “the evil that men do lives after them; the good is oft interred in their bones.” I can’t agree less with the legal giant, for Justice Eso affected lives in his sojourn on earth. The good testimonies of the touched people was not interred with the bones of the late jurist when his remains were buried last week. Indeed, Justice Eso lives on in our heart.

    Opeoluwa, 300-Level Law, OAU

  • Kayode Eso: A colossus departs

    In Nasir Bello v. Government of Oyo State, [1986] 5 NWLR (Pt. 45) 828, the Oyo State Government executed a convicted prisoner, whilst his appeal was still being heard. Both the High Court and the Court of Appeal agreed that Bello’s Family’s Counsel had failed to claim the appropriate remedy for the injury. Rather, he appeared to be hoping that the Courts would identify and apply a remedy. That was not the duty of the Courts. But the Supreme Court held that ubi jus, ibi remedium, i.e., where there is a right, here must be a remedy.

    The Court then made this fundamental pronouncement about its world view and guiding philosophy.

    “I think the Court has attained a stature in the pursuit of justice that a claimant who has established a recognized injury cannot be turned back on the ground that he has not stated the head of law under which he was seeking a remedy” (Karibi-Whyte, JSC)

    On the maxim ubi jus ibi remedium, Oputa, JSC, declared that it was so fundamental to the administration of justice that “where there is no remedy provided either by the common law or by statute, the Courts have been urged to create one. The Courts cannot therefore be deterred by the novelty of an action.”

    For his part, a visibly enraged Aniagolu, JSC, declared as follows:

    “This is the first time in this country of which I am aware, in which a legitimate Government of this country – past and present: colonial or indigenous – hastily and illegally snuffed of the life and liberty of the subject and the principles of the rule of law. The brutal incident has bespattered the face of the Oyo State Government with the paint brush of shame.”

    In Fawehinmi v. Akilu (ii) Togun, [1987] 4 NWLR (Pt. 67) 797, in which the late great Icon of the Rule of Law and Human Rights sought to prosecute two security officials for the murder of Dele Giwa, the two lower Courts, (the High Court and the Court of Appeal) refused the application on the ground that not being a blood relation of Dele Giwa, Fawehinmi had no locus standi (legal right) to prosecute the case. The Supreme Court reversed these decisions, for according to Eso, JSC, speaking for his Brethren sitting on that case, in Nigerian Criminal Law, every Nigerian is a brother to another Nigerian. He continued thus:

    “It is the view of my learned brother Obaseki, which I fully share with respect, that “it is the universal concept that all human beings are brothers and assets to one another.” He applies this to ground locus standi. That we are all brothers is more so in this country where the socio-cultural concept of “family” and “extended family” transcend all barriers. Is it not right then for the court to take note of the concept of the loose use of the word “brother” in this country? “Brother” in the Nigerian context is completely different from the blood brother of the English language.

    Though Cain challenged the locus standi of his being questioned as to the whereabouts of his brother, Abel, it was his reason that he was not his brother’s keeper. That might have been in the outskirts of the garden of Eden. In Nigeria, it would be an unacceptable phenomenon. And when it comes to the law of crime, everyone is certainly his brother’s keeper.”

    In Saidu Garba v. Federal Civil Service Commission [1988] 1 NWLR (Pt. 71) Saidu Garba, head of the Fire Fighting Service, at Onikan in Lagos, was first arrested for the 1983 inferno of the NITEL TOWER Marina, which was bizarre enough; he was then dismissed from the Civil Service. He challenged this in Court. The Government defence was based on Decree 17 of the Buhari Military Government which came into power on 31st December 1983. The fire incident occurred on 31st January 1983, 11 months before the Buhari Government came into existence. Decree 17 prohibited the judicial challenge of any removal from the Public Service. The two lower Courts held that in the circumstances, their hands were tied. They were helpless. The Supreme Court rejected the cloak of helplessness and declared that Garba’s suit was valid. Decree 17 could not apply to an incident that occurred in January 1983 when the Regime that promulgated it was not even in existence.

    In Olaniyan v. University of Lagos, [1985] 2 NWLR of (Pt. 9) p. 599, the appointments of Professor Olaniyan and his colleagues in the University of Lagos, were terminated without due process, on the basis of the common law principle of master and servant. A master in common law, can sack a servant at will, wrongfully or not. The servant can only seek a remedy in damages, not re-instatement. Both the lower Courts accepted this argument. But the Supreme Court rejecting it created a new concept in labour law – “a contract with a statutory flavor”. According to them, the appointments of the appellants were based on statutory law and regulations. This was not the typical common law master and servant relationship. Any termination of appointment which did not strictly follow the laid down statutory terms and conditions of appointment, discipline and termination was illegal, null and void.

    But the greatest judgment of all is the locus classicus called Government of Lagos State v. Ojukwu, [1986] 1 NWLR (Pt. 18) p. 621. This is the Nigerian Magna Carta.

    A mansion known as No. 29 Queens Drive Ikoyi, was built by the Father of Chief Emeka Ojukwu, but was seized by the Lagos State Government as an abandoned property during the Nigeria Civil war. Sometime in 1985, when the building was empty, Ojukwu moved in, and brought an application claiming ownership of the property. Whilst the matter was still in the High Court, the Military Governor of Lagos State without a Court Order, sent in soldiers to eject Ojukwu violently. Ojukwu appealed to the Court of Appeal seeking an order of re-statement into the house pending the hearing of the substantive matter. The Court of Appeal granted the Order, and without obeying that order, the Governor of Lagos State appealed to the Supreme Court against it. The Supreme Court refused to hear the appeal of the Military Governor of Lagos State, as long as he was in disobedience of the order of the Court of Appeal. The Statements made by the Judges of the Supreme Court in that case, have become legendary in legal circles, and they constitute the backbone of the Rule of Law in Nigeria today.

    According to Eso, JSC, who gave the leading judgment:

    “I think it is very serious matter for anyone to flout a positive order of a court and proceed to taunt the Court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive. Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislative (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the Constitution to these organs by S. 4 (Legislative powers) S. 5 (Executive powers) and S. 6 (Judiciary powers) are classified under an omnibus umbrella known under Part II to the Constitution as “Powers of the Federal Republic of Nigeria”. The organs wield those powers and one must never exist in sabotage of the other or else there is chaos. Indeed, there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness is tantamount to a deliberate violation of the Constitution. When the Executive is the Military Government which blends both the Executive and the Legislative together and which permits the Judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.

    On his own part, Oputa, JSC, ended his judgment by saying “I can safely say that here in Nigeria, even under a Military Government, the law is no respecter of persons, principalities or powers and the Courts stand between the citizens and the governments alert to see that the state or government is bound by the law and respects the law.”

    The above constitute a small sample of the pure and clear stream of immortal proclamations emanating from the golden Court of the golden age of the Judiciary of which Eso was a major player. The judgments of that outstanding Court exhibited courage, creativity, originality of the thought process and exceptional scholarship.

    The poignancy and painfulness of the departure of Eso and his ilk like Idigbe, Mohammed Bello, Aniagolu and Nnamani, is that Nigeria of today is in the hands of mostly men without character. Integrity, honour, uprightness, discipline, transparency, for which Eso and his colleagues stood, no longer exists. A major tragedy is unfolding before our very eyes. There is an accelerated depletion of this breed of noble Nigerians, whilst we are witnessing an exploding population of the biblical human thorns or tares in public office.

    As if I had a prescience of the sad decline of our Judiciary, I made the following comments in 1988, in the concluding chapter of my book: A Legacy for Posterity – The Work of the Supreme Court, 1980 – 1988.

    “One other point that must give cause for concern, is whether these developments are just a flash in the pan which will disappear into distant obscurity, once the present crop of Supreme Court Judges are gone. Has the Court established a permanent legal culture; an institution of ideas and principles which will remain solid to be built upon by succeeding generations of Judges? Or do we merely have an ephemeral, spirit, which like a comet, will disappear into oblivion as the present great actors of the Supreme Court go one after the other into retirement? After all, Aniagolu is 65 and has now retired. So too have Kazeem and Coker. Eso is 63, Oputa is 64, Kawu is 62, Obaseki is 62. These men will retire in a few years. So of the 11 Justices who with about 4 others have brought about the legal and I believe social, revolution we have been discussing, 7 have left or are virtually on their way out. Will their good works outlive them? I dare say yes. I believe they with their colleagues who will be left behind, have laid down the strongest foundations for a legal system that will make the welfare and freedom of Nigerians and all those resident in Nigeria its cardinal principles. We can also take comfort in the fact that one of the architects of these phenomenal developments has now taken over as Chief Justice and will carry on and build on the great traditions he is inheriting from his predecessors.”

    My optimism turned out to be sadly misplaced. The golden age culture and achievements were not sustained by the succeeding generations of Justices.

    With this latest devastating loss to this Country, I am compelled to lament with Shakespear’s Mark Anthony in Julius Caeser:

    “Here was a Kayode Eso. Whence comes another”?

  • Kayode Eso: A colossus departs

    Kayode Eso: A colossus departs

    As Shakespear stated in his famous play Julius Caeser, through the character of Calpurnia, Caeser’s wife:

    “When beggars die there are no comets seen. The Heavens themselves blaze forth the death of princes

    In the same play, the character Cassius says this about Caeser:

    “Why man, he does bestrode the narrow world like a colossus”

    Shakespear might very well have had the Hon. Justice Kayode Eso in mind when he wrote Julius Caeser; FOR Eso bestrode the legal world like a Colossus.

    There are two occasions in which I was truly shocked by the announcement of the passing away of a person. The first was that of Chief Obafemi Awolowo in May 1987 and the second was the more recent one of Justice Kayode Eso. In each case, I was shocked, taken aback; and went into a state of denial for a short period. In the case of Chief Awolowo, when the reality of what had happened finally sank in, I realized that subconsciously I did not associate Chief Awolowo with the possibility of death. Thus, he had so overcome and subdued the physical (mortal) aspect of his being by the spiritual, that over the years, I began to regard him more as a spirit, than a mortal man. As we know, the spiritual does not die.

    In the case of Justice Kayode Eso, it was not so much the supremacy of his spirit, as much as his unyielding commitment to certain values which have become quaint in Nigerian public life; courage, integrity, honour, honesty, transparency, bluntness and not suffering fools gladly. The two men lived by the same code of conduct. But where Awo was an ascetic, a teetotaler, vegetarian; in a sense depriving his physical body of basic pleasures, Eso eat well, drank good wines moderately, and showed up at social events organized by Law organizations. But the belief systems and code of conduct of the two titans was the same. And so I went through that syndrome of unbelief when a journalist called me to confirm whether Eso had passed on. I screamed, “hell NO!” and started calling his mobile phone, without getting any response. Even when confirmation came later, I was dazed. The man was larger than life.

    Everyone has heard of the Wole Soyinka trial in December 1965. As the Judge, Eso faced serious threats and intimidation. The fearsome Deputy Premier of the West, Chief Fani-Kayode, invited Justice Eso to his house and directed him to convict Soyinka. Eso assured him that Soyinka would be convicted, if found guilty on the evidence. He then asked the feared Deputy Premier to be allowed to leave because he had informed his wife that if he was not back home within an hour, the lady should call the police. The shocked Chief Fani-Kayode allowed Eso to depart in peace.

    When Soyinka was acquitted ad discharged by Eso, then the youngest and most junior Judge on the Western Region Bench, he was immediately exiled by posting to Akure, the then judicial boundary station of the West. Very wisely, he never spent the night in Akure. He drove to his Court at Akure by car every morning and drove back to Ibadan every evening, until he was posted back to Ibadan, sometime after the Military Coup in January 1966.

    In 1967, Eso was appointed a Judge of the Western State Court of Appeal, which had just been established. During his nine (9) year tenure as Justice of Appeal, he acted on many occasions as the President of that Court and became the substantive President from 1975 to 1976. In June 1976, Eso was appointed the first Chief Judge of Oyo State after western Nigeria had been split into 3 States. It was from that Office that he was appointed a Justice of the Supreme Court of Nigeria in 1978.

    Suddenly, something extra-ordinary and unprecedented started happening at the Supreme Court. By same strange arrangement of fate or divine intervention, he had sitting with him on the Supreme Court, judicial soul mates, with whom he completely transformed the administration of justice in this country within a few years, before our very eyes. Was this the U.S. Supreme Court under Earl Warren or Justice Marshall? No. This was our own Supreme Court, garlanded and adorned by legal stars; outstanding Jurists, who brought illumination, hope, courage, erudition, learning, philosophy, distinction and activism into our humdrum judicial system. Obaseki, Oputa, Nnamani, Aniagolu, Mohammed Bello, Idigbe, Karibi-Whyte, Kayode Eso; all sitting on the Bench of one Court? It was an unimaginable stroke of fortune. I doubt that this will ever happen again. Now Justice was to be the watch word of the Court. The Court’s activism and creativity ensured that every complaint was resolved in accordance with the justice of the case and that where the law did not provide a relief, the Supreme Court would create that relief and apply it.By national acclaim it was agreed that this was the golden age of the Supreme Court, and indeed of the judiciary in Nigeria.

    In Engineering Enterprise Contractor of Nigeria v. Attorney-General of Kaduna State [1987] 1 NSCC 601 at 613, Eso, JSC, articulated the guiding philosophy of the golden age Supreme Court in these words.

    “One stream that permeates all these decisions and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court. I am not saying that ex debito Justiciae by itself is a cause of action. It is to be the basis for the operation of the court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.”

    A brief summary of some of the decisions by which Eso and some of his colleagues transformed the spirit of the law in this country, taking us to legal Olympian heights of justice in the process, is called for at this stage.

    In Stitch v. Attorney-General of the Federation [1986] 5 NWLR (Pt. 46), 1007, Mrs. Chinyere Stitch imported a Mercedes Benz 280 into Nigeria early in April 1982. She immediately applied for an import licence and paid the duty on the car which was 331/3%. The malicious officials in the Ministry of Commerce refused to issue the licence knowing that the duty was about to be increased to 500%. She was now asked to pay the new rate of duty. Both the High Court and the Court of Appeal held that she had to pay the new duty. But the Supreme Court held that the Minister’s discretionary power to issue or refuse to grant import licence was clearly within the reviewable jurisdiction of the Courts. Whether the Minister failed to exercise his discretionary power or abused it, whether he gave reasons or did not give reasons for his action, it was a principle established by the Courts that once a prima facie case of misuse of power had been established, it would be open to the Courts that the Minister acted unlawfully even if he declined to supply a justification at all. Mrs. Stitch was therefore only obliged to pay at the original rate of 331/3%.

  • A season of death: Justice Kayode Eso; Justice Promotion= injustice to accused; Customs: Don’t burn, Donate!

    A season of death: Justice Kayode Eso; Justice Promotion= injustice to accused; Customs: Don’t burn, Donate!

    This November is the season of death. Death is hurrying to make the 2012 quota, just like government’s budgetary ‘last quarter’ mis-spending rush. With the murdered victims of Boko Haram bombs, cattle-farmers wars and floods we also see major deaths in politics, medicine, media and law. No one is ever old enough to die. Professor Bayo Olumide, eminent neurosurgeon, Alhaji Lam Adesina, Dr Olusola Saraki Mr Bode Alalade, broadcaster par excellence and now Justice Kayode Eso. He was the Truth and Reconciliation Icon, true Nigerian, author of books and ‘executive lawlessness’, primus inter pares, legal stellar light, doyen of arbitration, outstanding conversationalist, with great wit. It was always a pleasure to be in his presence. He was partial to the youth and an inspirational iconic role model whenever he graced an Educare Trust activity. Many will recall him being the trial judge who found Wole Soyinka ‘not guilty’ as ‘the man with the gun’ at NBC, Dugbe. May his large heart and soul Rest In Perfect Peace. Amen. With these deaths, governments and media producers have again lost the opportunity to fund historical and motivational documentaries, interviews, Nollywood and radio programmes on making and broadcasting the ‘life and times’ of these great men. Unfortunately, in spite of the well-known anticorruption efforts of Justice Kayode Eso and others, the judiciary is still suspected of corruption, and also stands accused of unnecessary injunctions and adjournments.

    A small inexplicable observation on the legal learned world: The recent celebrated and well deserved elevation of certain justices raises an important legal, moral and economic question while the National Assembly and the Legal Council are preoccupied with deliberating on weighty issues like gay marriage, constitutional review and plea bargaining. Why does the judiciary always make an ‘ass of itself’? Imagine a judge trying several complex cases some for 19 months. Suddenly she is promoted with ‘immediate effect’. If this happened in another professional, business or family sphere we would be in court claiming damages for ‘breach of contract’, ‘deception’, ‘false pretences’ et cetera. Remember this was believed to be the problem at the heart of the Justice Salami affair –to get him out of the way, kicked upstairs. The result is that the cankerworm of injustice breaks out right in the judge’s chambers and the courtroom. If the judges themselves were victims of such injustice would they not be up in judicial arms? Can a country like Nigeria, not known for its expeditious justice delivery service, really afford such expensive judicial ‘luxuries’ or delays? Unfinished cases are abandoned even as we celebrate well-deserved judicial promotions. Later another judge has to start all over again.

    Social science departments, lawyers’ groups like the NBA and FIDA and NGOs like JDPC and Consumer Protection bodies should compute the huge multimillion naira cost of this cause of ‘delayed justice’, cost of a retrial in emotions and frustration, in repeat legal fees and transportation and feeding, the cost to the accused and witnesses, the cost to the country-all totalling N50-100m for such elaborate cases and unquantifiable ‘judicial inconvenience’ by police, prisons, prisoners, witnesses, litigants and lawyers. This cost does not take into consideration the well-known judicial slogan that ‘justice delayed is justice denied’. Would it not be better to promote the judge, start the new salary grade but keep him or her as a judge of that court until he or she has finished all existing cases expeditiously, cleared the courtroom desk? Fellow Nigerians, languishing in prison ‘awaiting trial’ and innocent till proved guilty, should be protected from such judicial licence. We are happy when judges are promoted but it is good judicial judgement to ensure that they finish all cases pending before abandoning the court. Indeed why do judges not set aside several days for continuous hearing of a particular case to prevent the ‘adjournment syndrome’.

    Another socio-legal conundrum: On TV we regularly see goods, drugs and tyres being burnt by Customs or NAFDAC or NDLEA. Environmentally speaking tyres should never be burnt in the open because they environmentally toxic substances which pollute the air badly and also damage the lungs of passers-by, even NAFDAC and Customs officials. Tyre burning should be banned nationwide by a Law ‘Burning of Tyre Prohibition Act’. Burning may be the only option to disposal of seized hard drugs if you do not breathe in the drug filled air around the fire, but why does Customs burn all seized goods? Many such endangered goods are not harmful and are still good enough to save lives if donated to the needy flood victims, and repatriated prostitutes from Italy, freed trafficked persons, orphanages, Red Cross and religious organisations known for their non-corrupt humanitarian work. This would be punishment enough for the smugglers. Fund-raising for these groups is a difficult task in Nigeria. So why this ‘seized wealth to waste’ burning? If the authorities burn tyres, a known major pollutant method, why do they not burn the ammunition and guns they seize and what happens to them? So why burn sieved frozen chicken, rice, cloth and clothes in a country where environmental pollution from smoke is a major problem and 70% of the country is in poverty? Customs should be legally empowered and forced to give seized goods to an independent ‘Bureau of Smuggled and Recovered Property’ or NEMA for forwarding to recognised NGOs, orphanages and handicapped schools. Let the poor, not environmental pollution, benefit from seized goods.

     

  • Justice Kayode Eso is dead

    Justice Kayode Eso is dead

    The retired justice of the Supreme Court, Justice Kayode Eso is dead.

    He died died at the Hammersmith Hospital, London, on Friday.

    He was aged 87.

    The late Justice Eso was born on September 18, 1925 in Ilesa, Osun State.

    He studied at Trinity College, Dublin, Ireland Republic, where he obtained a Bachelor of Law Degree in Legal Science in 1953 and a Masters in 1956.

    Justice Eso was the greatest protagonist for an Independent Judiciary and very well known for his relentless efforts in maintaining discipline and protecting the integrity of his court.

    He had received several awards and University honours. He was Commander of the Order of the Niger (CON): 1979.

    He received LL.D honoris Causa, University of Ibadan: 1990, and University of Nigeria, Nsukka: 2001, respectively.

    The deceased was an author of several books, articles and had delivered various papers at national and international seminars.