Introduction
The size of the book should not come as a
surprise. Not only is it in the character of
law books to be sizeable but when the book is a compilation of some of the judgements of the Chief Judge of a busy jurisdiction such as Lagos State, in a career spanning some two decades, then such a weighty treatise is to be expected.
Justice Ayotunde Phillips was appointed as a Judge of the High Court of Lagos State in February 1994 and sworn in as the Chief Judge of Lagos State on June 14, 2012.
Altogether, the editors have reported full judgments of Her Ladyship and 22 rulings, making a total of 109 decisions of Her Ladyship beginning from 1997 up to 2013.
What makes the Chief Judge of Lagos State, Justice Ayotunde Phillips, to merit any or all of these appellations by which she has been called?
Deconstructing the Legal Philosophy of Justice Phillips
The selection of judgments of Justice Phillips, delivered over two decades, from 1994-2013, has opened a rare opportunity for a glimpse into her judicial mind.
Each judgment, of course raises its own peculiar point of law and interpretation of facts. As we peruse the judgments however, even innocuous statements and passing comments, (not to talk of final choice and decision of legal principles) allows the reader to gain valuable insight into the jurisprudence of Justice Phillips, what the learned editors of the book have aptly dubbed “Phillips Law”.
To present the judicial philosophy of Justice Phillips in easily digestible format, we have created convenient sub-hearings of discourse- Good Governance, Human Rights, Family Law, Customary Law, Contract and Tort. By “legal Philosophy” we mean “a consistent pattern of thought”, or reasoning on legal matters,” or jurisprudence”, or legal outlook.
Human rights
Human rights are those rights regarded as being fundamental to human existence. Sometimes they are viewed as “natural rights”. They are guaranteed in modern times in the Constitutional Law or Conventions of states. In Nigeria, they are contained in Chapter IV of the 1999 Constitution.
One or two judg-ments of honourable Justice Phillips may be sampled as representing her ideology of human rights.
In REVEREND DR. OLAJIDE AWOSEDO Vs. INSPECTOR GENERAL OF POLICE; ASSISTANT INSPECTOR-GENERAL OF POLICE (ZONE II); FIRST BANK OF NIGERIA PLC (2010) Case No 24, Landmark Judgements p.302.
The Applicant is a Director of a company which owed a large sum of money to the third respondent, (First Bank of Nigeria Plc) and which he had failed to pay back, to the annoyance of the bank’s officers. Several letters were written to the company demanding the repayment of the said debt but all the promises to repay the loan failed, and so, out of frustration the Third Respondent sought assistance from the Economic and Financial Crimes Commission (EFCC) and the Nigerian Police in order to recover this very large sum of money from the Applicant. The Applicant was then invited for questioning and he was made to give an undertaking to repay the debt. As the promised date of repayment drew near and with little hope of honouring the under-taking diminishing, the Applicant, anticipating further harassment by the Respondents applied to the court for the enforcement of his fundamental human right to liberty.
Observers will recall that this application came up at the height of the powers of the EFCC backed by Lamido Sanusi’s Central Bank of Nigeria (CBN) policy of aggressive recovery of “bad loans”. However, Justice Phillips did not allow her court to be caught up in the mass hysteria of that period. Ruling on the Application, the honourable court examined the power of the Police as stipulated in section 4 of the Police Act and boldly pronounced:
“The Police do not have a statutory duty to recover the money owed the bank. They can only investigate any allegations of a crime and prosecute where necessary”
Consequently, the court ruled: An injunction shall be and is hereby granted restraining the Respondents, their officers and agents and privies or otherwise howsoever from arresting, intimidating, molesting the Applicant in any manner howsoever or disturbing his privacy and business in respect of this transaction except in accordance with law”
We need to understand the philosophy that impelled Justice Phillips’ reaction. Loan transactions with banks are a contractual matter. Parties have freedom of contract. A prudent bank ought to have made appropriate arrangements to recoup its loans by due process in case of default. However, in Nigerian, corrupt bank officials usually grant huge loans without appropriate collateral for their personal consideration only to turn round upon default to use unorthodox methods to recover the compromised loans. Essentially therefore, what needs to be done is to clean up the banking system and weed out the bad eggs who abuse their position in this manner and not to ridicule the precepts of the rule of law by turning the police into a debt recovery agency. What emerges from the Court’s decisions is that Justice Phillips has a passion for strict adherence to the rule of law and will not brook any departure therefrom under any circumstances.
In AKIYODE VS TOBUN & 3 ORS (2001) Case 16 Landmark Judgments p.199. the Plaintiff’s late mother Alhaja Oshodi inherited from her maternal grandmother a vast area of land in Agidingbi which is the village where she lived and grew up. In 1969, the Lagos State Government published a Notice of Acquisition of the land in the Lagos State Official Gazette and subsequently acquired the disputed land for public purposes. The land was given to the second Defendant herein, the Lagos State Property Development Corporation (LSDPC), who in turn converted the area into an Industrial Layout and allocated plots to deserving members of the public. The 1st Defendant, armed with a Letter of Allocation from the LSDPC settled on the disputed land and forced the Plaintiff’s late mother, Alhaja Oshodi, out claiming that the land was his. The matter was reported to the police who could not resolve the matter, so Alhaja Oshodi then sued the 1st Defendant to court and the trial commenced before Balogun J. (now retired). She died before the trial could be concluded so her son, the present Plaintiff was substituted for her.
Justice Phillips gave judgment for the Plaintiff on the grounds that:
When an owner of property comes to this court and complains that there have been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right, I think that the case should be entertained sympathetically and that the status under which he is being deprived of his rights to property should be construed strictly against the local authority and favourably towards the interests of the Applicant …
Her ladyship then concluded that any Notice of Acquisition that does not state the specific public purpose for which the land is being acquired is null, void and of no effect. In our respectful view, these are indeed brave words based on clear thinking and a firm jurisprudential anchor. Attributes that have been the hallmark of Justice Phillips tenure on the bench mark that the second Defendant in this case is the LSDPC, a government agency where Justice Phillips had previously worked as a Legal Officer for ten years and rose to the rank of Secretary and Legal Adviser before her elevation to the bench. Well, that is the stuff of which Justice Phillips is made.
Our third sample of Justice Phillips’ human rights jurisprudence appears, at first blush, to be more ambivalent, particularly from the point of view of someone, like the author of this review, who professes to be a “human rights activist”. Please travel with me to the decision of Phillips in the Case of THE STATE Vs. SALISU ZUBERU AND SYLVANUS IDOKO (2004) Case No. 4, Landmark Judgements p.77. The accused persons were serving police officers who were on anti-crime duty at Ajegule on January 29, 1995. While they were on duty, they stopped and searched the occupants of a Peugeot 504 car. As the search was being done, one of the officers on patrol duty on that day, by name Corporal Salisu Salawu was allegedly shot by one of the occupants of the vehicle who then took flight with Salisu’s service rifle. As the corporal lay bleeding at the scene, the 1st Accused person, who was at the scene, “providing cover”, for the second accused person who was searching the occupants of the vehicle, then fired his riffle at the person who was fleeing with the corporal’s rifle and he dropped deed. The second Accused person thereafter recovered the rifle from him and then took his injured colleague to the hospital for treatment. The other occupants of the car were arrested and taken to the Ajeromi Police Station from where they were transferred to Adeniji Adele Police Station. The Adeniji Adele Police Station formation conducted their investigation and freed all the suspects.
After their release, the suspects briefed Counsel who then wrote a petition to the Inspector-General of Police alleging that the deceased, a trader, was the victim of police extra-judicial killing. The IGP instructed that the matter be investigated and in the end, the police officers were both charged with murder whilst the second accused person was in addition, charged with wounding Corporal Salisu with intent to cause grievous bodily harm.
As I read the facts of the case, my activist instincts were aroused. These recurrent incidents of “checkpoint killings” were becoming too rampant, with innocent citizens being shot by apparently trigger- happy policemen who then accused their victims of being “armed robbery suspects. This was clearly one of those cases, I initially thought. Thank God the victims’s relative petitioned the IGP who then instituted an investigation. And yes, the accused police officer then wrote confessional statements admitting the crime. Case closed, straight to the gallows with them! But not for Justice Phillips. She raised questions which the prosecutor failed to answer: where was the body of the alleged deceased? Where was the evidence that he died of gunshot wound? The witness who had claimed to be eye-witness to the killing by the accused police officer and who was one of the occupants of the Peugeot 504 later admitted that he had infact been locked up in the booth of police vehicle and only heard the gunshot and later saw the body of his colleague when they were subsequently taken to Ajeromi police station. These unanswered questions were enough to create “reasonable doubt” in the mind of Justice Phillips so the court discharged and acquitted the suspects.
After I had quelled my initial discomfort with this judgment, I re-examined the Justice’s position; yes, cases of extra-judicial killing by policemen during their “stop and search” operations were indeed one too many. Yes, the IGP himself had ordered an investigation and the accused police officers had allegedly confessed, but the Judge needed more proof to erase the doubts in her mind if she was going to sentence the policemen to death, whatever the public outcry might be. For her, the circumstantial evidence was not cogent enough and it was safer to exercise her discretion in favour of the accused police officers, for, as the legal maxim goes: “It is better for ten guilty men to be set free than for one innocent man to suffer”. Only a Judge with an abiding respect for human life; even the life of a possibly guilty accused, will deign to err on the side of caution.
Good Governance Ethics
The bane of the Rule of law in emerging Democracies has been an errant lack of respect for good governance ethics by those charged with public administration.
Justice Phillips has shown from her judgement that she is a stickler for the Rule of Law and Good Governance. In the case of AGORO –IYAJU & ANOR Vs. GOVERNOR OF LAGOS STATE & 4 ORS. (2003) – Case No. 11, Landmark Judgements p.154.
There was a dispute over the Chieftancy of Olu of Eganland, with various families claiming to be entitled to present candidates for the stool. The matter was referred to a Standing Tribunal which heard evidence from all the contesting families at the end of which the Fifth Defendant, a candidate from one of the contesting families was installed by the Alimosho Local Government. The Plaintiffs brought this suit for an order of Certiorari quashing the findings of the Standing Tribunal and a Perpetual Injunction restraining the Fifth Defendant from parading himself as the Olu Eganland.
The Applicants’ Counsel, who had earlier closed his case, had applied to the tribunal that he wished to call a further witness, but the tribunal had refused his Application. Justice Phillips held that the tribunal had thereby breached the tenets of fair hearing:
The tribunal is bound in the interest of Justice to hear whatever all the claimants before it have to say unless they formally withdraw from contention which was not the position in this case… this omission to my mind is a grievous one as it has the resultant effect of depriving the Applicants of the opportunity to put their own case forward in the important matter of the ascension to the throne of the traditional rulers of Egan, a town to which they belong and a stool to which they believe that they are entitled to ascend to.
The Justice Phillips therefore issued an order of Certiorari quashing:
“the entire proceedings, the finding and the recommendations of the Standing Tribunal of Inquiry into Chieftancy Maters in Lagos State in respect of the Bale of Egan in Alimosho Local Government of Lagos State. The White Paper on the Report issued by the 1st – 3rd Respondents (the Governor of Lagos State, the Attorney-General of Lagos State and the Permanent Secretary, Local Government and the Permanent Secretary, Local Government Administration, respectively) are hereby nullified and the named Officers are restrained from installing or giving instructions for the installing in any manner however of the 5th Respondent as the Olu of Eganland. A perpetual injunction is hereby issued on the 5th Respondent from parading himself however in any manner whatsoever as the Olu of Eganland”.
I find another case decided by Justice Phillips on good governance even more exciting and instructive. The parties to the case: ALHAJA J. ALMAROOF Vs. CHAIRMAN OSHODI/ISOLO LOCAL GOVERNMENT & 5 ORS (2008).
Case No 18, Landmark Judgements p.234. The Plaintiff is the Market Leader of Kairo market in Oshodi/Isolo Local Government Area of Lagos State. In 1996, she was appointed the Chairman of the defunct Lagos State Market Advisory Council, and in 1997 the Oshodi/Isolo Local Government appointed her as the Iya-Ija General and Chairman of the Oshodi/Isolo LG market Advisory Committee (MAC) which position she still holds.
However the claimant alleges that the 5th Defendant emerged to contest the title with her apparently with the support of the 2nd Defendant, Alhaja Abibatu Mogaji, who is the President of all the market men and women Associations in Lagos State and who was poised to award Certificates to the 3rd and 5th Defendants without recourse to the Claimant. This suit was to restrain all the Defendants from such a course of action. Against all expectation, Justice Phillips upheld the Claimant as the Accredited and authorized Market Leader and Chairperson of the Market Advisory Council of the Oshodi/Isolo Local Government Area.
Her Ladyship also issued an order of injunction restraining ALL the Defendants from usurping the functions of the Claimant in that office/position. Given the fact that 2nd Defendant was the mother of a former Governor and foremost politician in Lagos State, Asiwaju Bola Ahmed Tinubu, it is a tribute to the courage of Justice Phillips that she ruled according to her conscience.
Conclusion
There are many more accolades that we can shower on Justice Ayotunde Phillips, the Chief Judge of Lagos State, based on the excellent quantities exhibited in her landmark judgements, for example in the area of Customary Law (Case No. 25, page 303); on the Duties of Counsel to the Court (Cases 10 and 16); and on the Need to promote Arbitration (Cases 29 and 78). We have yet to delve into her numerous judgements on land disputes for which the city of Lagos is notorious.
All said, the taste of the pudding is in the eating. The landmark judgments of Justice Ayotunde Phillips is a compendium of intellectualism, astuteness and industry such that it could well be said to Justice Phillips, adapting the memorable words of Shylock to Portia in Shakespeare’s Merchant of Vence (Act 4, scene 1) abeit with a little bit of literary licence:-
“A Phillips come to judgement
Yea, a Phillips
O wise judge
How I honour thee”
