Late Justice Niki Tobi through the cases

It is easily the case, without exaggerating the context, that there is a striking semblance between Hon. Justice Niki Tobi’s (of blessed memory) style of setting out his judgments and the flourish exhibited in the judgments of the world-acclaimed English Judge, Lord Denning M.R (also of blessed memory).

Denning was renowned for opening his judgments with an arresting lyrical prelude that seemed ‘aimed’ at catching the fancy of many a reader (lawyers and ‘unlearned’ alike) from the very first faint of ink, and hold him, at the edge of his seat, spell-bound to the very end – till the very resolution of all issues arising in the judgment.

Justice Niki Tobi also penned his judgments, introducing the ‘discourse’ in an engaging manner not commonly seen around these parts, and somewhat reminiscent of Denning’s lyrical opening in Miller v Jackson [1977], QB 966. The judgments(of Justice Tobi) always went in logical sequence from the opening to conclusion, so that the mind of the reader could follow the progress of the arguments with ease. The facts, often as intertwined and engaging as the dispute before the court, were expressively told, engaging the reader’s rapt attention as he went along with it in a simple, lucid analysis of the minutest details. Take, for instance, his opening in Onagoruwa v I.G.P[1991] 5 NWLR [Pt. 193] 593 CA:

“The 1st appellant is a legal practitioner. He has his practice at No.96 Lagos Street, Ebute-Metta, Lagos. Like most persons of his societal status, he has a bank account. That Account Number is 4080. Like most legal practitioners, he has a separate Clients’ Account. That Account Number is 4570. Similarly, like most law firms, the Law Firm of Chief G. Ayodele Onagoruwa and Co. has a Chambers Account. That Account No. is 4425. It would appear that the 1st appellant was at the material time, a legal practitioner in the Law Firm of Chief G. Ayodele Onagoruwa. So also is the 2nd appellant. As a matter of fact, they instituted the action which is the subject of the appeal “for themselves and on behalf of the Law Firm of Chief G. Ayodele Onagoruwa and Co.”

“Let me now take the facts of the case. In order to really appreciate the basis of the action in the lower court, it is necessary to go to the beginning of the matter. It all started between the 1st appellant and one Alhaja Tayibat Adeniyi. She was a former client of the Law Firm of Chief G. Ayodele Onagoruwa and Co. She lodged a complaint on 8th April, 1988 with the Lagos State Director of Public Prosecutions, who at the material time, was Mr. Abiodun Kessington. He is now a Judge of the High Court of Lagos State. In the complaint, Alhaja Adeniyi made allegations of fraud against the 1st appellant.”

In Adesanoye v Adewole[2006]14 NWLR [Pt.1000] p242 at 260, Justice Tobi (JSC), in the opening paragraph, stated matter-of-factly:“The Osemawe of Ondo Chieftaincy Stool is the centre of this appeal. Sometimes in August 1991, the stool became vacant following the death of the occupant, His Royal Highness Oba Itiade Ade Kolurejo. The common Nigerian expression is that he has gone to join his ancestors, and so let me use that expression too, although I do not know where the ancestral home is. It looks to me like a bandwagon expression as in paragraph 5 of the amended statement of claim and so I join the bandwagon. Nobody wants to say that an Oba is dead, just like that. To some, it is a taboo to say that.
That brought about the litigation. It is a common occurrence in Nigeria, in contemporary times. We fight for chieftaincy stools, at times when we know as a matter of fact and tradition that we had not the fortune to be born into royalty. Nigerians have a way of pushing themselves to things that have some reputation and fame and these days one green area, if I may use that expression, for want of a better one, is the chieftaincy stool. This is one of such fights. It started in 1991, some fifteen years ago.”

Just as with Lord Denning’s, it is not only for the clarity of exposition in the prose that Justice Tobi’s judgments standout. There is depth in the form expressed. His quality and training as a law teacher easily have a place in his judgments. Little wonder our law reports are dotted with fine imprints of His Lordship’s scholarly disposition and analytical rigour in the judgments he handed down. It was therefore not out of place when His Lordship’s brother Justices, citing with approval his scholarly contributions, often took time to commend‘the erudite Scholar-Justice’ (per Denton-West JCA in Mustapha v Suntai [2013] LPELR-22109 (CA), for the ‘industry in his researches …. unaided by submissions of counsel.’ (per. Ubaezonu JCA in Nwokedi v. U.B.N. Plc. [1997] 8 NWLR [Pt.517] 407 at 422; as evident in his judgments, often delivered in“his usual picturesque language” (per Nzeako JCA in Awudu v. Daniel [2005] 2 NWLR [Pt.909]199at 222).

Some of the notable cases in which Justice Tobi wrote the leading judgment and brought his great learning to bear are: Mojekwu v Mojekwu [1997] 7 NWLR [Pt. 512] p.283 (in which the Court frowned at, and pronounced as unconstitutional any form of societal discrimination on grounds of sex); Odutola v Papersack [2006] NWLR [Pt. 1012] 470 (a most incisive, and exhaustive analysis of the attendant legal incidents to ‘tenancy at will’); In RE: Olafisoye [2004] 1 SC [Pt. II] 1 ; A. G Abia & 2 Ors v A.G Federation & 33 Ors.[2007] 6 NWLR [Pt.1029] 200 (espousing on federalism); Newswatch Comm. Ltd v Atta [2006] 12 NWLR [Pt.993] 144 (on the principle of fair hearing, and ‘arrest’ of judgment);and indeed, so many more. His concurring opinion in the several others he participated in, often helped to put in perspective the position in the lead. It is in this context that this writer is of the view that the seeming conflicting positions (of the apex court) in the 2 oft-cited decisions of the Supreme Court on ascertainment of jurisdiction of the Federal High Court with respect to disputes involving the federal government or any of its agencies– that is, NEPA v Edegbero (2002) 18 NWLR 798 79 and Onuorah v. Kaduna Refining & Petrochemical Co. (2005) 6 NWLR (Pt. 921) 393, is best appreciated. Justice Tobi was privileged to have sat on both panels and his concurring opinions in both decisions, said to be diametrically opposed to each other, offer an illuminating insight as to the ‘divergent’ positions taken in the lead, in the two cases. But that is another matter altogether, and outside the remit of this tribute, which inevitably brings to the fore what arguably were his ‘flaws’.

As with everything human, he was flawed a few times in his affecting erudition. One instance which readily comes to mind is his ‘patriotic zeal’ in calling for the Nigerian judiciary to adopt ‘home-grown jurisprudence’ (not His Lordship’s exact words). The story goes thus: Justice Tobi seemed to have ‘an axe to grind’ with ‘transmuting’ English rules and practice in interpreting Nigerian laws. Even as he appreciated ‘our jurisprudence, as an off-shot of the common law tradition of England‘ (Onagoruwa v IGP, Supra at p.640) he wrote strongly against reliance on English authorities in at least two notable cases: Chigbu v. Tonimas Nig. Ltd [2006] 9 NWLR [Pt.984] 189 at 213 and Carribean Trading & Fidelity Corporation v NNPC [2002] 5 SC [Pt. 1] p.21. In Carribean Trading v NNPC, Tobi JCA (as he then was) wrote in his characteristic flourish: “English is English. Nigerian is Nigerian. The English are English. So also the Nigerians are Nigerians. Theirs are theirs. Ours are ours. Theirs are not ours. Ours are not theirs. We cannot therefore continue to enjoy this borrowing spree or merry frolic at the detriment of our legal system. We cannot continue to pay loyalty to our colonial past with such servility or servitude. After all, we are no more in Slavery.”

On appeal to the Supreme Court, Ayoola JSC (with whom, Mohammed, Iguh, Katsina-Alu and Ejiwunmi JJSC concurred) pointed out the error in that nationalistic fervor:“Nigeria does not cease to be Nigeria because it has chosen a particular mode for ensuring the procedural completeness of its legal system, just as Nigerian does not cease to be Nigerian by choosing the English language, in which, incidentally, the learned Justice had flawlessly expressed himself, as the language of official communication. Our legal system draws much of its strength from being part of a common law system having its roots in the past while remaining organic. Our efforts should be directed to how best to build on the legacy of that great system of laws rather than to a denigration of the past we have built on and are building on. For my part, while this appeal will be dismissed, I do not endorse the view of the court below in the passage last quoted from Tobi, JCA’s judgment which will sentence our legal system to unnecessary parochialism”.

The gist of this writer’s piece being that Justice Tobi unreservedly reserved the right to be wrong, and human, in some of his well-articulated decisions. Thankfully, these were few and far apart (if the fact that just a handful of his decisions were upturned on appeal, is any indicator), and do not in any way, and by no measure, detract from the merits, and substance of His Lordship, the Honourable Justice Niki Tobi’s immense contributions to the development of the law in this country. In all, he was a judge’s judge. A brilliant mind, forthright Judge. May his beautiful soul rest in perfect peace.

Kuti is a Partner in the commercial law firm of Perchstone & Graeys