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With tears in her eyes or there must be an end to litigation

By Kole Omotoso
22 March 2020   |   3:34 am
Let's not bother with the journalistic verbosity of “with tears in her eyes.” Where else can tears be except in the eyes? As for the alternative title of the column

Let’s not bother with the journalistic verbosity of “with tears in her eyes.” Where else can tears be except in the eyes? As for the alternative title of the column (you must have noticed that Ghanaians preface all their alternatives with “as for so and so”), it would seem to be a topic for undergraduate Moot Court Debate. Only a judge who pronounces finality on all cases could have made the statement. For a practising advocate, there is no end to litigation until she\he wins or a Judge of the Supreme Court calls finality on the case that occasioned the litigation.

Supreme Court Judge Justice Amina Adamu Augie had tears as she read the punitive fines imposed by a seven-justice panel on our best and brightest Aare Afe Babalola and Chief Wole Olanipekun. It was also in the process of reading the Supreme Court judgment that she also made the abiding statement: “THERE MUST BE AN END TO LITIGATION.

The judgment was passed on applications filed for the review of a previous judgment of the Supreme Court on 13 February 2020, which overturned the APC’s victory in the last governorship election in Bayelsa State.

“With tears in her eyes, the justice regretted that ‘very senior’ lawyers were responsible for filing the applications. The applications amount to an invitation for the apex court to sit in appeal on its own judgment in violation of the Constitution. Justice Augie held that “it would amount to violating the finality of its judgment if the applications were granted.” She said granting the applications would open a floodgate for the review of decisions of the Supreme Court. There must be an end to litigation, she said adding that the decision of the Supreme Court is final for ages in a matter and only legislation could change it.”

The panel of the apex court led by Justice Sylvester Ngwuta described the applications “as vexatious, frivolous, and constituted a gross abuse of court process.”

Whatever the legalese might be the esteemed lawyers could have argued that they were playing their roles as advocates while it was left to the panel of Justices to play their roles. Which they have played to their satisfaction.

Specifically, they were arguing that the deputy governor is the offender and the governor should not share in the prescribed punishment. But the counter-argument which applies, in this case, is that they are elected as a unit, not as separate individuals.

On a personal note, I have always wondered when a Nigerian judge will take on these senior lawyers of Nigeria in terms of their practice of helping accused persons “to evade the process of the court”. Senior Advocate of Nigeria SAN is a prestigious accolade given to lawyers after at least ten years of distinguished legal practice. The awardee is admitted to the Inner Bar while the junior advocates remain in the Outer Bar. It was first awarded in 1975 and the ten best and wealthiest lawyers in Nigeria are all Senior Advocates of Nigeria. They are all Yoruba from the old Western Region except one from Kogi State.

Personally, in spite of my respect for Aare Afe Babalola and Wole Olanipekun, I share the tears of Justice Amina Augie. How many witnesses have passed away after years of waiting to testify in corruption cases? How many cases of corruption accusations have to self-destruct after years of evasion of court appearance?

Of course, there are reasons, which can keep an accused from appearing in court. First and foremost is an admission of guilt payment of fine. The accused does not have to appear in court if he or she pays an admission of guilt fine. Another reasonable excuse is ‘being sick in hospital’. This is the most famous and most effective ‘reasonable excuse’ for allowing many accused persons ‘to evade the process of the court’. Jacob Zuma, the former president of South Africa is using illness to avoid appearing in court to face some 16 counts of corruption, racketeering, fraud and money laundering. He is accused of accepting 783 payments. Jacob Zuma denies any wrong doing. But he wont come to court to defend his name.

As for the reasonable excuse of being sick in the hospital, most human rights advocates consider it a dupe of the courts. The most famous user of being too sick to stand trial is General Pinochet of Chile. There is that famous cartoon of Pinochet in a wheel chair delivered to the steps of the plane. He gets up and takes the steps of the stairs two at a time into the plane! His medical report had said that he suffered aching pain in both buttocks, needed help to stand upright, was unable to dress, unable to shave without cutting himself. The report also predicted further deterioration in both physical and mental condition was likely. A Chilean naval psychiatrist coached him on how to fail the medical test so as not to be extradited from Britain to face trial in Spain. His daughter Jacqueline commenting on his good health by the time he arrived in Santiago said: “Bit by bit he recovered while he flew.

On arrival, reports the media, he beamed with pleasure. The world watched as a man supposedly too bill to stand trial walked steadily across the tarmac, greeted his children, embraced his brother officers and raised an arm in a triumphant salute.”

Who will share the tears of Justice Amina Augie with me? How do we continue to live in a society where we do not have any point of final relief? Ti a ko l’eni ti a nfejo sun: we have no final arbiter. Where every litigant must win or else there shall be anarchy? Traditional elders abandon decorum and resort to pugilism in open court. Where did you hear of obas exchanging blows ni gbangba ita? And the modern system of justice in a democratic openness fails because it fails the test of finality.

If there is to be an end to litigation litigants must accept that in a case of two fightings, someone must win and someone must lose. Both must accept the finality of the judgment passed by the Supreme Court.

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