My dear Dr Cho,
We indeed had an interesting conversation yesterday night which, if we had exhausted our argument, we would have seen various perspectives, for, as it were, the law is an ass.
As you well know, I have been a deft supporter of Atiku, but I am also mindful of the principle of substantial justice in my assessment of the ruling of the Presidential Election Tribunal on the issue of qualification.
I take due cognizance of the particular pleas of Atiku on Buhari’s qualification, especially with the seeming illogics and apparent seeming lies in his submissions to INEC, but I also take due cognisance of the very duty of the tribunal or court to determine the very basic question: Is Buhari qualified to contest the election by virtue of his educational under the provisions of our constitution and the Electoral Act.
While we may insist that the tribunal ought to address the matter STRICTLY along the line of the submissions of Atiku with regards to the seeming irregularities in Buhari’s affidavits on oath and documents presented to INEC, I strongly submit that the court, being no slave to either parties, and for the proper carriage of justice, reserves the right of its wisdom to explore the matter beyond what the plaintiff’s very specific argument in order to convey substantial justice.
This position has severally been stated in various rulings of the Supreme Court both in Nigeria and other climes.
Kindly see the following for your appraisal:
- Definition of Substantial Justice: Justice of a sufficient degree especially to satisfy a standard of fairness. Justice administered according to the substance and not necessarily the form of the law.
This indicates that the learned and wise judges can indeed go beyond the lines of what the counsels plead.
- Oliver Wendell Holmes: ‘The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
- Lord Denning: “My root belief is that the proper role of the judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule, even to change it, so as to do justice in the instant case before him.”
- In Psychiatric Hospitals Mgt. Board v. Edosa, Justice Wali of the Supreme Court held as follows:
“The important thing in dealing with a trial of any case be it civil or criminal, is to ensure that the procedure of fair hearing is strictly complied with. If that is satisfied, it does not necessarily matter whether the correct section of the law making such a provision is correctly cited. The courts are now more concerned with doing substantial justice than clinging to procedural technicalities and therefore concern themselves with the substance and not the form”. - Pam v. Mohammed, Justice Niki Tobi of the Supreme Court held as follows:
“The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done…
It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
Same Niki Tobi also held in Atiku Abubakar v Yar’ Adua that:
“It is a known fact that blunders must take place in the litigation process and because blunders are inevitable it is not fair, in appropriate cases, to make a party in the blunder to incur the wrath of the law at the expense of hearing the merits of the case.”
- In Inakoju v Adeleke, the Supreme Court also held as follows:
“For quite some time now, this court has moved from the regime or domain of doing technical justice to the regime or domain of doing substantial justice. This is in keeping with the jurisprudence of the wider world and its legal system. The need for courts of law to do substantial justice becomes more imperative when considering the provisions of the Constitution, the fons et origo of any democracy…Good law, in my opinion, must have a human face. Good law should not patronise technicalities that will give rise or room to underserved victories in litigation. Good should discourage technicalities.” - In Akpan v. Bob, the Supreme Court also declared:
“Technical justice is no justice at all and a court of law should distance itself from it. Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, the courts should ignore mere technicalities in order to do substantial justice.” - In Mogaji v. Odofin, Fatayi-Williams also contended of the side of substantial justice in that none should be denied his due on grounds of technical failure:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiffs. If not, the plaintiff claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non- suited.
In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:-
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”
“It is also a very delicate one, which only the judex can arrive at under the auspices of law and God the creator. He cannot brush aside procedural and adjectival laws and niceties, yet, at the same time, he must do substantial justice according to law and the Constitution!
- As Justice Onnoghen once put it:
“It is important to know that justice is a delicate, sensitive and highly formal activity involving decisions arrived at after very tenuous and rigorous process of critical thinking. It is a product of the mind, which is clear and sound, unprejudiced and incorruptible. One which stands on high moral and ethical grounds yet with strong legal and juristic authority which can stand the critical test of legal formalism. It therefore behoves us, as the last bastion of the common man to always exercises this noble duty with utmost care and the fear of God.”
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My Take:
My contention is that while the anomalies in Buhari’s presentations are noted and that Atiku is not in any wrong in pleading them, the judges have a duty to weigh them against the very provisions of the constitution and the electoral act, to determine in golden truth, if indeed, Buhari does has not attended education enough to the basic provision of the constitution and electoral act to qualify him to run.
Relying only on the deficiencies or anomalies in his presentation pleaded by the plaintiff, even if true, may not be enough to fully declare that he cannot read nor write or that indeed he has not attained any education to the equivalent of a secondary school or even above. For, if the judges so hold, it will be obvious that he was disqualified mainly on technical ground and not be truth.
I have also stumbled on an address to lawyers by a learned silk which supports this position as you will see below:
“It must be kept in mind that substantial justice must prevail . When there is a strong showing that grave miscarriage of justice would result from the strict application of the Rules, this Court will not hesitate to relax the same in the interest of substantial justice. The Rules of Court were conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise,courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering real justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on the balance, technicalities take backseat against substantive rights, and not the other way around.
“But what is technicality? In OSAREREN VS. FRN(2018)10 NWLR (PT. 1627) 221 @ 226, RATIO 12, the Supreme Court defined thus: “Technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. In other words, it arises when a party relies on or holds tenaciously unto the rules of court with little or no regard to the justice of the matter.
“As far as such a party is concerned, the rules must be followed to the last sentence, the last word and the last letter. The party emphasising technicality has little or no regard to the justice that would be sacrificed or the injustice that would be caused to the opponent”
“In FRN VS. DAIRO (2015) 6 NWLR (PT.1454) 141@ RATIO 13, the court held “Rules of court are meant to be obeyed. However, obedience to rules must not be slavish to the point that justice in a case is destroyed or thrown overboard … Therefore, if in the course of doing justice, some harm is done to some procedural rule which hurts the rule, the court should be happy that it took such line of action in pursuance of justice”.
“Further, when we import legalism into the interpretation and application of rules or a particular legislation, we are inadvertently converting our law courts into workshops of technical justice and our judges into judicial technicians,a situation which certain will make a mockery of our trade and the very pillars upon which our legal order, profession and society stands. This is perhaps why, in EZE VS. FRN (2017) 15 NWLR (PT. 1589)433@445 RATIO 10, the Supreme Court sounded it loud and clear, “justices of the Supreme Court are not judicial technicians and the Supreme Court is not a workshop of technical justice”.
“Finally, in WASSAH VS. KARA (2015) 4 NWLR (PT.1449)374 @385,RATIO 13,the Supreme Court per BODE RHODES VIVOUR J.S.C declared “Law is blind. It has no eyes. It cannot see. That explains why a statue of a woman with her eyes covered can be found in front of some high courts. On the contrary, justice is not blind. It has many eyes,it sees, and sees very well”.
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My Take:
If the minimum qualification to run for President, as provided in the constitution and Electoral Act, is ability to read and write or having attended a primary school or a secondary school or its equivalent, I contend that the law cannot be blind to the fact that, for all intents and purposes, Buhari, even if only by virtue of his military courses, have met and exceeds the minimum qualification. Therefore, we nor the court cannot, in utmost good conscience and wisdom, say he does not qualify. It would certainly amount to miscarriage of justice if the court holds differently even in the face of the pleas of anomalies, errors or perjury in his submissions to INEC. For, we cannot insist on the court to base its decision only on our plea as it reserves the right to assemble the whole corpus of legislations and provisions on the determination of qualification to arrive at a sound, substantial and justiciable decision. And that is fair.
I conclude by pointing out that we should not be hasty to hold that the position of the Tribunal is outside the precincts of acceptable jurisprudence merely for the politics of it, for there are strong grounds in legal precedents.
High regards bro.
Fred Edoreh
