X-Raying The “BUGA” Controversy And The Indecent Attack On Supreme Court
By Abdulrasheed Ibrahim, LL. M, Notary Public
Sometimes I keep wondering why some of our colleagues like engaging in sentiments rather than facing the fact. The Election Petitions Tribunal on the Osun State Governorship has coming up with its judgment and by the position of the law any party that is aggrieved by the judgment should proceed on appeal to contest it. The remarks made ( “The second respondent cannot ‘go lo lo lo lo’ and buga won’ as the duly elected governor of Osun State in the election conducted on the 16th day of July, 2022 ” ) in the majority judgment has been generating unnecessary controversy on the ground of whether it was proper for the judge that read the majority judgment to have used that words. I read an interesting article by a learned colleague arguing that it was not proper, that although such is allowed in other jurisdictions such as America but such is not allowed in our jurisdiction here. The author placed reliance on Rule 3 of the Code of Conduct For Judicial Officers, 2016 which I strongly believed my learned colleague misconceived. In first disagreeing with that opinion, I stated thus :
“While commending the author (https://thenigerialawyer.com/Propriety-or-otherwise-of citing-lyrics-of-songs-in-judgments-and-its-impacts-on-legal-profession-in-Nigeria) for this interesting piece, to some extent, I disagree with his position. I wrote recently about the late Oputa,JSC of blessed memory referring to him as ‘A Stylist Jurist’ and as follows: ‘Many great jurists have passed through the Supreme Court of Nigeria and they still speak to us till date through their powerful judgments left behind despite the fact that they are not longer physically in our midst. Oputa, JSC belongs to the class of jurists that when you are reading their brilliant judgments you will be happy that you belong to the legal profession. Justice Muhammed Bello , a former CJN once said this about Oputa, JSC : ‘For the style of his judgments, I nicked-named him “Socrates” of the Supreme Court. His quality as and training as a teacher is always embodied in his judgment .He would first pose a question on the issue and would proceed to answer the question logically, philosophically and legally…”
Some lawyers have objected to my position by arguing that the using of the word “buga” in the judgment in question cannot be placed on the same pedestal with those of Oputa, JSC. According to a Learned Silk:
“Whilst not commenting on the merit or otherwise of the judgment and the conclusions therein ,I do not agree that the slangs or musical lyrics reference are in the class of inspirational , philosophical and virtually arcane judgment style of the legendary Oputa ,JSC and those in the inimitable class of His Lordship. Query- If a lawyer made or makes such lyrical or slang references in his brief of argument or written address to the Supreme Court (or other superior courts of record) and as citation for the reference, directs the Supreme Court to ‘see (name of artiste and title of song)’, what will be the likely reaction of the Supreme Court in at least 7 out of 10 instances if the court decides not to ignore the submission”
Honestly I like the above QUERY in the objection, and before answering this query let me add another question asked by another respondent to the debate before going ahead with my answers. The other question was : “ The important question to be asked is what is the relevance of the Judge’s music reference to the case in that judgment ? Did the music refer to arise as part of the issues submitted before the tribunal?”
In answering and with due respect to the first query, I want to submit that the issue in contention is the Obiter in the Judgment and not Obiter in the brief of argument. It is the brief of arguments that result to judgment of the court after adoption of same by the parties before the court. I believe we do not need to go back to the law school to know what OBITER and RATIO are all about. While RATIO can be appealed against, the OBITER cannot be appealed against. Although I still maintain the position that if the appellant want, they can make it a ground of appeal in the instant case and let the appellate court rules and makes further pronouncement on that. To the best of my restricted knowledge of law , I believe the law is settled that an OBITER is not appealable.On the second question, I submit that the remark or pronouncement in an OBITER needs not be an issue before the court,before it can be made because it is what the judge says in the passing that does not affect the RATIO of a decision. BELGORE, JSC (later CJN) made the point clearer in the case BUHARI & ORS Vs. OBASANJO & ORS (2003) LPELR 813 (SC) when he said :
“Those who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority; they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points, though not in issue or necessary to the case before him; this makes obiter dicta not to have a binding effect or weight on the case.”
It is a fact that one of the ways to identify the brilliance of a judge is through his judgments. That was why I earlier talked about the class of Oputa, JSC. Our jurists in this country particularly those at the Supreme Court have been rated among the best in the world. As a student of literature in English, I love seeing judges playing with words in their judgments so as not to make it boring. A good writer or judge must be able to educate , inform and entertain his readers when his book or judgment is being read . Just try to pick up a copy of James Hardly Chase or our own Chinua Achebe’s novel or any judgment written by the likes of Oputa, Eso, Bello or Niki Tobi , JJSC among others ,all of blessed memory or even that of the great English Jurist, Lord Denning who said in his book THE FAMILY STORY that : “Judges do not speak , as do actors, to please .They do not speak as do advocate , to persuade. They do not speak , as do historians, to recount the past .They speak to give judgments. And in their judgments you will find passages which are worthy to rank with the greatest literature which England holds.”
I was not without a supporter when the argument was raging on a particular lawyers’ whatapp ground, as a Learned Silk came to my aid by saying:
“My dear brother , judges have been doing ‘ntoi’ for a long time .One of the greatest exponents of this art was the Late Honourable Justice Pats-Acholonu .In Ezeana V. Attah (2004) LPELR -1198, this is what he said to an allegedly jilted lover who lost his property to his estranged girlfriend:
‘In fact , this is case that the respondent should have spared himself the agony of going through the court processes .For him, when the going was good he lavished love (I imagined it was reciprocated), money and eventually landed property on the appellant. When the tide turned, he fell back on non-existent agreement to marry and urged the court to go extra mile of pronouncing the existence of a resulting trust. I refused to lend hand to assuage the feelings of a lover whose romance went away .The love that once bound these two people and now got frosted can be likened to the verse xxxv of Shakespeare ‘Sonnets’ a sort of lamentation, and also verse 1 of ‘Passionate Pilgrim’ .Thus we have in this case so much love and then so much pain. It is the way of the world.’ In the final result I allow the appeal and set aside the judgment of the court below and affirm the judgment of the High Court. I abide by all the consequential orders in the leading judgment.”
That was erudite Pat-Acholonu, JSC of blessed memory. If one may ask, is Sonnet of Shakespeare part of the issue before the court. No, it was alluded to in the judgment to make it very interesting. That was a typical example of what Lord Denning referred to as “….In their judgments you will find passages which are worthy to rank with the greatest literature which England holds”.
Let us consider more of such passages in the judgment of our great jurists of blessed memories. In the case of Adesanya Vs. President of Nigeria (1979-81) NSCC 146 at Pg. 157, FATAYI-WILLIAMS, CJN in the judgment talked about “…a multi-ethnic society and a written federal constitution, where rumour-mongering is the pastime of the market places and the construction sites…” . In the case of Caribbean Trading & Fidelity Corporation Vs. Nigerian National Petroleum Corporation (2002) 5 SC (Pt. I) at page 21, ,Niki Tobi, JCA (as he then was) made the following remark and had issue with the Supreme Court on what his Lordship was driving at : “English is English .Nigerian is Nigerian. The English are English. So also the Nigerians are Nigerians. Theirs is 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”
We can go on and on to cite severally beautiful passages from the judgments of our great jurists to further buttress the point that when a judge is writing his judgments he is at liberty to go on voyage of discovery of words,phrases, proverbs and other idiomatic expressions by employ them in his judgment without such discretion being questioned. If one may ask again : If the “Buga” referred in the Tribunal’s Judgment is condemnable, will those flying that argument also condemn the well respected Bishop Matthew Hassan Kukah for recently dancing to “Buga music” at his 70th Birthday Ceremony ?
INDECENT ATTACK ON THE SUPREME COURT
I was seriously taken aback by the recent missile threw at the Hon. Justices of the Supreme Court by one Professor Farooq Kperogi who was purportedly reacting to the decision of the court in case involving Dr. Ahmad Lawan and another politician, Mr. Bashir Sheriff Machina. As a citizen of Nigeria, there is nothing bad in criticizing the judgment of any courts including that of the Supreme Court which is the Apex Court in Nigeria but going to the extreme of abusing and attacking the personalities of the judicial officers involved in the performance of their judicial duties is more banditry and irrational than the act being condemned. How can a person that claims to be a professor of journalism or so could be so crude in his approach and methodology under the false impression of exercising his freedom of speech.
I have had occasions where I disagreed with the positions or decisions of courts including the Supreme Court, but that does not give anyone the right or the audacity to resort to cheap blackmail because that person want to settle scores. How can a decent and honest Professor resorted to the use of words and statements such as : “ The Nigerian Supreme Court is straight-up the most hopeless Supreme Court in the history of the world’s supreme court.” or “It’s a blatant case of justice for sale. Nigeria’s Supreme Court is , without a doubt , a rotten gaggle of useless, purchasable judicial bandits. The highest bidder gets their judgments.” With these kinds of statements coming for a person that claims to be a professor of journalism, I am of the view that his professorship is questionable. Is there nothing like Ethic, Courtesy and Reasonable Methodology in the training of journalists in journalism? The Nigerian Union of Journalists (NUJ) has the duty to continue give ethical and methodology training to her members including those that claim to be professors of journalism.
Has the said self-acclaimed Professor of journalism read the entire judgment in question to know the reasons for the judgment of the court to justify his indecent and irrational position? Has he any concrete evidence to prove his allegation of “ a blatant case of justice for sale.” ? If he has, I challenge him to bring it forward as that will greatly assist the country to fish out the bad eggs in our judicial system. In a situation where you have a judgment, where all the judges or justices are not unanimous in their decisions, which of them will you say or accuse of receiving bribe and which one of them did not? There is nothing more stupid and chidish than making allegation without supporting it with concrete evidence. Can Farooq Kperogi describe any judgment he does not like in the court of country he resides, the way he described our own apex court? Please let those who are very close to him bring this message to his attention.
If one must say, this is a classical example of the Supreme Court being made a scapegoat for the offence or otherwise of other if it can be so called. What will Farooq Kperogi say about the politicians that engage lawyers to file action or appeal in court? What will he say about the lawyers that are being paid professional fees to file cases in court whether such have merit or not? I recently asked a question on whether lawyers are practising law with conscience. There is nothing more injustice of the highest order on the part of Farooq Kperogi for him to have condemned the Supreme Court and remained mute on the politicians and their lawyers that moved the courts to perform their judicial duties. There is no way a court can turn its back to the parties that place their grievances before it. The case must be determined in one way or the other.
Having said this, the courts and the Supreme Court inclusive this time around need to engage themselves in the act of self-appraisal and self-examination to see if there is anything going wrong in our judicial system. The judgments that emanate from our courts must be those that will stand the acid test of time and can pass the reasonable man test as once observed by the great Lord Denning in the case of Metropolitan Properties Ltd. Vs. Lannan (1969) 1 QB 577 when he said that : “ Justice must be rooted in confidence and the confidence is betrayed when right thinking people go away saying the judge is biased.”
NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.
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