Hon. Justice Idris Legbo Kutigi, CJN (Rtd.) was on Monday, March 3, 2014 rightly appointed the Chairman of  the National Conference being convened by President Goodluck Jonathan. He was the  Chief Justice of Nigeria (CJN) between January 30th, 2007 and December 30th, 2009. He was appointed a High Court Judge in Niger State in 1976, elevated to the Court of Appeal in October 1980, and appointed to the Supreme Court in 1992. He was, thus, a Justice of the Supreme Court for fifteen years before being appointed as the CJN by President Olusegun Obasanjo.

As the CJN, Kutigi was the head of the Nigerian Judiciary, the third arm of government; the head of the Supreme Court of Nigeria (SCN), the final court of appeal; the Chairman of the National Judicial Council (NJC);  Chairman of the Federal Judicial Service Commission (both established pursuant to Section 153 of the Constitution); and the Chairman of the Board of Governors of the National Judicial Institute, established by the National Judicial Institute Act, Cap N55, Vol. 11, Laws of the Federation of Nigeria, 2004.

In these capacities, Kutigi, CJN, amongst other functions, presided over the SCN, constituted panels that heard and determined cases under the appellate and original jurisdictions of the SCN; he chaired the FJSC’s advisory work on nominations of persons for appointment to certain judicial offices, and their  removal from such offices,  including the offices of all justices of Court of Appeal and the SCN; he chaired the process of recommending to the appropriate authorities the appointment and removal of judicial officers into and from judicial offices and the process of generally exercising disciplinary control over holders of such judicial offices; and he superintended judicial activities relating to the promotion of efficiency, uniformity and improvement in the quality of judicial services in the superior and inferior courts, including continuing education for all category of judicial officers and organizing conference for all Nigerian judges.

For these duties to be successfully discharged, robust  legal knowledge, industry, experience, discipline and integrity are required. These sterling qualities were exhibited by the Jurist during his judicial career.

Even when his unprecedented swearing in of his successor, Hon. Justice Aloysius Iyorgyer Katsina-Alu as CJN, during the presidential succession crisis in Nigeria, arising  from the illness and eventual death of President Umar Musa Yar Adua, became very controversial, Kutigi, CJN still left office with his integrity intact. Reserved  but credible. Quiet but wise. Of the establishment but decent. And conservative but principled. While he was the CJN, he had the rare courage  to publicly and sternly decry the practice of retired justices of appellate courts, including a former eminent Supreme Court Justice, serving as “consultants” to election petitioners and their lawyers, thereby unconscionably becoming compromise clogs, derailing fair and just determinations of election disputes at election tribunals.

The Retired CJN understood that  the independence of the Judiciary  was central to the operation of the rule of law and the smooth functioning of the presidential system of government. Through his various judgments (leading, concurring and dissenting), while on the Supreme Court Bench, Kutigi, J.S.C ( and later CJN)   amply demonstrated that he was  a jealous guardian of the independence of the judiciary and an ardent upholder of the rule of law.  He never hesitated, in his judgments, to dissent from the majority when he was convinced that it was necessary to do so. This rational and courageous independent-mindedness is what is needed to strengthen the independence of the Judiciary and its capacity for effective administration of justice. We cite two examples of this exhibition of independent-mindedness below.

In  the case of Chime v. Ude (1996) 7 NWLR (Pt. 461) 379, the Supreme Court suo motu dismissed the appeal of the appellant in chambers for want of prosecution under the provisions of Order 6 Rule 3(2) of the Rules of the Supreme Court.  When that appeal was dismissed on 8th March 1995, the appellants had defaulted in filing their brief of arguments, which ought to have been filed on or before the 14th of March 1994, for a period of one year.  Upon dismissing the appeal, as aforesaid, the appellants, as applicants on 6th November, 1995 filed an application before the Supreme Court seeking to set aside the order of the Supreme Court, dismissing the appeal, and restoring same to the Court’s cause-list.  In determining the application, the Supreme Court held, by a majority decision of 6 to 1, Kutigi J.S.C dissenting, that the Supreme Court, based on the principle sit finis litium ( there must be an end to litigation), has an inherent power to strike out any proceedings for want of prosecution, an inherent power given constitutional force by Section 6(6)(a) of the 1979 Constitution and strengthened by Order 6 Rule 3(2) of the Supreme Court Rules, which provides for a dismissal rather than a striking out order.

The Supreme Court held also that it is settled practice that it has no jurisdiction under its Rules of practice, the Supreme Court Act or under its inherent jurisdiction to re-enter(re-list) an appeal, which is dismissed under the provision of Order 6 Rule 3(2) for want of prosecution; that under such circumstance the dismissal is final; the appeal cannot be re-listed except the court acted in error, for example where there is a pending application for extension of time to file brief of argument at the time of the dismissal of the appeal in chambers.

In the Court’s judgment, the non-notification to a party that an order of dismissal was to be made, pursuant to Order 6 Rule 3(2) did not amount to breach of right to fair hearing.  At pages 421 – 422 paras. H-D of the Report, Uwais, CJN stated that: “With regard to whether the court has the power to deal with the appellant’s default suo motu under Order 6 Rule 3(2), I think, there cannot be doubt about that whatsoever.  The court has a duty to do away with the congestion of cases filed before it, particularly where those cases are frivolous and are intended to merely overreach or deny the respondent the enjoyment of the fruit of the judgment given in his favour by the lower courts or court below.  The golden rule is that justice delayed is justice denied.  I, therefore, see nothing wrong or unconstitutional in this court invoking its inherent jurisdiction to deal with such infractions.”

In dismissing the application to re-list, all the Justices in the majority underscored the issue of inordinate delay in the prosecution of the appeal.  Ogundare J.S.C (of blessed memory) stated at page 417 paras. F-G of the Report that “the appellants in the present proceedings showed such a complete apathy to the prosecution of the appeal as to amount to an abandonment of it.  They received the record of appeal and did nothing for fifteen months to prosecute it by filing their brief within time, or in default, applying for extension of time to do so.  They went to sleep.  The respondents who might have woken them up from their slumber, by applying to have the appeal struck out for non-prosecution, did nothing either.  In a situation such as this, the court would have no choice but to fall back on its power if it is to decongest its list of dead cases.”

In underscoring the centrality of inordinate delay to the invocation of the power of dismissal of an appeal suo motu by the Supreme Court, Uwais, CJN stated at page 421 para. H of the Report that “in practice it is cases where the delay by the appellant in filing brief had taken one year or more that are fixed for hearing in chambers under Order 6 Rule 3(2)” for the purpose of dismissal.  In his own contribution, Iguh, J.S.C stated at pages 437-438 paras H-A that “in terms of the practice and procedure of the Supreme Court, the court only acts suo motu to dismiss an appeal where the appellant’s inactivity or indolence in the prosecution of his appeal amounts to such an inordinate delay that it almost borders on total abandonment of the appeal.”

In his dissenting opinion, at page 439-447 of the Report, Kutigi J.S. C vehemently disagreed with their Lordships. His reasoning was that the dismissal of an appeal by the Supreme Court, on its own, in Chambers, without notice to appellants in the appeal,  would amount to a nullity, being a judicial act done in breach of the right of parties to fair hearing, and consequently without jurisdiction on the part of the Supreme Court. Said the eminent Jurist,  at page 446, paras A-C:

If the Supreme Court must continue to dismiss appeals for want of prosecution, under Order 6 Rule 3(2),  of the Rules, it must comply with the basic elementary requirements  for the administration of justice before it could have competence  and jurisdiction. The Supreme Court cannot properly in my view pretend to dismiss appeals for want of prosecution on merit when we all know that it was not on any merit. All previous dismissals were on merit as the judgments or orders show. The Rules which permit the Court to sit in Chambers to transact certain matters, I believe, do not envisage that the issuance and service of process would be thrown to the wind and that the Court will be ‘secretly’ ( courtesy of Chief G.O.K Ajayi (SAN) in the ongoing Abiola Treason Trial),  dismissing appeals in Chambers suo motu and without notification to any of the parties. That is clearly unsupportable.’

‘The attitude of this Court, I believe, has always been that whenever it is possible to determine a case on its  merit, the Court should not cling to technicalities to refuse a complainant  the opportunity of being heard. It is also, I believe, the judicial stand of this Court not to dismiss an appeal for want of prosecution unless the Court is satisfied that the appeal has no merit, anyway

Rounding off his erudite dissenting opinion, Kutigi J.S.C provided an instructive summary at page 446-447 paras. E-B of the Report as follows:

This Court in Ogbu & Ors v. Urum & Anor (supra), Yonwuren v. Modern Signs (Nig.) Ltd. (supra), Chukwuka & Ors v. Ezulike (supra), and Oyeyipo & Anor v. Oyinloye (supra) decided that the Supreme Court has no statutory jurisdiction under the 1979 Constitution, or the Supreme Court Act, 1960 or the Supreme Court Rules, or under the inherent jurisdiction of the court to restore or re-list an appeal dismissed for want of prosecution.  These decisions remain valid and binding having regard to the facts and the circumstances under which each and every one of them was made; The decision to dismiss the appeal for want of prosecution in each and every one of the cases referred to above was taken after the intended victim i.e the appellant in each case was either heard or given the opportunity to be heard as Hearing Notices of the appeal and/or Motion to Dismiss same were served on the parties, or counsel as appropriate; The decisions in all the decided cases above do not extend to cases of nullities.  In other words, in a case of a fundamental breach which goes to jurisdiction and competence, the Supreme Court would have inherent jurisdiction to set aside its order of judgment;

In all the decided cases referred to above, the Supreme Court did not on its own volition, single handedly, suo motu and without intimation or notification to any of the parties, proceed to dismiss an appeal for want of prosecution as was done in the instant case; The case before us now, therefore, has no precedent because none of the decided cases is authority for the proposition that the Supreme Court can suo motu, quietly and privately arrange to dismiss an appeal for want of prosecution in Chambers without any prior notification or intimation to the parties to that effect; and Sitting in Chambers is no substitute for regular issuance and service of process on litigants and or counsel.”

The second example wherein Kutigi, J.S.C exhibited his characteristic judicial single mindedness was in the case of A.G, Abia State v. A.G, Federation (2006) 16 NWLR (Pt. 1005) 265, in which the Supreme Court delivered judgment on 7th July 2006. Legbo Kutigi, J.S.C ( as he then was), joined by Dahiru Musdapher, J.S.C ( as he then was) delivered a dissenting opinion, in spite of the fact that he was the Justice that  presided over a panel of seven (7) eminent Justices of the Supreme Court that heard and determined that contentious constitutional case.

In that case, the Attorneys General of Abia, Delta and Lagos State filed separate actions against the Attorney General of the Federation and the Attorneys General of the other 34 States. The actions, which  were consolidated, challenged the constitutionality of certain provisions of the Monitoring of Revenue Allocation to Local Governments Act, 2005, passed into law by the National Assembly and assented to by the President of Nigeria.  In the main, the Plaintiffs contended that certain sections of the Act, which established and constituted members of the Joint Local Government Account Allocation Committee for each State, provided for rendering of monthly returns by the Committee to the Federation Account Allocation Committee, limited the borrowing powers of state governments, prohibited state governments from deducting or reallocating funds standing to the credit of the State Joint Local Government Account, contained penalties for contravention or breach of the provisions of the section on the said deduction or reallocation of funds, and enjoined the Accountant General to furnish quarterly reports on payments made to each House of the National Assembly, amongst others, offended the principles of federalism, and therefore, were illegal, unconstitutional, null and void.

While the majority of their Lordships, led by Niki Tobi, J.S.C, who read the leading judgment, granted the reliefs of the Plaintiffs in part, Hon Justice Kutigi ( as he then was) dissented, holding that the National Assembly had legislative competence under the Constitution to make that law, more so, when all the law sought to do was not to dictate or prescribe how and in what way or manner local governments were to spend the allocations made to them, but to monitor allocations to local governments, ensuring that such allocations are promptly paid into the Joint Local Government Accounts and distributed in accordance with the laws.  Said Your Lordship, “accountability and transparency is what the Act is all about.  The allocations they (local governments) must have, and spending, they must also do.  The allocations must not go into private pockets or private accounts

While true federalist may not agree with the dissenting opinion of Kutigi, J.S.C because of its unitary import by sanctioning a law that empowered agencies of the central ( Federal ) government to monitor utilization of statutory allocation at the State level, no one can dispute that the resurgence of the idea of ” local government financial autonomy” in the latest constitution amendment process amounts to a vindication of some sort for the fiscal prudence stance of the Jurist in that case.

Certainly, presiding over a law governed, rules based,  practice-directed and convention observing Supreme Court of Nigeria in a quiet court hall where there are only two or a few adversarial  legal disputants, and where their Lordships are in dictatorial charge, is different from presiding and managing a National Conference of almost five hundred persons from all over Nigeria, with no budgetary vote, enabling law, or well defined extant rules of procedure. Also, presiding over a Supreme Court whose judgment is not only final and binding on the parties to  litigation but also must be enforced by all authorities and persons in Nigeria ( See Section 287 of the Constitution, 1999, as amended) is different from presiding over a Conference whose decisions and outcomes may not be enforceable, except the balance of political forces in Nigeria compel such enforcement.

However, His Lordship can creatively move the Conference to dissent from the modalities and agenda handed down by the Federal Government, especially the one directing the Conference to agree and advise government on the legal framework, procedures and options for integrating or incorporating the conference decisions and outcomes into the 1999 Constitution and laws of the Country.

What is needed is a new people made Constitution. Not an amended version of a military constitution. Will my Lord dissent from or adopt and agree with the dictates of the Federal Government?

Mr. Ogunye, constitutional lawyer, legal commentator, author, and essayist, is the Legal adviser of Premium Times.