Book Review by Dr. Suleiman Nchi
The book titled HON. JUSTICE EJEMBI EKO DISSENTS: A COLLECTION AND COMMENTS ON HIS LORDSHIP’S DISSENTING JUDGMENTS AT THE SUPREME COURT OF NIGERIA is a book written in honour of His Lordship, Hon. Justice Ejembi Eko, JSC.
The book is edited by Chief Ogwu James Onoja SAN and Yeye Funmi Quadri, SAN with contributions and analysis by 27 eminent Senior Advocates of Nigeria namely —
Professor Tahir Mamman, SAN, Chief (Mrs.) Victoria O. Awomolo, SAN, Asiwaju Adegboyega Solomon Awomolo, SAN, Chief Titus Olasupo Ashaolu, SAN, Yeye Funmi Quadri, SAN, Mr. J. S Okutepa, SAN, Dr. Garba Usman Tetengi, SAN, Chief Mamman Mike Osuman, SAN, Dr. Mike Ozekhome, SAN, Mr. S. K Ajibade, SAN, Mr. Mahmud A. Magaji, SAN, Dr. Ahmed Raji, SAN, Mr. Chris Uche, SAN, Mr. A.U Mustapha, SAN, Dr. Yusuf Ali, SAN, Mr. Awa Kalu, SAN, Mr. Ikechukwu Ezechukwu, SAN, Mr. Kunle Ogunba, SAN, Mr. Oba Maduabuchi, SAN, Mr. Tawo E. Tawo, SAN, Mr. Moses Ebute, SAN, Professor Yemi Akinseye-George, SAN, Mr. Tanimu M. Inuwa, SAN, Chief Ogwu James Onoja, SAN, Chief Godwin Obla, SAN, Mr. Eko Ejembi, Jnr. SAN, and Dr. Alex Izinyon, SAN. It is this bright constellation of legal minds drawn from both the public and private sectors whose incisive and illuminating commentaries combine to give this book its uniquely rich intellectual stature.
The concept of the book revolves around an examination of the dissenting judgments delivered by Hon. Justice Ejembi Eko JSC by the 27 aforementioned Senior Advocates of Nigeria. Apart from the preliminary pages, the book is divided into eleven chapters. The various comments which precede the judgments are like appetizers whetting one’s appetite in preparation for the feast of law and jurisprudence served by my lord in his judgments. There are eleven dissenting judgments consisting of six judgments on criminal matters and five judgments on civil matters contained in the book namely:
- Olatunde Abimbola v. The State
- Daniel Jiya v. The State
- Ndubuisi v. The State
- Felix Orishadipe v. The State
- Muyideen v. The State
- Orakul Resources Limited & 1Ors v. Nigerian Communications Commission & 4Ors
- Skypower Express Airways Limited v. United Bank for Africa Plc & 1Ors
- Vital Investment Limited v. Chemical and Allied Product Plc
- Ozo Nne Iloputaife & 4Ors v. Benedict Orji &17Ors
- Eyitayo Jegede & 1Or v. INEC & 3Ors
- Alfred Elijah v. The State.
Dissenting judgments are by their very nature judgments which take a different perspective and thus arrive at a different conclusion from that taken by the majority decision. It is interesting to note – as many of the contributors did in their various analyses – that dissenting judgments have a constitutional basis. Section 294(2) and (3) provides:
“Each Justice of the Supreme Court or the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other justice who delivers a written opinion.
(3) A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
This is obviously the reason why the number of justices on the bench of the appellate courts are in odd numbers of 3, 5, and 7.
Having thus established this basis, we now delve into a chapter-by-chapter synopsis of the book with a selection of the comments of some of the contributors on each dissenting judgment.
Chapter One contains the judgment of my lord in the case of Olatunde Abimbola v. The State. The crux of my Lord’s judgment centred on the issue of self-defence. In examining the dissenting decision of my Lord, Professor Tahir Mamman, SAN was of the view that self defence being a legal defence under our criminal jurisprudence permits a defendant to invoke the defence of self-defence in appropriate circumstances and that in the instant case His Lordship was right in exonerating the defendant on the basis of his plea of self-defence as same was not rebutted by the prosecution.
Chief (Mrs.) Victoria O. Awomolo, SAN supported His Lordship’s view that the extrajudicial statement of the defendant which the lower court misconstrued as an admission of guilt did not satisfy the legal requirements of a confessional statement since the defendant raised the defence of self-defence as a justification for the killing of the deceased. The learned Silk pointed out that His Lordship showed in his judgment that a successful plea of self-defence negates the existence of murder and excuses the accused from guilt.
Chapter Two contains the judgment of my Lord in Daniel Jiya v. The State. In that case, the Appellant was convicted by the majority decision under section 1(2) of the Robbery and Firearms Act for robbing two women. In his comments Asiwaju Adegboyega Solomon Awomolo, SAN examined the constitutional basis for dissenting judgments and that the dissenting judgment of his Lordship was a demonstration of the age-long principle that it is better for one hundred accused persons to go free than for one innocent person to be punished for an offence he did not commit or which was not proved by the prosecution as required by law as his Lordship was of the view that the accusation that the defendant robbed the women with a gun was not proved beyond reasonable doubt by the prosecution.
Chief Titus Olasupo SAN took the view that his Lordship’s analysis of the case in focus clearly shows that his Lordship did not only shape the law but made sure that justice is done to all the parties and that motivated by the desire to do justice, his Lordship was willing to jettison the age-long principle that the Supreme Court should not interfere with the concurrent judgment of the lower court.
Yeye Funmi Quadri, SAN observed that judges and justices battle with the age-long conflict between law and justice and that the way a judge resolves this tension depends on the view which he has formed of his judicial office. To this end, she commended his Lordship for being bold and courageous in giving sound judgment according to the dictates of law with the aim of upholding justice.
Chapter Three contains the interesting case of Ndubuisi Dike v. The State wherein the Appellant was accused of killing his own brother having confessed to his mother of committing the heinous crime. His conviction was overturned by the majority decision. In examining the dissenting decision of His Lordship, Mr. J. S Okutepa, SAN, opined that His Lordship’s decision was founded on substantial justice as against technicalities and quoted an English Philosopher Walter Savage Landor who wrote that “when law becomes a science and system it ceases to be justice”.
Dr. Garba Usman Tetengi, SAN, x-rayed his Lordship’s decision and came to the same conclusion with J. S Okutepa, SAN that his Lordship’s judgment is motivated by his stance against injustice rather than by looking at the form or the technicality of a case.
Chapter Four contains his Lordship’s dissenting judgment in Felix Orishadipe v. The State, another interesting criminal case where the Appellant was accused of shooting and killing his neighbour. The Appellant conceded to the shooting but pleaded accident on the ground that he was under a mistaken belief that the deceased- his neighbour- was a deer. In his comments, Mike Mamman Osuman, SAN, posited that the four noble justices who allowed the appeal took a compassionate view of the Appellant’s predicament while Justice Ejembi Eko JSC as a dissenter judiciously and judicially restricted himself to the arid facts and applicable laws and convicted the Appellant.
Chapter Five contains the case of Muyideen v. The State. Mike Ozekhome SAN’s comments are framed around a critical analysis of the mens rea for murder and aptly so because in the case under review the Appellant accused of murder pleaded the defence of self-defence having struck the deceased with firewood in self-defence against attack by six persons which included the deceased.
Mr. A. K Ajibade, SAN stated that rather than looking at the statement of the Appellant as a confession, His Lordship examined its content to pick out two defences and as such demonstrated that the role of judges and justices is not to hastily convict but to get to the nitty-gritty of the crime in a manner that will do substantial justice.
Mahmud A. Magaji, SAN reasoned that his Lordship has a handsome number of dissenting judgments and that my Lord does not dissent just for the sake of it as his seemingly controversial judgments are always guided by two major considerations:
- Decisions of some of the earliest justices of the Supreme Court
- Sound philosophical/legal reasoning
Mr. Ahmed Raji SAN found the dissenting judgment of His Lordship to be faultless and full of erudition as His Lordship’s decision hinged on the fact that in criminal trials, the onus rests on the prosecution to prove by credible evidence, that the guilt of the accused person beyond reasonable doubt and that in this case, the prosecution failed to discharge the onus of proof.
Chapter Six contains His Lordship’s judgment in Orakul Resources Limited & 1Ors v. Nigerian Communications Commission & 4Ors (reported in 2022 6 NWLR (Pt.1827) 539. The main issue in contention was pre-action notices vis-à-vis the constitutional right of access to court. Mr. Chris Uche, SAN stated that while unanimous judgments are desirable, sometimes the occasion demands courage and conviction, juristic independence, and jurisprudential proactivity to disagree with the majority as was done by His Lordship in the above-mentioned case where His Lordship saw beyond ouster clauses and made pronouncements which emphasise the need for a new order where the supremacy of the Constitution and the efficacy of the rule of law must prevail.
A.U Mustapha, SAN on the other hand submitted that even though the dispute has been decided based on the majority decision, my Lord’s dissenting view has stirred up questions and inspired deep intellectual discourse which provides the necessary foundation for balancing pre-action notices and procedures with constitutional rights of access to justice and fair hearing.
Chapter Seven contains the interesting case of Skypower Express Airways Limited v. United Bank for Africa Plc & 1Or (reported as 2022 LPELR-56590) where once again the question of endorsement by a law firm on an originating process was in focus. Dr. Yusuf Ali, SAN in commending his Lordship for showing great courage and diligence, stated that his Lordship went beyond relying on statutes and local judicial pronouncements to show that an endorsement on a writ of summons was not the same as the writ of summons itself and that a defect in the endorsement does not nullify the writ.
Ikechukwu Ezechukwu, SAN interrogated the apex court’s avowed preference for doing substantial justice over technical justice in the light of the dissenting judgment of Hon. Justice Ejembi Eko JSC. He took the view that His Lordship’s position that what initiates an action is the writ issued by the appropriate officer and not necessarily the endorsement by a plaintiff or his counsel was correct as it accords with the need to do substantial justice.
Chapter Eight contains his Lordship’s judgment in Vital Investment Limited v. Chemical and Allied Product Plc. The case examined the issue of privity of contract where the Appellant sued the Respondent for making it incur debt to third party financiers owing to the tardiness of the Respondent in making payment according to the contract between it and the Appellant. According to Oba Maduabuchi SAN, His Lordship’s dissenting judgment accords with the law and common sense in that a party who performs a contract negligently can be sued by all those who suffer losses or incur obligations as a result of the losses occasioned by the action of the Respondent.
Chapter Nine contains the judgment in Ozo Nne Iloputaife & 4Ors v. Benedict Orji &17Ors which centres on the issue of fair hearing. In his comments, Professor Yemi Akinseye George, SAN, examined the facts of the case and stated that the judgment of his Lordship is a robust exposition of the principle of fair hearing in judicial proceedings and he agreed with His Lordship’s view that the customary court committed a grave blunder in summarily dismissing the counter-claim of the Appellants without hearing.
Chapter ten contains the dissenting judgment of His Lordship in Eyitayo Jegede & 1Or v. INEC & 3Ors where the pith of the matter was the legal implication of the Executive Governor of Yobe State Mai Mala Buni’s act of presiding over the nomination and sponsorship of Gov. Rotimi Akerodolu in the Ondo State Gubernatorial election of 10th October 2020. The majority decision was to the effect that even though the Executive Governor of Yobe State acted contrary to the Constitution since he was not joined as a party to the suit, the election could not be nullified. In his analysis, Chief Ogwu James Onoja, SAN supported his Lordship’s dissenting judgment in upholding the supremacy of the Constitution and that his Lordship’s view that since the APC had been joined in the suit, it was needless joining the Executive Governor of Yobe State since as a Governor he was covered by immunity as provided in section 308 of the Constitution.
Chapter Eleven contains the case of Alfred Elijah v. State wherein the Appellant was charged with an offence under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act. In his comments Dr. Alex Izinyon, SAN after a thorough examination of the facts of the case opined that there has been a decline of dissenting judgments in our corpus of laws and that there is a need for dissenting judgment to be sustained in our jurisprudence whenever it becomes imperative because dissenting judgments act as pathfinders and provide the basis for a rethinking on settled legal principles with the possibility of legislative intervention when necessary.
On the whole, the book is a delightful and refreshing insight into the mind of one of the eminent justices of the Supreme Court in contemporary times and will no doubt constitute the basis for a re-examination and reformulation of certain legal principles.
Dr. Suleiman Nchi
Faculty of Law
Nasarawa State University
Keffi, Nasarawa State.
