By Folabi Kuti
Until his passing on Saturday, July 28, 2023, at the age of 64, the eminent jurist, Nweze JSC led such a momentous judicial career that he often enjoyed the rare privilege of quoting himself in many of his own Supreme Court judgments. Drawing from the rich body of illuminating decisions he participated in throughout the appellate courts, his Lordship was indeed eminently qualified to quote himself.
A thoroughbred scholar-Judge, his Lordship was possessed of a keen and robust intellect, allowing him to pen many seminal judgments, either in the lead or in concurrence as a participating Justice in a collegial court. In no particular order, a few decisions from a broad range of subject areas will suffice to illustrate my Lord’s most illustrious career on the nation’s appellate bench.
As a Justice of the Court of Appeal, the Hon. Justice Nweze likened the threshold issue of a court’s jurisdiction to the poignant analogy of a gatekeeper jealously prescribing access to those seeking thoroughfare. Years later at the Supreme Court, my Lord (in Ufomba v INEC & Ors (2017) LPELR-42079(SC) (Pp. 43-44 paras. A-A) ‘reclaimed the authorship’ of that apt description thus:
“In University of llorin and Ors v Oluwadare (2009) All FWLR (Pt 452) 1175, 1204; B-D, the Court of Appeal [per Nweze, JCA, as he then was] opined that: Jurisdiction is to a Court, what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that it has a genuine cause to be allowed ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper, as vigilant as he is always, will readily intercept and query all persons who intrude into his domain. To be able to ventilate a grievance, a prospective litigant has to ensure that he addresses his complaint to the competent Court. That is so for an incompetent Court will have no jurisdiction to attend to his entreaty… Exactly a year later, in its decision in Oloruntoba-Oju and Ors v Abdul-Raheem and Ors (2009) LPELR -2596 (SC) 22; B-E, this Apex Court adopted my above views wholesale, although, without attributing its authorship to me. Be that as it may, I now take liberty to re-assert the above views of mine. I adopt them as part of my reasoning in this contribution.”
In Alfa v Attai & Ors (2017) LPELR-42579 (SC) his Lordship, as Nweze JSC, trenchantly called in aid the invaluable historical insights into invoking the originating summons procedure which, as Nweze JCA, his Lordship had provided in Biodun Olujimi v. Ekiti House of Assembly (2009) 33 WRN 44.
The raison d’etre behind courts’ insistence that a notice of appeal in a criminal appeal must be personally signed by the appellant (that is, the convict) and not his solicitor, came to a most perceptive illuminating light in Justice Nweze’s leading opinion in Okey Ikechukwu v Federal Republic of Nigeria (2015) LPELR – 24445 (SC). The eminent jurist felt able to reference this case law citation again when the opportunity presented itself to reiterate the proposition in Umezinne v FRN (2018) LPELR-46334 (SC) – Nweze JSC, in the lead.
Still citing with approval, his Lordship’s eloquent clarifications in earlier decisions, the Supreme Court, in Ilori & ors v Ishola & Anor (2018) LPELR-44063 (SC) examined, inter alia, the public policy consideration holding as unconscionable, a party who had benefited from a contract turning around to declare that same was unlawful or contending that, as was the issue in the case under reference, Governor’s consent was not lawfully obtained. Nweze JSC was on that panel and wrote a concurring opinion in which his Lordship revisited his own opinion on the narrow issue, as well as the more wide-ranging issues relating to consent provisions under the Land Use Act. His Lordship also referenced his leading opinion in the Court of Appeal, in Pharmatek Industrial Projects Ltd v. Trade Bank Nig Plc (2009) 13 NWLR (Pt1159) 577.
In closing, his Lordship modestly ‘recalled’ thus (at Pp. 44-48, para. E-E): “Although, according to an illustrious scholar: ‘Without a doubt, the most penetrating analysis of the decisions on the consent provisions of the Land Use Act was delivered by Nweze JCA (as he then was) in Pharmatek Industrial Projects Ltd v. Trade Bank Nig Plc (2009) 5 NWLR 28) … Nweze JCA, (as he then was), in a prolific and voluminous judgement, exhaustively, discussed almost all the decisions of the Court of Appeal and Supreme Court on the point, expressed preference for Onnoghen JSC’s dissent in Ayodare (supra)… ‘Emeka Chianu, Law of Securities for Bank Advances (Mortgage of Land), (Benin City: Ambik Press, 2017) 132. I shall refrain from volunteering further opinions on these issues since my said decision, Pharmatek Industrial Projects Ltd v. Trade Bank Nig. Plc. (supra) is already on appeal before this Court.”
As a Justice with an academic background, who had written leading treatises like the two-volume ‘Contentious Issues and Responses in Contemporary Evidence Law in Nigeria’ (Enugu: IDS, UNN,2006), his Lordship’s scholarly disposition, depth of research and readiness to interrogate settled assumptions often came to the fore in his judgments; wherein he copiously referenced and cited tertiary sources and opinions of text writers.
Not too long ago, the Supreme court in its full complement of seven Justices, handed down a landmark decision in the reported case of Centre of Oil Pollution v NNPC (2019) 5 NWLR (Pt.1666) 518. More than anything, this represents a significant step (forward) in unravelling the exact scope of the doctrine of standing to sue, and its source. Nweze’s leading opinion rightly called attention to the mistaken notion in previous decisions of the Court (Adesanya v FRN, Owodunni v Reg Trustees CCC etc) that locus standi was traceable to section 6(6)(b) of the Constitution.
The judgment is significant and had the well-garnished briefs of counsel on both sides of the divide, as well as the vast learning of the amici curiae called to assist the Court in this all-important judicial endeavour.
Recognizing the contributions of the learned amici curiae who wrote illuminating briefs pro and against opening the gate(s) a little wider, there was also a very significant contribution, in the form of a well-researched paper credited to Dr Tunde Ogowewo, Lecturer in the School of Law, King’s College, University of London. Nweze JSC made copious reference to this tertiary source in his keen examination of all previous decisions of the Court on the subject matter, before concluding that locus standi, in any event, did not enjoy any statutory backing but was a mere common law/judge-made rule.
The leading judgment of Nweze JSC, after reviewing all the submissions made to the Court, next endeavoured on what the learned jurist admirably called ‘a tour d’horizon’ to demonstrate how the Court may have in one or two previous decisions incorrectly applied its holding from the leading authority of Adesanya v FRN. In concluding on the correct position, the Court rightly credited the position proferred in Ogowewo’s piece. (para. E, pg. 567 of the Report).
Uncommon industry and learning were the hallmarks of an Nweze’s judgment! The affecting erudition seamlessly flowing through his Lordship’s research laden, and well-written judgments may also explain the unintended semantic ‘ambiguity’ or obscurity that was sometimes employed in delivering some of these otherwise seminal decisions. On a lighter note, the uninitiated; not given to painstaking legal study, may be left trying to unravel the contextual meaning(s) of such highfalutin statements as: ‘My Lords, the proximate impulsion to this matter was an order of the Court of Appeal’ (opening lines in the cause celebre Skye Bank v Iwu (2017) LPELR – 42595 (SC) 26 – 32); or, the opening lines in Ihedioha v Nwosu (2019) LPELR-52790 (SC): ‘My Lords, notwithstanding, all the forensic peroration in this appeal, it (the appeal), actually falls within a very narrow compass. True, indeed, in the good old days, it should have been determined brevi manu on the Bench’; or when His Lordship, drawing from scholarly works noted in Ibrahim v Fulani and Ors (2009) LPELR-4279 (CA) 35 that the search for the meaning of ‘ratio decidendi’: ‘pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory: Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms’.
It bears reiterating here that flowery and sometimes Shakespearean prose did nothing at all to affect the quality of his Lordship’s judgments. Rather, my Lord’s quotable quotes from the bench are indeed a beauty to behold. And, beauty, we are told, is in the eyes of the beholder. One of the most well-known statements of the apex court decrying as old order the free rein of technical justice is contained in this passage from the leading judgment of Nweze JSC in Omisore v Aregbesola (2015) All FWLR (Pt 813) 1673 at 1712 paragraphs B – C where His Lordship held as follows: “Now, it is no longer in doubt that this Court and indeed all Courts have made a clean sweep of “the picture of the law and its technical rules triumphant” Aliu Bello & Ors v Attorney General, Oyo State (1986) 5 NWLR (pt 45) 828, 866. Let me explain. By its current mood, it is safe to assert that this Court has firmly and irreversibly spurned the old practice where the temple of Justice was converted into a forensic abattoir where legal practitioners, employing such tools of their trade like “the whirling of technicalities”, daily butchered substantive issues in Court in their “fencing game in which parties engage themselves in an exercise of outsmarting each other…” Afolabi v Adekunle (1983) 2 SCNLR 14,150. Those days are gone; gone for good.”
As Justice of the Court of Appeal, His Lordship waxed poignantly in Standard Chartered Bank Nigeria Ltd v Dr. Tunji Braithwaite (2013) LPELR-20814 (CA) at p. 39: on the virtues of untainted equity “…Equity, like an immaculate garment, abhors the company of those who are either likely to contaminate its Majesty: taint its purity or dampen its allure! Above all, since she does not trade in detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt and appear with unimpeachable allegations!”
The prodigious intellect and deep insights of this judicial colossus shone through and through in many more judgments for which his Lordship is credited. He consciously molded the development of the law. Jamari & ors v Yaga (2012) LPELR-15188 (CA) in which His Lordship, Nweze JCA (as he then was) delivered the leading judgment is high authority for the proposition that before a litigant would be allowed to rely on or call in aid what is commonly touted as ‘error of counsel’, there must be an affidavit from counsel admitting the fault.
His Lordship’s thorough and thoughtful analysis of constitutional provisions: (i) on fair hearing as it relates to the composition of a court/tribunal, being the same from hearing to determination – Kalejaiye v. LPDC & Anor (2019) LPELR-47035(SC)); and (ii) on availing a purposive interpretation of the Constitution so as not to defeat the ends of justice – Saraki v FRN [2016] 3 NWLR (pt. 1500) 531, FRN V. Nganjiwa (2022) LPELR-58066(SC) – are amongst countless important judgments, and abiding legacies of his Lordship. The Honourable Justice C.C Nweze JSC has now gone the way of all mortals; to join the company of the saints. May his soul rest in peace!
Kuti (SAN) is a Partner in the law offices of Perchstone & Graeys, LP.
