The judicial adultery in Kano – By Lasisi Olagunju
The falcon no longer hears the falconer. A commercial flight landed in Asaba on Sunday but its cabin crew welcomed passengers to Nnamdi Azikiwe Airport, Abuja. A certified true copy of an Appeal Court judgment last week gave victory to both the respondents and the appellants. Nigeria of today is the textbook definition of confusion.
I seek to describe what the Court of Appeal did with the Kano governorship case as judicial adultery. I also seek to call it an adulteration of justice. I write with the help of my dictionary which has pointed it out to me that ‘adulterate’ and ‘adultery’ come from the same Latin root, adulterare, meaning “to falsify, corrupt.” Rodents of karma peed into the soup pot of the absolute monarchs in our court halls last week. A court that chops knuckles with parties before it is sure to deliver hybrid judgments – a little to the right, a little to the left; a salad of poisonous confusion.
Fuji megastar, Kollington Ayinla, sang decades ago about indecorous mating in music-sphere. The product, he says, will have the face of the lead singer; the arms and legs of the child will belong to the drummer; the head will go to the gong man (Oju l’oju Kola/Apa l’apa Social/Ese l’ese Aromire/Ori l’ori Jimoh Agogo/Eti l’eti Marcus…).
Scholars after scholars have stressed, repeatedly, that the role of a judge in a case is to “transform the uncertainty about the facts into the certainty of the verdict.” A judge that leaves parties before it uncertain and confused after judgement has failed at doing his work. He deserves neither his pay nor a pat nor the usual allowances of reverence. Like the hybrid child in Kollington Ayinla’s ‘Ta ni o jo’ song, the Kano governorship judgement birthed a shapeshifter; a certified true copy that carved the verdict’s trunk in the image of the APC respondents while the gavel head of the bull goes to the NNPP appellants. It is the first hybrid judgment in the history of the world and the court system.
Every reasonable Nigerian was shocked to know of this case. The Court of Appeal sitting in Abuja heard and decided an appeal on the governorship of Kano State. It read its judgement in the open court sacking the incumbent governor who was the appellant in the case. Five days later, the party that lost got a certified true copy (CTC) of the judgement but saw that the decision and orders of the court on the document actually gave them the crown of victory. On the face of the CTC of the judgment signed by the chairman of the panel, the court resolved “live issues” in the case in favour of the respondents (APC) and dismissed the Appeal. It then scandalously proceeded to resolve “all issues” in favour of the appellants (NNPP) – the party it had earlier pronounced losers.
The court went further on that route of confusion setting aside the judgement of the tribunal that had earlier sacked the governor and which it had earlier affirmed. It went farther further awarding costs against the APC, the party it had earlier pronounced winners: “The sum of N1,000,000.00 (one million naira only) is hereby awarded as costs in favour of the appellant and against the 1st respondent,” the CTC read. Was that an error or two parallel judgements of the same case, one grafted onto the other by karma?
Judges are traditionally like eagles – they are not expected to flock and join the crowd to make silly mistakes. That is perhaps the reason why the Romans said an Eagle does not catch flies. When a court judgement has the type of ‘mistakes’ you find in exam scripts of below-average pupils, know that the Eagle of the nation now flies down to hunt flies. The poet is a prophet. William Butler Yeats (1865 – 1939) saw this Kano conundrum over 100 years ago. His poet-persona speaks in ‘The Second Coming’ of “a shape with lion body and the head of a man…” That is a monster – the image of a judgement that says both parties have won.
Cynthia Gray was the director of the Centre for Judicial Ethics of the American Judicature Society. In 2004, she published in the Hofstra Law Review an article on ‘The line between legal error and judicial misconduct: balancing judicial independence and accountability.’ A Nigerian judge reading the piece would be happy to cite it as a proof that misbehaviour in the temple of justice is not copyrighted for Nigeria. There are cases cited there that leaves mouths unclosed – like more than one judge caught deciding cases by lot in the open court. One judge decided a child custody case by flipping a coin; another asked the courtroom to vote on the guilt or otherwise of a man charged with battery: “If you think I ought to find him not guilty, will you stand up?” When that judge was charged with misconduct, his defence was that he called for an audience vote to “involve the public in the judicial process.”
Some of those errant judges argued that they were right; some said they did not know it was wrong to be wrong. If a judge has no clue as to which is the way between the bush and the road, we should know that the society is in trouble. As Gray argues “it would be incongruous if the principle: ‘ignorance of the law is no excuse’ applies to everyone but those charged with interpreting and applying the law to others.”
The day the Kano CTC scandal broke, I sat down with my Nigerian-American friend for a sad chat on the Kano fiasco. What is this? The court explained it as a “clerical error” but my friend said: “That’s neither a faux pas nor a slip of judgement. That’s a revelation!” A revelation?! I thought that was deep. W.B. Yeats probably saw this too and also told us how it may end: “Surely some revelation is at hand; Surely, the Second Coming is at hand.” Even non-Christians know the implication of the ‘second coming’. It signposts, first, the coming of the “rough beast” slouching “towards Bethlehem”, then the end of the world.
A convulsing world denies its terminal illness. It is not true that if you find yourself in a hole you should stop digging. If you dig horizontally you may escape the enemy’s snare at the end of your tunnel. The appeal court appeared to have done exactly that. It doubled down, boring a tunnel of explanations on how its cock turned to a bull within five days. It said the sin it committed was a mere “clerical error.” Could three whole paragraphs carefully written with words correctly spelt be called a ‘clerical error’. The World Law Dictionary defines ‘clerical error’ as “a small mistake (eg a spelling mistake) made by accident in a document.” No one, apart from the judges who sat in that court, knows exactly what happened. We can only guess. The court should just go quietly into the night. It is a very bad, low moment for Nigeria itself.
Where else can this “clerical error” be found in the history of court judgements? I spent the weekend doing some searches for similar errors in history and around the world. The nearest I could find was the 1941 Bastajian v Brown case decided by the United States Supreme Court.
On May 14, 1936, a trial judge made a decision entry in the court records. It was his conclusion on a real estate case. He wrote: “395524. Blanche H. Comstock v. James E. Brown, et al. Cause heretofore tried and submitted, the court now orders judgement for defendants.” Court records showed that “a year expired during which time no findings of fact and conclusions of law were submitted to the court. On about May 11, 1937, findings of fact and conclusions of law and a judgment prepared by C. P. Von Herzen, one of plaintiff’s attorneys, were filed by him with the clerk to be presented to the judge; they were signed by the judge and filed on June 4, 1937.” It turned out that what the judge signed was the direct opposite of his May 1936 decision and entry.
The cheated side read what was signed and complained to the judge. They called his attention to what the decision truly was. On September 29, 1937, the judge issued a corrective order agreeing with the complainant/defendants that the said judgment was signed by his court “inadvertently and by mistake, and did not express the intent of this court nor the true judgment rendered herein, and that the signing of the same by said court constituted a clerical mistake.” The judge further held that the plaintiffs’ “presentation of said Findings of Fact and Conclusions of Law and said Judgment to this Court for signature constituted a fraud and deception practiced upon this Court in misrepresenting and misstating the true decision of the court after the lapse of a long period of time…”
The case became a very controversial one that went up to the Supreme Court. On December 19, 1941, the Supreme Court ruled that the judge properly exercised his powers by “vacating the judgement and the finding of fact and conclusions of law upon which the judgement was rested.” Friends and beneficiaries of the Nigerian Appeal Court would read this case and say: “you see, there is no new thing under the sun.” They would refer us to the author of the book of Ecclesiastes: “The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.”
But I think they should wait: A layman like me will easily see that the contentious judgement in the US case was drafted by the counsel of the plaintiffs for the judge to sign. And he signed. Anyone in Nigeria who would seek to benefit from that case should prepare to explain how judges of the second highest court in the land wrote ‘yes’ when they meant to write ‘no’. The Court of Appeal has not disowned the authorship of the judgement; it wrote and signed it. It even, after its delivery, dotted the i’s and crossed the t’s for more than four days before releasing the CTC The court has not told us how the “error” crept into its spick and span work.
It is so nice that this case has moved up to the Supreme Court. We should all look forward to reading how the apex court will “transform the uncertainty” of the case to the certainty of untainted reasoning. One thing, however, appears true here: The poet is a prophet. Chinua Achebe’s ‘Things Fall Apart’ derives its title from the poetic prescience of W. B. Yeats. It foretells the horrific “error” that was certified by the Court of Appeal last week. I will be surprised if anyone says things are alright with the Nigerian system. With every passing day, sheets of darkness unfurl. The innocent have long lost their innocence; an epidemic of guilt without shame distresses the land. That is why you would hear the unclad Court of Appeal, while sacking Bauchi State Speaker on Friday accusing INEC of “dancing naked in the market”.
Before “the Second Coming”, Yeats says the falcon will no longer hear the falconer. Where succour used to be, what you see is anarchy. The poet foretells all that. As the gyre widens, we feel the silence of philosophers and the ignorant chatter of promoters of vile excuses. The best in Nigeria today “lack all conviction”; the worst is “full of passionate intensity.”
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