This Dinner Party is organised by His Excellency, Babatunde Fashola SAN, for Hon Justice George Oguntade CON on the occasion of the learned Justice’s retirement from the apex Court, the Supreme Court. It is a mark of honour. As far as I am aware, it is not often that the honour of a Dinner Party attended by so many dignitaries from across the country is done to a retiring Justice of the Supreme Court by the Governor of a State in the Federation of Nigeria. So our first compliment must go to Governor Fashola for deeming it fit to honour Justice Oguntade by the simple but significant ceremony of a dinner party.
The dinner party is significant because it is a testimony, not of the sentiments of Governor Fashola’s personal friendship or affection for Justice Oguntade; it is rather a public acknowledgment of the learned Justice’s inestimable contributions to the jurisprudence of our Supreme Court and the development of our democracy, as borne out particularly by his dissenting judgment in the Atiku Abubakar and Mohammadu Buhari election cases in 2008.

 Our Supreme Court is yet to establish a firm tradition of dissenting judgments. A dissenting judgment in that Court, when it does occur, is thus an act of singular courage, especially when, as in the Oguntade dissent in the cases referred to above, it is a dissent from the united position taken by six justices in a bench of seven.

Justice Oguntade’s dissent in the two cases is not just a dissenting judgment, it is a dissenting judgment marked out and distinguished by the impeccable, unassailable and persuasive logic of its reasoning, its deep insights and by the profundity of the learning it embodies. These attributes of the judgment are perhaps better brought out by quotations from the judgment. Listen to his words:

“In an election under a democratic system, all the political parties recognized under the law and their candidates must be treated equally and fairly. The public body organising the election must ensure that all the political parties and their candidates are afforded equal opportunity to approach the electors with their party programmes. The public body must not show special favour or disfavour to any of the candidates. An election is like a bazaar where political candidates advertise their party programmes to electors and that is as it should be in a democracy. In the interpretation of a provision in the Electoral Act 2006, a court must be conscious of its duty to jealously guard the underlying principles of democratic governance as enshrined in our Constitution.”

    Quoting the provisions of sections 14(1), 17(1) and 42(1) of the Constitution, his Lordship continued : “The question is – Did the 1st appellant/petitioner receive equality of treatment with the other candidates in the election as guaranteed to him under the Constitution of Nigeria? To this question, he gave an unqualified negative answer, and then proceeded to order that “the Presidential Elections held in Nigeria on 21st April, 2007 be annulled and a new election conducted within 90 days from today.” Lamentably, his was a lone voice in the wilderness.

    His Lordship went on to rationalize further his decision in the following insightful words:

“I am, to say the least, disappointed that exclusion from an election did not receive a more incisive and illuminating consideration from their Lordships of the court below. An election in a democratic system is not a football game or a theatre show where one pays to watch a game or a performance and from which exclusion amounts to little or nothing. Participating as a candidate in an election means more than that. The jurisprudence of the interpretation of election related laws imposes on a court an understanding of the attributes of democracy and its principles……In the interpretation of the words ‘that the petitioners or its candidate was validly nominated but was unlawfully excluded from the election’, a court must bear in mind that the ‘exclusion’ postulated under Section 145(1)(d) is the refusal to accord to a candidate the equality of treatment as would enable him contest against the other candidates on level terms. You cannot prevent a political candidate from advertising his programmes to the electors and turn round to say he was not excluded. A candidate enters into an election contest in order to engage in a competition of ideas. If the ideas of a candidate are not allowed to float equally with those of the others before the electors, then the candidate has been excluded from the election.”

More forthright and devastating perhaps is the masterly way he exposed the weakness of the way the Court of Appeal and the majority in the Supreme Court dealt with the issue concerning the validity or otherwise of the ballot papers used in the presidential election. Hear him again :
“The reasoning of the court below would appear to be curious. They proceeded on the basis that the elections conducted with ballot papers unauthorized by law was valid; and then turned round to ask the petitioners/appellants to prove that the same election was invalid for non-compliance. They unwittingly put the cart before the horse. That was a strange way to reason for a court. A court could not first assume that a disputed act was valid and then place on the plaintiff the onus of proving the invalidity of the same act when what was in dispute was the constitutive elements which would lead to a pronouncement of the validity of the Act.

“Even on the supposition that the burden to prove that the failure to use the ballot papers which did not conform with the law did substantially affect the result of the election was on the petitioner/appellant, it is my firm view that the petitioner/appellant discharged the burden. A ballot paper not in conformity with section 45(2) is prima facie an act of non-compliance. It is therefore an invalid ballot paper. Since it is the same invalid ballot paper that converts later in the process of an election into a vote, the resulting vote must also become an invalid vote. It was never the case of the respondents that the unserialized ballot papers were only used in some of the States in Nigeria. If that were their defence and the court below had found that this was truly the case, that would have placed on the court below the duty to determine what percentage of the votes cast at the election was valid or invalid. If the 4th and 5th respondents would still have won by a majority of the valid votes, the petition was liable to fail. But in this case, all the ballot papers used to cast votes for all the candidates in the election were invalid.

“The result is that each of the candidates at the Presidential Elections, 2007 scored zero or no votes. An invalid ballot paper cannot yield a valid vote. Clearly therefore, the petitioner/appellant in my view succeeded in making the case that the non-compliance with section 45(1) of the Electoral Act 2007 substantially affected the result of the election. Let me reiterate very respectfully that the lower court erred by not coming to the conclusion that each of the candidates at the election scored zero as no valid votes were recorded for any of them.”

    The compelling logic of the learned Justice’s reasoning, its insightfulness and its deep learning are simply unbeatable – unanswerable. They hold out a good prospect of the judgment becoming the law on the issues involved in the two cases. Certainly, they establish Justice Oguntade as a hero of our new democratic experimentation which began in 1999.

    Whilst Governor Fashola’s public acknowledgment of Justice Oguntade’s monumental contribution to our democratic experimentation should be complimented, the honour of a dinner party should be augumented with something more concrete and enduring – a statue in a public place, the naming of a street or public building after him, etc.

    It is saddening that Justice Oguntade is retiring from the Supreme Court at the “young” age of 70 years. I say “young” because, although 70 is an advanced age, the learned Justice still looks young, strong and fit, which makes it sad that the nation should lose his services at the apex Court where the maturity, wisdom and learning that come with age and long years of experience are sorely needed. The decline of standards in the apex Court is certainly attributable in part to what I ventured else to call “the pruning knife of compulsory retirement.” A spate of compulsory retirements has denuded the Court of its best minds, resulting in a certain amount of intellectual poverty in the Court and a consequent lowering of the quality of its judgments – Fatayi Williams, Eso, Oputa, Obaseki, Bello, Karibi-Whyte, Nnameka-Agu, Uwaifo, Ayoola. And now Oguntade. Something needs to be done to halt the drain.

Professor Ben O. Nwabueze

March 12, 2010

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