Punishing the just for the unjust: A plea for justice  

justice  

THE VENERABLE SEGUN ADEMOLA ALLI Dip. Ad.Ed, B.A. (Hons), LL.B (Hons)

             Kep House, 25 Alafia Street, Mokola, Ibadan. Oyo State of Nigeria.

Tel: 08023251591. Email: [email protected]

03rd May, 2018.

 

The Chief Justice of Nigeria,

Supreme Court of Nigeria,

Three Arms Zone,

Abuja.

 

Your Lordship,

 

RE:APPEAL NO. SC.642/2013 BETWEEN REV’D SEGUN ADEMOLA ALLI V. NATIONAL UNIVERSITIES COMMISSION AND LEAD CITY UNIVERSITY, IBADAN.

 

PUNISHING THE JUST FOR THE UNJUST: A PLEA FOR JUSTICE.

 

I am the Appellant in the above mentioned appeal which was filed by me as Rev’d Segun Ademola Alli (as I then was) at the Supreme Court on 11th September, 2013.

 

I am constrained, with great respect, to approach you in this manner to protest against the injustice done to me in the above mentioned appeal by the Supreme Court (hereinafter referred to as the Court) in its Ruling delivered on Friday, 20th April, 2018 on my application to the Court to set aside the Bench Ruling delivered by the Court, per Onnoghen, JSC (as he then was) on Monday, 29th February, 2016.

 

Pursuant to the Notice of Appeal filed in the instant appeal by me on 11th September, 2013, I filed my Brief on 03rd December, 2013 while the 1st Respondent filed its Brief on 03rd February, 2014 but the 2nd Respondent did not file any brief. I filed a Reply Brief on 19th February, 2014. The implication of this is that both the Appellant and the 1st Respondent have joined issues in the appeal, and also that the Court is fully seized of the matter. The 2nd Respondent who did not file anything was deemed to have conceded the appeal.

My Lord, grant me the indulgence to inform you that the issues in the said appeal are:

  1. The retrospective approval that the 1st Respondent granted to the 2nd Respondent’s Law programme in 2008, of which I am a beneficiary having graduated in 2009.

 

  1. The declaration as invalid the accreditation exercise that the 1st Respondent conducted on the 2nd Respondent Law programme which affected, and still affects, my interest.

 

  1. The issue of my locus standi to sue the 1st

 

It was, therefore, a great surprise to me that, over one year after briefs have been filed and exchanged between the Appellant and the 1st Respondent, and when issues have been joined, the 1st Respondent filed an application on 26th March, 2015 to the Court praying that the appeal be dismissed on the ground that it has become academic on the basis of a fresh approval that it had given to the 2nd Respondent on 03rd December, 2014 to commence a new Law programme “effective from 2014/2015 academic session”; a subject matter of this instant appeal, and during the pendency of this appeal. (Underlining supplied)

My Lord, permit me to inform you that against the said application of the 1st Respondent, I filed a Counter-Affidavit and a Brief on 13th April, 2015 wherein I deposed to several facts that made the said application incompetent and incurably defective and thereby challenged the jurisdiction of the Court to entertain it.

The said application of the 1st Respondent was heard by the Court on Monday, 29th February, 2016 and the Court delivered a bench ruling on that day without any recourse to my Counter-Affidavit and without even a mention that the application was opposed by a Counter-Affidavit. The Court in its said bench ruling delivered by His Lordship, Hon. Justice W.S.N. Onnoghen, JSC (as he then was) granted the 1st Respondent’s prayer that the appeal has become academic by virtue of the said “fresh approval” given to the 2nd Respondent to commence Law programme during the pendency of this appeal and dismissed my appeal, without hearing it on its merits To arrive at the said bench ruling, the Court acted on, relied on and based its said bench ruling on a photocopy of a public document.

My Lord, kindly grant me the grace to inform you that the Court discountenanced my said counter-affidavit wherein  inter alia I pointed the attention of the Court to the photocopy of the Public Document attached as Exhibit ‘KGA1’ to the 1st Respondent’s said application. Similarly, the Court also failed to consider my objections to the 1st Respondent’s application as contained in my said Counter-Affidavit and Brief in its said Bench Ruling. A Certified True Copy of the said bench ruling is hereby attached as Annexure ‘A’.

Consequent upon this development, my Lord, I filed a motion on 31st March, 2016 to the Court to set aside its said Bench Ruling wherein I contended that the ruling was based on a photocopy of an Uncertified Public Document (EXHIBIT ‘KGA 1’) and which was given without consideration given to my counter-affidavit which occasioned a breach of fundamental right to fair hearing, among other Grounds. A copy of the said Exhibit ‘KGA1’ as attached to the 1st Respondent’s said application of 26th March, 2015 is hereby attached as Annexure ‘B’.

It is instructive to state that after three adjournments on 16th June, 2016, 1st November, 2016, 22nd May, 2017, my said application to set aside the said Bench Ruling was heard on 22nd January, 2018 by the Court, and a Ruling was delivered on the Friday, 20th April, 2018 wherein the Court in the leading ruling delivered by Hon. Justice Peter-Odili, JSC refused my application and held that my said application was an abuse of court process without giving the required consideration to the issues of denial to fair hearing and the use of a photocopy of public document as alleged in my said application. A copy of the said ruling is hereby attached as Annexure ‘C’.

My Lord, by these said Rulings of the Court in my appeal I am of the strong conviction that the Court is punishing the just for the unjust. Please, permit me to state that my application to the Court to set aside its said Bench Ruling (Annexure ‘A’) contained fundamental reasons why the Court ought to have set aside its said Bench Ruling. For example, the issues of breach of fair hearing and reliance placed on a photocopy of a public document which was the only leg on which the ruling was based.

In this regard, it is instructive to state that the Court had set aside its judgment/rulings which were found to have been given in similar circumstances with my said application filed on 31st March, 2016. My Lord, permit me to cite a few examples where the Court set aside its ruling which was given in breach of fair hearing for failure to consider a party’s counter-affidavit.

 

  1. In CITEC INTERNATIONAL ESTATE LTD & ORS. V. JULIUS OLUWOLE FRANCIS & ORS. [2014] 5 SCM 91 the Court per Okoro, JSC held, in setting aside its ruling, that: “In Order 6 Rules (2) and (4) of the Rules of this court, in an application for leave to appeal or for enlargement of time within which to seek, a respondent may, if he so desires, file a rely in counter-affidavit. It follows that in considering the application for leave to appeal, the court has a duty to also consider the counter affidavit of the Respondent before arriving at a decision. Failure to consider the counter affidavit, as was done in this case is not only an irregularity but a denial of fair hearing to the Respondent/Applicant herein.” (Underlining supplied).

 

  1. In ODEDO V. PEOPLES DEMOCRATIC PARTY & ORS [2015] 8 SCM 121 the Court per Nweze JSC deprecated the denial of the applicant’s right to fair hearing when the noble lord held that: “Unarguably, the lower court’s approach was an unmitigated violation of the appellant’s right to fair hearing as entrenched in the Constitution. In one word, what transpired thereat on February 2, 2015, with regard to the said Bench Ruling, was a miscarriage of justice; failure of justice; or, simply, justice inconsistent with the Law or a juridical aberration.”

 

  1. In AKITI V. OYEKUNLE (2018) LPELR-43721 (SC) delivered on Friday, 9th February, 2018, the Court per Peter-Odili, JSC held that a breach of fair hearing is a ground for the grant of an application to relist an appeal.

My Lord, in view of the above examples, the refusal of the Court to grant my application portends a situation of not treating equals alike. Permit me to say that the said ruling of 20th January, 2018 constitutes a breach of my constitutional right not to be discriminated against as guaranteed by Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). I wish to contend that Law cannot have two faces, one to smile on one and the other to frown against another in the same circumstances as it has occurred in my case when juxtaposed with the above quoted decisions of the Court.

In essence, I humbly state that the procedure adopted in the said proceedings of 29th February, 2016 that produced ANNEXURE ‘A’ was such as to deprive the ruling of the character of a legitimate adjudication.

In the same vein, my Lord, permit me with utmost respect to quote what you were reported to have said recently on corruption in the judiciary and on the poor public perception of the judiciary:

“The menace is not limited to bribe-taking but included all judgments or orders given based on any consideration other than legal merit.”  See: The Punch, Tuesday, 20 March, 2018, Page 9.

“I consider the poor public perception of our arm of government a grave concern that requires special effort to correct by telling the world the true state of things in the judiciary.”  See: Apex Quarterly Magazine reported by Sketch Online, April 25, 2018.

With profound respect, my Lord, permit me to contend that the said Rulings delivered in my appeal cannot be said to have been based on “legal merits” as they go against the Constitution, the Law and the judicial precedents that have been laid by this Court on the same issues raised in my application.

In addition, my Lord, permit me to say and contend that these said Rulings contained grave implications for the rule of law and administration of justice as they are contrary to the well established judicial precedents of the Supreme Court on the doctrine of fair hearing; on matters based on affidavit evidence; cases/judgments based on uncertified public documents; and, on jurisdiction of court on issues bothering on lis pendens and incompetent process which, with utmost respect, I contend have not been followed in the said Rulings delivered in this appeal.

My Lord, going by Annexure ‘A’ my right to fair hearing was breached as there was neither a mention that I did not file a counter-affidavit nor same was considered. This is a denial of my right to fair hearing before the Court. It, therefore, follows that having been denied my constitutional right of fair hearing, it will be unjust to punish me as it has been done in this instant appeal as an application to set aside a Ruling based on denial of fair hearing is not a species of abuse of court process.

My Lord, for the Court to allow the fresh approval granted during the pendency of the appeal before it as a ground to dismiss it “will send a rather dangerous signal to a genuinely aggrieved plaintiff/appellant that he cannot obtain redress for a wrong committed by a defendant in some vantage position.”

It is instructive to state that, at the hearing of my said application on 22nd January, 2018, the 1st Respondent’s Learned Counsel while opposing my said application and when asked by the Presiding Justice at the said hearing consequent upon my submission that the 1st Respondent’s grant of the said fresh approval to the 2nd Respondent was done during the pendency of this instant appeal admitted in the open court, before the panel of Justices, that “ it was during the pendency of this appeal when briefs have been filed and exchanged” that his client gave approval to the 2nd Respondent to commence a fresh Law programme.

My Lord, it is, therefore, my contention with utmost respect that the Court has not done justice in dismissing my appeal pursuant to 1stRespondent’s act to foist a fait accompli on the Court; and, by so doing the Court discountenanced the principle of lis pendens by refusing to grant my humble application to the Court to set aside its said Bench Ruling.  I am left with the impression that the just is being punished for the unjust in refusing to set aside its said Bench Ruling and restore my appeal to be heard on its merit.

It is instructive to state that the Court has in a plethora of decisions that “a court, which has jurisdiction to entertain an action will not subsequently lose that jurisdiction simply because a Defendant in some vantage position and in complete disregard for the outcome of the pending suit goes ahead to do that which is sought to be prevented in the suit.” See: Adeogun v. Fashogbon [2008] 11 SCM 1 @ 14; Adepoju v. Olona [2012] 1 SCM 38 @ 50; Lau v. Peoples Democratic Party (2017) LPELR-42800 (SC).

My Lord, in addition, under Section 90 (1) (c) of the Evidence Act 2011 it is the provision of law that only a certified copy of public document, “but no other secondary evidence is admissible,” that can be acted upon by a court in a case before it. However, in the instant appeal, the Court relied, acted and based its said Bench Ruling of 29th February, 2016 (Annexure ‘A’) on a photocopy of an Uncertified Public Document, a fact that was deposed to in my said Counter-Affidavit which was discountenanced by the Court, as no mention was made that I filed a counter-affidavit in its said Bench Ruling delivered on 29th February, 2016 (Annexure ‘A’). This fact was also alluded to in the Brief in support of my said Counter-Affidavit which was also discountenanced by the Court in Annexure ‘A’. In addition, this fact was also reinstated in my said application filed on 31st March, 2016 praying the Court to set aside the said bench ruling of 29th February, 2016.

However, all these were discountenanced by the Court; instead the Court in the said Bench Ruling ascribed the affidavit in support of the 1st Respondent’s motion to me (Appellant) when it said: “The motion filed on 26/3/15 prays for the dismissal of the appeal on the ground that the same has been overtaken by events and consequently academic. It is supported by an affidavit of 16 paragraphs on which the appellant relies as well as exhibit AGA1(sic).”(Underlining supplied)

My Lord, it is, therefore, my strong contention that there was no base for the said Bench Ruling and the Ruling delivered on 20th April, 2018 which was equally based on the content of ANNEXURE ‘B’. In AROMOLARAN V. AGORO [2014] 12 SCM 116 @ 134-135, the Court per Onnoghen, JSC (as he then was) held that a photocopy of a public document is not admissible as secondary evidence except a certified copy of the public document. In that case, the Court held: “Therefore, without Exhibit P7, it is clear that the action for libel by the respondent cannot be proved and is liable to be dismissed.” Per Onnoghen, JSC (as he then was)

Following from the above, my Lord, it is instructive to state with great respect that without Annexure ‘B’ the findings of the Court at Paragraph 2, Page 2 of Annexure ‘A’ and at Paragraph 2, Page 30 of Annexure ‘C’ which were based on Annexure ‘B’ cannot be proved.

With great respect, my Lord, it can be safely said that the Court in placing reliance on, acting on and basing its ruling on a photocopy of a Public Document has undertaken the amendment of the provision of the Evidence Act (supra), a duty which it is not competent to undertake. This much was succinctly put by His Lordship, Hon. Justice W.S.N. Onnoghen JSC (as he then was) in Agro Allied Development Ltd. v. M.V. Northern [2009] 6 SCM 1 @ 10, Paras. B-F as follows: “It is settled law that the duty of the courts is simply to interpret the Law or Constitution as made by the legislature or the framers of the Constitution. It must, therefore, be borne in mind always that the courts cannot amend the Constitution or statute, neither can they change the words used in drafting same.” 

My Lord, I humbly state that my application to the Court was to set aside its ruling of 29th February, 2016 which I contend was reached per incuriam; it was not an appeal against the ruling as held by the ruling of 20th April, 2018. It will not augur well for the rule of law to allow the obvious reasons upon which my application was predicated to be discountenanced as to so do will occasion a reversal of well-established principles of law.

In Johnson v. Lawanson (1971) All NLR 58 @ 68 the Supreme Court held that: “I am fully alive to the fact that grave inconvenience may arise from a judgment of this Court in such a matter which reverses a view of law which had been held for upwards of ten years, but when the Court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, if it be followed, inflict hardship and injustice upon generations in the future or of causing temporary disturbance of rights acquired under such a decision, I do not think we should hesitate to declare the law as we find it.”

This was my call on the Court with my said application of 31st March, 2016 which the ruling of 20th April, 2018 declared “irritating, insulting and abuse of court process”, and for which it awarded “the sum of N1m against the Appellant to be paid to the 1st Respondent.” Indeed, my Lord, I view this as punishing the just for the unjust.

My Lord, it is my humble contention that my said application of 31st March, 2016 is in no way an abuse of court process as it was an application praying for a setting aside of the bench ruling on the grounds stated in the motion paper and not a re-litigation of an appeal, as my appeal was never heard on its merits and it cannot justifiably be held that it was heard on its merits.

My Lord, with utmost humility, it is my thinking that the posture of the Court to me in the determination of my said application filed on 31st March, 2016, of which I had a hint, is borne out of my preparing the process myself and appearing in person to conduct my case before the Court. I wish to humbly state that my resolve to appear in person to conduct my said application was borne out of what I experienced in the hands of my former Counsel (of blessed memory) and also owing to my financial incapacity to hire another counsel. Certainly, it was not borne out of daring the Court though it is my constitutional right to appear in person as held in a plethora of decisions of this Court. See: Mosaku v. Ogun [1962] 1 SCNLR 221, Fawehinmi v. N.B.A. (No.1) [1989] 2 NWLR (Pt.105) 494, Atake v. Afejuku [1994] 9 NWLR (Pt.368) 379, and Abdullahi v. Military Administrator of Kaduna State [2009] 8 SCM 1.

To the best of my knowledge, that action of filing an application to set aside a Bench Ruling given on an appeal that was not heard on its merits and prosecuting same personally cannot constitute an abuse of court process. Decided cases by the Court on what constitutes “an abuse of court process” have been considered in a plethora of decided cases. See: Ikine v. Edjerode [2001] 1 SCM 124 @ 148, 156.

I most humbly pray Your Lordship to graciously direct the Court to look into my case again in the interest of justice as I am willing and ready to bring another application to enable the Court in its inherent jurisdiction set aside its order(s) in the firm belief in the position of the Court in Edun v. Odan (1980) All NLR 210 @ 220 that, “The Court of last resort will indeed do justice but must do justice by procedures laid down by the Law and the Constitution.”

Also, as Hon. Justice Chukwudifu Oputa, JSC (of blessed memory) held in Adegoke Motors Ltd. v. Adesanya [1989] 3 NWLR (Pt.109)250 @ 275, para. A, that: “The power of the Supreme Court to overrule itself when it appears that any of its decision is given in error is predicated on the fact that it is better to admit an error than to persevere in error.”

My Lord, I am immensely grateful for your anticipated favourable response to my prayer and plea for justice to be done in my case.

Please be assured of my best regards for your high office.

May God continue to bless you, Amen

Yours faithfully,

Ven. S. A. Alli.

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