Justice Abba-Aji: He who alleges must prove

November 14th, 2018

By Lillian Okenwa

After investigations on al­legations of sexual mis­conduct levelled at United States’ Justice Brett Kavanaugh, a letter to the Senate Republicans from the Senate Judiciary Com­mittee Chairman said none of the witnesses provided evidence to back their claims. Subsequent­ly, he was cleared and elevated to the Supreme Court of the United States.

A few weeks ago, one of his ac­cusers not only admitted that she lied to the congress but re­vealed that she had never met Kavanaugh.
Nigeria’s Chief Justice (CJN), Hon. Justice Walter Samuel N. Onnoghen has not minced words in his continual charge that no corrupt judicial officer will be spared. He even expanded the definition of judicial corruption to include giving of judgments or orders based on any considera­tion other than legal merit and not just bribe-taking.

Since the October 2016 mid­night raid on justices’ homes by men from the Department State Security (DSS) the integrity of Nigeria’s judiciary has been greatly battered. However, while there have been disreputable acts by some members of the bench in alliance with some in the bar, many judicial officers have dis­charged their responsibilities reputably.

And so when Civic Society Network Against Corruption (CSNAC), through its Chairman, Mr. Lanre Suraji, urged President Muhammadu Buhari not to for­ward Hon. Justice Uwani Musa Abba-Aji’s name to the Senate for confirmation as a Justice of the Supreme Court of Nigeria, on the basis that she was under cor­ruption investigation by security agencies for allegedly accepting a bribe from a senior lawyer who is currently facing trial in court, some questions arose.

Suraju, who is a member of the NJC’s Corruption and Fi­nancial Crime Cases Monitoring Committee set up last year by the CJN, was said to have threatened to challenge Abba-Aji’s appoint­ment in court should President Buhari assent to her elevation to the Supreme Court. Nonethe­less, the National Judicial Coun­cil (NJC) has since reacted to the call asserting that there are no allegations of corruption against her. The NJC in a statement by its Director of Information, Mr. Soji Oye, explained that contrary to CSNAC’s claim, Justice Abba-Aji has no pending corruption case to disqualify her from be­ing appointed to the apex court’s bench.

The NJC had at its 87th meet­ing chaired by the CJN on Octo­ber 3 and 4, recommended Jus­tice Abba-Aji, currently serving at Enugu division of the Court of Appeal, to the President for ap­pointment as a Justice of the Su­preme Court. She is from Yobe State.

Her lordship was one of the eight judicial officers, who were directed by the NJC to excuse themselves from duties, effective from November 2, 2016 on the request of the Attorney General of the Federation (AGF) pending the outcome of their investigation by the DSS, on corruption allega­tion. She and others were how­ever directed to resume duties on June 7, 2017 on the grounds that no charges were brought against them by the AGF at the conclu­sion of their investigation.

If the AGF and his team that initially alleged graft failed to bring charges against her at the end of their investigations, why the insistence by CSNAC that she is under corruption investigation by security agencies?

When the NJC in view of no pending corruption case against her and other justices called them back to work CSNAC raised no posers. All that while, she adjudicated over matters and wrote judgments. If she is unfit to sit on the apex court bench on account of alleged corrupt practices, does it then mean that justices with corruption tenden­cies are suitable for the Court of Appeal Bench? Would it not amount to grave injustice for CS­NAC to be silent over the recall to the Court of Appeal bench, of a judge that is likely to pervert the course of justice? Would it not be a great travesty of justice to suf­fer litigants the agony of going on appeal when it is known that they will not get justice? CSNAC needs to answer these questions and more because in their opin­ion she is unfit for elevation but kept mum when she was recalled.

But for routine appeals to the Supreme Court by lawyers and litigants who are dissatisfied with some decisions of the ap­peal court including that of her lordship, no appeal since her el­evation the Court of Appeal and indeed since her recall after the DSS debacle borders on pervert­ing the course of justice or graft.

In a recent address to women judges, Hon. Justice Amina Au­gie of the Supreme Court of Ni­geria had this to say: “In writing our judgments, we must seek to interpret the law justly, fairly and expeditiously, to ensure that justice is not delayed. We must strive to ensure that we are not only applying the law as it is, but adopting philosophical and nor­mative approaches to interpret­ing the law.

“The end result should be a ruling or judgment that deliv­ers justice while simultaneously building on existing jurispru­dence… We are judges first, then women; so we must always pre­sent ourselves as qualified and competent candidates; not as alternative choice or affirmative choice.

“As judges who are women, our roles are no different from our fel­low male judges; our role as judg­es is to play a part in the creation of jurisprudence. That is, women that recognise the importance of human rights, regardless of the

field of law in question, particu­larly so for judges in common law jurisdictions.

“We must ensure that in inter­preting and applying the law, we are playing a representative role as agents of change; that the law does not only have a human face but also has a woman face.”

So far, the above charge has not been controverted as it con­cerns Hon. Justice Uwani Abba-Aji.

The law is clear about the par­ty on whom the burden of proof lies. The onus, the obligation has always been on the party who makes an allegation to prove the claims made against the other party. As at today, our laws pro­vide that a party is presumed in­nocent while the other side bears the burden of proof. The law is trite that he who asserts a fact must prove it, and where enough and relevant evidence are not ad­duced, then it is he who has failed to produce the evidence that will fail in his case.

Delivering the lead judgment in George Adumu v. The Comp­troller of Prisons, Federal Pris­ons, Aba & Ors.; (2013) LPELR-22069(CA) Abba-Aji disclosed that: “An appellate Court will not ordinarily interfere with exercise of discretion by a Court except where the Court acted under a misconception of Law or under misrepresentation of fact in that it either gave way to irrelevant or unapproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discre­tion on wrong or inadequate ma­terials and in all cases where it is in the interest of justice to inter­fere…” P. 39, paras. D-G.

Similarly, in Mr. V. O. Ola Jegede & Ors. v. Atoki Oluwas­esan, (2011) LPELR-8981(CA), she held: “The only situations when an appellate court may ­interfere with such findings are in circumstances such as where the trial court did not make proper use of the opportunity of see­ing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted cred­ible evidence or took an erro­neous view of the evidence ad­duced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the founda­tion of the case rests, the appeal court should not abdicate its own responsibility and rubber stamp the error, but should intervene.” P. 18-19, paras. E-A.

So far none of her decisions on the Court of Appeal bench have either been labelled as per­verse or contrary to the above cited position of hers. CSNAC is yet to provide any supporting ev­idence to show that her lordship is under any investigation, cor­ruption or otherwise. No further claims of graft have been made by the AGF and his team; nor have they refuted NJC’s claims by insisting they have not cleared her.

The NJC still smarting over the October 2016 embarrass­ment and presently exceedingly circumspect in its affairs particu­larly in the area of judicial disci­pline could not have readily sent Abba-Aji back to the appellate court bench laden with tar.

It must be recalled that when Hon. Justice Sylvester Nwa­li Ngwuta was indicted and charged to court as well as the Code of Conduct Tribunal by the AGF, neither the CJN nor the NJC made any move to stop it. The law was allowed to take its course and at the end he was ac­quitted in both places.
Likewise, the NJC could not have interfered or intervened with the prosecution of Justice Abba-Aji had she been found wanting. Having been exculpat­ed, it is only just that she went back to her job. Again not having been found wanting, why should her elevation be questioned?

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