By Femi falana
The Honourable Justice Anthony Nnaemezie Christopher Aniagolu served as Chief Judge of Anambra State from 1976 to 1978 and was a Justice of the Nigerian Supreme Court from 1978 to 1987. He was a Judge whose integrity and confidence led him to do justice to people from all walks of life. For the erudite Judge, the law spoke the same language in a democracy and under military rule. His Lordship never allowed any decree to tie his hands and prevent him from doing justice to the parties involved in any case.
The well -written judgments of Justice Aniagolu are regularly cited by local and foreign courts. Even though his influence is noticeable in many areas of Nigeria’s adjectival and procedural law the contribution of the Judge to the development of the nation’s human rights jurisprudence is particularly remarkable.
Upon attaining the mandatory retirement age of 70 years in 1987, Justice Aniagolu bowed out of the bench in a blaze of glory. But barely a year later, he was appointed the Chairman of the 567-member Constituent Assembly by General Ibrahim Babangida, the then head of the military junta. Even though the Assembly carried out the assignment with dispatch and produced the 1989 Constitution, General Babangida and his colleagues in the Armed Forces Ruling Council conspired to sabotage the extremely expensive transition program in contravention of Decree No 25 of 1987 by annulling the results of the June 12, 1993 presidential election won by Bashorun MKO Abiola. Hence, due to the abortion of the Third Republic by the military junta the 1989 Constitution did see the light of day.
Based on his frustration and disappointment with the illegal action of the military junta, Justice Aniagolu decided to document his experience in a book entitled “The Making of the 1989 Constitution”. The public presentation of the book by the Aniagolu Family could not have come at a more opportune time than now that the members of the National Assembly are currently engaged in another amendment of the 1999 Constitution. In view of the relevance and topicality of the issues addressed by the jurist it is hoped that the members of the National Assembly and the various Houses of Assembly of all the States of the Federation will pay due attention to the book.
Human Rights Cases:
It was the strong belief of Justice Aniagolu that judges have an abiding duty to defend the fundamental rights of citizens. To that extent, he never wavered in the interpretation of the law as he consistently condemned the use of power by the executive and powerful people to abuse the human rights of the weak and vulnerable people in the society. To appreciate the enormous contributions of Justice Aniagolu to the development of the nation’s human rights jurisprudence it is pertinent to refer to his some of his judgments which have enhanced the observance of human rights of the Nigerian people.
•Right of a citizen to a speedy and fair hearing
In Ariori v Elemo (1983) N.S.C.C. 1, the appeal arose from the delay between the date the case was adjourned for judgment in the High Court and the date the judgment was delivered–a period of one year and three months. In the leading judgment of Kayode Eso JSC the case was ordered to be remitted to the High Court for a fresh trial before another judge as it was found that the long adjournment and the consequent delay had beclouded the mind of the trial judge in the recollection and appreciation of the facts and issues in the case.
In his contributory judgment, Aniagolu JSC held that “In the determination of cases by courts of the land, speedy trial and fair hearing are an integral part of justice. Inter alia, a State exists to do justice–justice to the State and justice to the citizens. The doing of justice is an obligation which the State owes to its citizenry and which it exercises principally through its third arm, namely, the Judiciary. Any functionary of the Judiciary to whom the discharge of this sacred obligation is entrusted on behalf of the State owes it as a duty to the corporeal of the citizenry, of which the State is a representation and a crystallization, to do undiluted and unmutilated justice to which society is entitled and from which no member of the society is permitted to derogate compromise.”
•Duty of Judges to deliver judgments within 3 months
Section 258 of the 1979 Constitution imposed a duty on Judges to deliver judgments not later than 3 months after the conclusion of hearing in a case. Notwithstanding such constitutional stipulation many judgments were delivered by Judges after 3 months. In setting aside the judgment of the trial court in the case of Chief Dominic Onuorah Ifezue v Livinus Mbadugha …Aniagolu JSC insisted that the fundamental right to fair hearing guaranteed by section 33 of the 1979 Constitution should not be invoked to justify the delivery of judgments after the 3 months stipulated by section 258 of the said Constitution. According to his Lordship:
“Whereas S.33(1) and (4) enjoin the courts to hear cases expeditiously, leaving the discretion to the courts, as indeed it must do, having regard to varying attendant circumstances that can befall a case in the course of hearing – availability of witnesses; illness of parties and witnesses, the pressure on the courts by reason of other cases to be heard; the strain on the judges who may thereby be compelled to be absent on one or other occasion; the indigency of parties resulting in. their inability to finance promptly the monetary aspects of the litigation or criminal proceedings, and a whole host of other circumstances which may delay the hearing of a case or impede its progress – S. 258 (1) deals with the situation where the hearing of a case has been concluded, including the final addresses, leaving only the judgment to be delivered, a final assignment remaining with the trial judge only, who has only t make up his mind and give expression to it in a considered judgment.”
•Duty of tribunals of inquiry to respect fundamental right of citizens to fair hearing
In the case of Sofekun v. Akinyemi & Ors (1980) 5 – 7 SC, 25, sometime in 1973, the appellant, a registered medical practitioner and Senior Consultant in Ophthalmology in the public service of Western State, was accused of certain criminal offences. The appellant was tried for these offences, consisting of four counts, by an Investigating Panel set up by the Commission. He was found guilty and dismissed from the service. In setting aside the dismissal, Justice Aniagolu said “It is essential in constitutional democracy such as we have in this country, that for the protection of rights of citizens, for the guarantee of the rule of law, which include according to fair trial to the citizen under procedural irregularity, and for checking arbitrary use of power by the executive or its agencies, the power and jurisdiction of courts under the Constitution must not only be kept intact and unfetted but also must not be nibbled at …”
•Execution of a convicted armed robber whose appeal was pending at the Court of Appeal
In Nasiru Bello v Attorney-General of Oyo State (1986) 1 S.C 1-76, the appellants’ father was charged with armed robbery, tried, convicted and sentenced to death. Even though the convict filed an appeal at the Federal Court of Appeal against the judgment of the trial court the deceased was however executed in execution of the sentence of death passed on him by the High Court of Oyo State after it had convicted him of the offence of armed robbery. Both the High Court and Federal Court of Appeal dismissed the case of the appellants. But the Supreme Court allowed the appeal.
In deprecating the execution, Aniagolu JSC said that “This is the first cases in this country, of which I am aware, in which a legitimate Government of this country past or present colonial or indigenous hastily and illegally snuffed off the life of an Appellant whose appeal had vested and was in being, with no order of Court upon the appeal, and with a reckless disregard for the life and liberty of the subject and the principles of the Rule of Law. The brutal incident has bespattered the face of the Oyo State Government with the paintbrush of shame.”
•Failed Attempt to derobe Chief Gani Fawehinmi as a legal practitioner
In Legal Practitioners Disciplinary Committee v Chief Gani Fawehinmi 1985) 1 NWLR (Pt 7) 700, Chief Gani Fawehinmi was accused of touting and advertising by the office of8 the Attorney-General of the Federation and Minister of Justice, Chief Richard Akinjide SAN with the connivance of the leadership of the Nigerian Bar Association at the material time. Gani was given 14 days within which to react to the 3-count charge alleged by the Attorney-General. But 3 days later, the Attorney-General summoned him to appear before a Disciplinary Committee. At that stage, Gani rushed to the Lagos High Court for the enforcement of human right to fair hearing.
The presiding judge, Candide-Johnson J. (as he then was) halted the apparent inquisition of Gani. The Court of Appeal upheld the ruling but the Attorney-General and the leaders of the Bar pursued the matter to the Supreme Court. In dismissing the appeal Justice Aniagolu who read the leading judgment of the Court said that, “Not to have allowed Gani to make any explanation before preferring charges, would have been presumptuous of the Attorney General. One would have thought that an Attorney-General who by his training as a lawyer, and his position as Attorney-General, would have been endowed with a sharper instinct of the notions of natural justice than most others, would have accorded a colleague whose conduct was being pilloried, that elementary justice of hearing out his explanation, before proceeding to prefer charges and conducting his trial. The rule: audi alteram partem, runs as a principle inviolate through the blood of every lawyer.”
•Illegal confiscation of an imported car by the Federal Government
In Margaret Chinyere Stitch v Attorney-General of the Federation (1986) LPELR-SC.88/1985, the Appellant, a legal practitioner and married to a German imported a second hand Mercedes Benz car into the country from Western Germany. The car arrived the Lagos port on February 29, 1982. She promptly applied for import duty which was not approved until April 29, 1982. In the meantime, a new policy the rate of duty on the type of the car from 33 1/3 % to 500%. She paid the duty of N1499,22 as against the new duty of N14,500.00. Having refused to pay the new duty fee Respondent refused to release the vehicle to her. The car was sold to one Mr. O.O. Onifade who cannibalised it. The case filed by the plaintiff against the confiscation and sake of the car was dismissed. The appeal filed against the decision of the trial court was dismissed by the Court Federal Court of Appeal. But the Supreme Court reversed the decisions of both lower courts.
In the leading judgment of the Supreme Court, Justice Aniagolu ordered that the appellant must be entitled to receive from the tort feasor an amount which will buy her a second-hand Mercedes Benz 280 saloon car in good working condition, with accessories as contained in the car she imported into the country. Accordingly, the case was remitted to the High Court to take evidence to determine the value of the car on 3rd April 1982.
In condemning the action of the Minister, Justice Aniagolu said that “it been a principle established by the court that once a prima facie case of misuse of power had been established, it would be open to the courts to infer that the minister acted unlawfully even if he declined to supply a justification at all, or supplied justification which is untenable in law. The principle basic in all common law countries, including Nigeria, is that under the universally accepted rule of law, the minister must act fairly and not to the prejudice of the citizen. The courts have inclined, over the years, to the protection of the rights of the citizen even in times of war when the defence of the realm had all been paramount.”
Inquiry into Maitatsine Riots in Kano
In recognition of his unalloyed commitment to justice and fair play, Justice Aniagolu was appointed to head the Judicial Commission of Enquiry set up by the Federal Government to probe the remote and immediate causes of the Maitatsine riots which broke out in Kano in December 1980. In its comprehensive report the Commission found that the Maitatsine movement was led by Muhammadu Marwa, a Cameroonian who had resided in Kano where he opposed the Nigerian State without any challenge. The report confirmed that the crisis led to 4,000 deaths and destruction of properties worth hundreds of millions of Naira. The Commission dismissed the alleged involvement of President Muammar Gaddafi Libya and other suspected foreign elements in the crisis but urged the Government to address the socioeconomic conditions that attracted youths to Marwa as well as the porous nature of the nation’s borders. Since the recommendations were ignored by the Government the country has continued to witness religious riots which have since graduated into terrorism in the North West and North East Zones of the country.
The Making of the 1989 Constitution
Having interpreted various provisions of the 1963 and 1979 Constitutions at the High Court and apex court for 30 years his Lordship brought his wealth of experience to bear in preparing the 1989 Constitution. Although the Constitution was never promulgated a few of the sections have been adopted by the Federal Government and a number of State Governments. Some of the novel provisions of the Constitution are examined below:
A. Duty of the Government to investigate the unlawful killing of citizens
Section 32 of the 1989 Constitution provided for right to life. But based on the spate of extrajudicial killings and having regard to the case of Nasiru Bello v Attorney-General of Oyo State (supra) the proviso to Section 32 was to the effect that “a judicial inquiry to determine the cause of the death of such person shall be held within one month” and that “judicial inquiry” includes a coroner’s inquest.” The section has influenced the enactment of Coroners Law in Lagos State and a few other states in the country. Under such laws it is mandatory for a coroner to investigate the cause of unnatural death that occurs in the State.
B. Compulsory teaching of indigenous languages
Owing to the fear that many of local languages might become extinct on account of the colonial mentality of our elite who speak the English language in public and in their homes, section 19 (4) of the Constitution provided that “Government shall promote the learning of indigenous languages.” A number of State Governments have since made the teaching of indigenous languages compulsory in public schools.
C. Ban on keeping Juveniles in correctional centres
To stop the dangerous practice of keeping young persons with convicted adults in the Prisons section 34 (8) of the Constitution provided that “Juveniles accused or convicted of offences shall be kept in remand homes or reformatory centres and their treatment including rehabilitation shall be the underlying principle for their custody.” Section….of the Child’s Rights Act.
D. Cross carpeting by elected legislators
To put an end to the opportunism of politicians who dump the political parties that sponsored them for elective positions and thereby shortchanging the electorate section 39(b) of the Constitution stated that the fundamental right of citizens to freedom of assembly is guaranteed provided that “a person elected to a legislative house on the platform of a political party shall not be entitled to join or declare himself to be a member of the other political party until the general election next following his election.”
E. Challenge of human rights violations in the High Court
Whereas section 42 of the 1979 Constitution had empowered a victim of human rights abuse to approach the High Court in the State where the violation occurred for legal redress there was always confusion over the choice between the Federal High Court and State High Court. To take care of the confusion section 44(1) of the Constitution provided that “ Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State or in the Federal Capital Territory, Abuja, in relation to him may apply to a High Court having jurisdiction in that area for redress.” Since the confusion has continued we call on the National Assembly to ensure that section 46 (1) of the 1999 Constitution reflects the provision in the 1989 Constitution.
F. Compulsory acquisition of the solid minerals, mineral oils and natural gas by the Federal Government
Section 42 (3) of the 1989 Constitution states that
“Notwithstanding the foregoing provisions of this section, the entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly.”
In line with the constitutional provision all the mineral resources of the nation were taken over by the Federal Government on behalf of the Nigerian people and managed under the Petroleum and the Nigerian National Petroleum Corporation Act. It is pertinent to note that section 42 (3) of the 1989 Constitution is in pari materia with section 44 of the 1999 Constitution.
Under the defunct military junta the oil blocks belonging to the Federation were hijacked by the Federal Military Government. In 1986, General Ibrahim Babangida (retd) allocated some of the nation’s oil blocks to his personal friends and cronies. The illegal practice has since continued to date in utter violation of section 16 of the Constitution which stipulates that the commonwealth shall not be concentrated in the hands of a few people or a group. Like the oil and gas resources the solid minerals of the nation have been taken over by the Federal Government. It is the Federal Ministry of Minerals that exclusively manages the solid minerals owned by the Federation. The Ministers of the Petroleum Resources and Mines and Steel Development are appointed by the President and approved by the Senate without any consultation with the State and Local Governments.
The Nigerian National Petroleum Corporation was established by the Federal Military Government with seed fund from the Federation Account. But due to the gross mismanagement of the Corporation by the Federal Government it has been unbundled by the National Assembly. Even though the NNPC is a Federation Enterprise the Federal Government has taken over the companies established pursuant to the Petroleum Industry Act. The Board members of the NNPC and other subsidiary companies have been appointed by the President and confirmed by the Senate.
In view of the clear provisions of the Constitution on the ownership of the oil, gas and solid minerals we hereby call on the State Governments and Local Governments to demand for the joint management of the said commonwealth in the interest of the Nigerian people. Accordingly, the Petroleum Industry Act, the Minerals Act and other laws and regulations for the management of the oil and gas sector be amended by the National Assembly to reflect joint ownership, control and management of the oil and gas industry by the three tiers of Government in Nigeria.
During the era of military rule when the Constitution was suspended and the country was ruled by Decrees which ousted the jurisdiction of the courts, Justice Aniagolu and his colleagues recognised the historic role of the judiciary in defending the rights of the people. In particular, the highest echelon of the judiciary ensured that the task of promoting the rule of law over the rule of might was discharged with courage, integrity and fidelity in the rule of law. The contributions of each of the Justices of the apex court including Justice Aniagolu during those unforgettable years of the judiciary have been well documented in Professor Itsejuwa Sagay’s famous book entitled “Legacy for Posterity: The Work of the Supreme Court (1980-1988)”.
For his meritorious service to the nation, Justice Aniagolu was conferred with two national honours: Officer, Federal Republic of Nigeria, 1964 and the Commander of the Order of the Niger in 1981 by the Federal Government. He was a devout Catholic, Knighted by the Pope with the insignia of KTSS (Knights of Sylvester) and KTCSSS (Knight Commander with Star of Saint Sylvester). On account of his contribution to the development of his community he was honoured with the traditional titles of Ochudu Udi and Eze-Udo Eke in Udi Local Government Area of Enugu State. The death of Justice Anthony Nnamezie Aniagolu in 2011 ended a distinguished and brilliant legal career that spanned over four decades. The family should take solace in the undeniable fact that Justice Aniagolu lives forever in all courts in search of justice for the majority of the people
(Above are excerpts from the Keynote Address delivered by Femi Falana SAN at the 4th Justice Aniagolu Memorial Lecture (10th Year Remembrance) on The Theme: The 1989 Constitution hosted by Godfrey Okoye University, Enugu on October 21, 2021)