By Rabiu Muhammad Gama

INTRODUCTION

I read it somewhere that judges are immortal, and their words are eternal because even if their bodies are no more, they would still continue to rule us from their

graves with their words. I couldn’t agree more. Having attained the statutory mandatory retirement age for the Justices of the Supreme Court on Friday, 5th of August, 2022, Justice Abdu Aboki, JSC, (rtd) bowed out of the Judiciary after about 40 years of meritorious and impactful service.

Hon. Justice Abdu Aboki spent a relatively short time on the Supreme Court Bench. However, his impact and imprint on our judicature would continue to be with us for a very long time. This article is by no means a biography of the learned retired jurist; this article is but a humble attempt to peep into some notable, glowing and characteristically-eloquent pronouncements of the Kano-born learned judex on different legal concepts.

On Locus Standi In the month of March, 2000, that is about 23 years ago, the then Chief Judge of Kano State, Honorable Justice Saleh Minjibir retired from the bench, an acting CJ was appointed in his place. One legal practitioner and indigene of Kano State, Ado M. Bello, instituted an action before the Kano State High Court asking the court to compel the then governor of Kano State to appoint a substantive Chief Judge. The case number is K/111/2001, and was reported in the Law Report of Northern Nigeria (2002).

The right of Ado M. Bello to institute that action, his locus standi to use the Latin term that lawyers use for it, was challenged and vigorously questioned. The Court agreed that he had no business challenging the non-appointment of a substantive Chief Judge for it did not harm him in any way, nor did it harm any other person. The Court, per Aboki J. (as he then was), sent Ado M. Bello home with the following words:

“Section 6(6)(b) of the Constitution of Nigeria does not manufacture locus standi or standing on a plaintiff who in law has none. The section does not clothe locus standi on every Nigerian to institute all types of actions against persons, government or authority because the preamble to the constitution says: WE THE PEOPLE of Nigeria make, enact and give to themselves (sic) the constitution containing the provisions of section 6(6)(b).

“The said section 6(6)(b) does not permit BUSYBODIES to parade the corridors of the courts instigating litigations here and there with a view to instituting an action because it is convenient to do so for fun or in order to boost the ego of a gluttonous litigant”.

Seven years down the line, in the case of Fawahenmi v. President (2007) 14 NWLR (part. 1054), the relentless human rights crusader, Chief Gani Fawahenmi (of blessed memory), sued the then Federal Government under President Obasanjo for, among other things, paying the salary of some of its ministers in foreign currency, which, according to him, was a violation of Certain Political, Public and Judicial Office Holders (Salaries and Allowances etc.) Act No. 6 of 2002.

Just like what happened to Ado M. Bello seven years earlier, the right of Chief Gani Fawahenmi to institute that action was questioned. However, Abdu Aboki, JCA (as he then was), did not only go beyond Abraham Adesanya, as Obasake, JSC, did in the case of Fawahenmi v. Akilu (1987) 4 NWLR (Pt. 67), My Lord took it to a completely different level. After acknowledging the impossibility and/or the absurdity of the Attorney General of the Federation to sue the Federal Government (which he is a part of) where it violates or fails to enforce any provisions of the Constitution or the laws of the Federation, My Lord called for the extension of the frontiers of locus standi, listen to My Lord speaking:

“The question now is who will approach the court to challenge the Government where it violates or fails to enforce any provisions of the Constitution or the Laws where an Attorney-General will not?...in the interest of the public and since the dominant objective of the rule of law is to ensure the observance of the law, it can best be achieved by permitting any person to put the judicial machinery in motion in Nigeria whereby any citizen could bring an action in respect of a public derelict”.

On whether the immunity conferred by Section 308 of the Constitution deprives the beneficiaries the right to Institute Legal Action against another person In A.G Federation v. Abubakar (2007)8 NWLR (Pt. 1034) 117, Abdu Aboki, JCA (as he then was) observed that:

“The operative word under section 308(l)(a) of the Constitution of the Federal Republic of Nigeria 1999, is the word “against”. The word “against” provides a shield or immunity from the institution of any civil or criminal proceedings against the holders of the offices of President, Vice-President, Governors, or Deputy Governors while their tenure subsists. The provision of section 308(1)(a) of the Constitution does not deprive the holders of the offices mentioned under section 308(3) of their rights to personal liberty and fair hearing under the Constitution”.

On the essential ingredient of contempt of court On the issue of what needs to be proved before an alleged contemnor becomes liable for contempt, My Lord, Abdu Abuki, JCA (as he then was), held, in the case of Agbonika &Ors v. Adana (2018) LPELR-45937, that:

“It is a very serious matter for anyone to flout a positive order of a Court and proceed to taunt the Court further by seeking a remedy in a higher Court while still in contempt. A very essential element of contempt is that there must be a positive proof that the terms of the Court order have been broken. Where there is failure to prove this ingredient against an accused person beyond reasonable doubt, the alleged contemnor will not be liable for contempt”.

On Duty on a Party Seeking to Raise Fresh Issue on Appeal. My Lord spent a very short time on the Apex Bench. In spite of that he was still able to make many landmark pronouncements in the cases that he sat on at the Apex Court. I would give two examples. In the case of Obi v. Uzoewulu (2021) 8 NWLR (Pt. 353), Abdu Aboki, JSC, held that:

“On the issue of where a party seeks to raise a fresh issue on appeal, as in the instant case, he must seek the leave of court. Where he fails to do so, the issue, which, ipso facto, is rendered incompetent would be struck out.

On Confessional Statement In one of his very last judgments at the Apex Court, that is the case of State v. Chinedu (2022) 18 NWLR (Pt. 1861), My Lord had this to say about a confessional statement:

“Where a confessional statement is retracted at trial, the court is at liberty to consider it along with other evidence led at the trial. Once the court is satisfied as to its truth, it can safely convict on it.”

However, My Lord further observed that:

“For a confessional Statement to be admissible against an accused person, it must be a free, positive, true, unequivocal, direct and positive confession of guilt”.

CONCLUSION

Here in our midst is a living legend, a legal colossus and an eminent jurist, a judex of the highest caliber, whose erudition, robust intellect and judicial sagacity have always been, and would continue to be, a thing of wonder and admiration.

My Lord is, in the words of the incumbent President of the Nigerian Bar Association (NBA), Mr YC Maikyau, SAN, an exemplary jurist, who deftly combines knowledge and integrity with the right demeanour and discipline. My Lord might, one day, not be here with us physically, but he would always be with us and keep guiding/ruling us with his words because it is true that judges never die! Long life and more health to my Noble Lord!

Gama is a student from the Faculty of Law, Bayero University, Kano. He can be reached on: 09061912994, rabiumuhammadgama0@gmail.com