Reminiscence on the Voyage and Chilling Embrace of a Worthy Jurist’s Redundancy

Onyechi Ikpeazu, SAN

Why does it have to be that, in life, when there appears to be nearness to perfection or at least as near to that illusive concept as a mortal may attain, comes a resolution, an end; bringing to a crushing waste all that life experience, wisdom and knowledge seemingly acquired, simply to ascend with fury to the peak and then a creeping burst? Retirement, perhaps a fancy word to shroud the fact that owing to a mere effluxion of time, which is not justified by diminished capacity or responsibility, there must be a crushing halt to what would have been a glorious attainment at a time when the attained wisdom might be of considerable and immense benefit to the society.

Our Initial Encounter

I still remember it as if it were yesterday, the initial encounter I had with him. I met Hon. Justice Olabode Rhodes-Vivour in 1981 when I was part-coordinating a legal course on Legislative Drafting in the United States of America which was conducted by an organisation of Common Wealth and American distinguished legal draftsmen and women, then resident in the United States of America, known as Professional Consultants on Africa. The programme was both theoretical and practical. Our journey, which started in Chicago Illinois, took us to Washington DC, and eventually to Springfield Illinois. The course was largely attended by senior Lawyers in the Drafting Department of the National Assembly, as well as their counterparts from the Federal and State Ministries of Justice in Nigeria. As expected, there ought to be nothing elegant in a course in legal/legislative drafting and consequently, the class was constantly embroiled in monochromatic episodes of relevance of terms like “null and void and of no effect whatsoever” and Latin expressions in legal documents. One bloc which was dominated by Lawyers called to the Bar in the 1960s were of the constant view that law is a specialised discipline, and thus, eliminating such “words of art” from law and legal documents will amount to denuding the great profession of its elegance and the hallowed presence which set it apart from the reach and realm of the uninitiated. This bloc of whom I term traditionalists were even more alarmed when informed that some States in the United States of America had proscribed and imposed fines for the adoption of Latin terminologies in legal documents, with the determined objective of simplifying and encouraging the appreciation of legal documents. These innovations were largely considered heretical by these traditionalists and self-acclaimed guards of mystic tools, who tediously contended that it should not be transmitted to Nigeria, as eradication of such expressions would demystify the noble profession and ultimately pink-slip them from their precious and well-fortified ornamental castles.

In all this, His Lordship, Hon. Justice Rhodes-Vivour found the most appropriate moments of the argy-bargy to make the entire exercise the target of lampoons which brought about the often needed comic reliefs, though temporary panacea to what might have been mere dispensable anxieties when faced with what law in a society really ought to attain. Beyond that pixies façade, however, lay a resolute and practical personage whose sterling character manifested in some of the climacteric decisions which have furthered the requisite social justice in the sometimes hard to define society called Nigeria.

His Elevations

Elevated to the exalted office of a Judge of a High Court in the Lagos State Judiciary in 1994 where he served creditably, he was also periodically engaged in National assignments one of which brought him to the often Cimmerian desert, also known as election dispute resolution in Anambra State.

In that era, while many jurists at the conclusions were impaired in one way or another, his Lordship emerged unscathed, just like I had prayed, expected and advertised when I knew of his advent. It was, therefore, not surprising that so soon thereafter, his Lordship was elevated to the Court of Appeal in 2005, and thereafter, to the Apex Court in 2010.

The purpose of law in a society might sometimes be indeterminate or incapable of homogeneous capture. A few objectives might aid in finding that unitary definition, if there must be one. Law in a society serves to keep peace in the society; to shape moral standard; promote social justice; facilitate orderly changes; provide basis for compromise; helps in facilitating a larger societal plan; resolving disputes and most of all protecting individual rights and liberties. It is perhaps, in this last purpose of law that the legacy of Hon. Justice Bode Rhodes-Vivour may reign supreme, although reference could be made to multiple decisions especially in election and pre-election matters, where the leading decisions of his Lordship define the legal path.

Mojekwu v Mojekwu

By a community reading of the entire Section 42 of the Constitution of the Federal Republic of Nigeria 1999, a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not by reason of that classification be subjected to disabilities, restrictions or advantages which other citizens are not made subject to, or enjoy. Further, no “…citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” By the provisions of the Interpretation Act, “his” as used equally applies to the feminine gender. On the firm strength that gender is a circumstance of birth, in the case of MOJEKWU v MOJEKWU 1997 7 N.W.L.R. Part 283 Page 1, upon an alleged failure of a male issue in his uncle’s home (he had females), the Appellant claimed that he had inherited his uncle’s landed property under the Igbo custom of “Oli Ekpe”. The Court of Appeal was urged by the Respondents in that case to uphold the inheritance right of a woman, based on Section 42 of the 1999 Constitution. In so doing, his Lordship, Hon. Justice Niki Tobi (JCA) (as he then was) after upholding the lex situs which was the Onitsha custom which entitled women to inherit their father’s property, in a most graphic manner held thus:

“We need not travel all the way to Beijing to know that some of our customs, including the Nnewi “Oli-ekpe” custom relied upon by the Appellant are not consistent with our civilised world in which we all live today, including the – Appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with this divine truth, I believe that God, the Creator of human being, is also the final authority of who should be male and female. Accordingly, for a custom or customary law to discriminate against a particular sex, is to say the least, an affront on the Almighty God Himself. Let nobody do such a thing. On my part, I have no difficulty in holding that the “Oli-ekpe’: custom of Nnewi, is repugnant to natural justice, equity and good conscience.”

Per TOBI, JCA (Pp. 28-35, paras. D-B)

The Respondent at the Supreme Court in MOJEKWU v IWUCHUKWU 2004 11 N.W.L.R. Part 831 Page 196 apprehensive of what a patently conservative and male dominated Supreme Court might hold, elected to play safe and urged primarily the peculiar Onitsha custom which favoured the inheritance right of a woman, with the hope of preservation of the far-reaching pronouncement of Niki Tobi J.S.C. As was anticipated, the Supreme Court parried the nullification of the Igbo custom which disfavoured a woman from inheriting landed property, and did not pronounce on same. The Court, however, sustained the inheritance right of a woman based on the lex situs, being the Onitsha custom. In an equally watershed decision, the matter was frontally confronted by the Supreme Court ten years later in UKEJE v UKEJE 2014 11 N.W.L.R. Part 1418 384 in which Justice Rhodes-Vivour delivered the lead Judgement. In placing the matter beyond peradventure, his Lordship struck down the patently repugnant Igbo custom of disinheriting a woman as unconstitutional, and held thus:

“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in the sharing of her deceased father’s estate is in breach of Section 42 (1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void, as it conflicts with Section 42(1) and (2) of the Constitution”.

There are no doubt numerous frontiers to conquer in this complex society, which oftentimes reminds the discerning mind of the apt statement of the great African patriot who had this to say:

Our world is not divided by race, colour, gender or religion.

Our world is divided into wise people and fools. And fools divide themselves by race, colour, gender or religion.

Adding the word “tribe” to that classification in our local parlance, certainly may not be out of place. Frontiers of segmentation based on tribe, race, gender or religion in democratic nations, were invariably conquered by the women and men who put pride and virtue over and above the external advantages of fame, rank and fortune. They are invariably aided and protected by the brave judex, especially those who conceive nothing to lose; who with their long and unblemished record can steer at the eye of the storm and refuse to blink.

Retirement Age

At this stage when the National Assembly is on the verge of taking a decision on whether to increase the retirement age of Judges and Justices by five years across the board, I reflect on the memoirs of a retired Supreme Court Justice.

In his book titled “Justice Under the Shadow of the Almighty: My Life Sojourn to the Nigerian Supreme Court”, Hon. Justice James Ogebe opined that the reason for increasing the retirement age of Supreme Court Justices during the General Sani Abacha regime, was more clandestine than one based on rationality.

According to him, Supreme Court Justices could not form a quorum to hear late Moshood Abiola’s bail case following his unilateral declaration of himself as the elected President of Nigeria, and rather than “…appoint new Justices who would then form a quorum to hear Abiola’s bail case, General Abacha decided to extend the retirement age of Justices from 65 years to 70 years, to continue to keep Abiola in legal limbo”. As frightening as this might be if it were true, perhaps, more petrifying is the retrospective thought of compelling retirement of Justices of the Supreme Court at 65 years when a Jurist at that stage and age, would have just settled down to the onerous demands of that revered and tectonic office. The Supreme Court is a policy Court, and one of the three arms of Government. Its role in establishing and sustaining consistent policies to guide the nation, is highly invaluable. Sustained policy demands consistency in the women and men charged with the responsibility of advancing the society through serene and relevant decisions that ought to steady the growth of a nation such as ours, which is inexplicably still trying to find its feet. The longer the jurist spends in such endeavour at the apex level, the more altruistic and consistent the decisions will emerge. This consistency in policy will invariably span numerous administrations, and thus, foster stability in the growth process.

Where there is a genuine ascertainment and declaration of age by a jurist, a greater benefit will rest, not in sending a competent, trusted and tested jurist like Hon. Justice Rhodes-Vivour to redundancy and a never-ending vacation, when Fridays rather than being the best day of the week, will compete with Mondays and the other days of the week. Greater benefit will emerge if Justices who are still fit, are allowed to operate in an environment where they have access to Supreme Court-employed competent research-oriented legal practitioners as both Clerks and Interns assigned to them, as is done in the United States and the United Kingdom. It will not amount to copying for the sake of it, but rather adopting that which has worked effectively for those countries.

To His Lordship , I say, “congratulations on being forced to extend your weekends with five days, also called workdays; unless the National Assembly feels otherwise”.

Dr Onyechi Ikpeazu OON, SAN, FCIArb