Femi Falana:
“Without engaging in unnecessary debates over the issue of stay of proceedings it is pertinent to point out that the right to criticize the judgments of courts is part of the fundamental right of every citizen to freedom of expression guaranteed by section 39 of the Constitution. What is not permitted is to scandalise a court or accuse judges of impropriety or misconduct without any proof.”

Following the granting of stay of proceedings by the Supreme Court in the cases of FRN v Dr, Bukola Saraki, a number of Senior Advocates of Nigerian lavishly commended the wisdom which informed the decision. A few days later, I had cause to x-ray and criticise the ruling in view of the abolition of stay and interlocutory appeals in all criminal trials in the federal courts by the combined effect of sections 306 and 396 of the Administration of Criminal Justice Act, 2015 (ACJA). Not a few other lawyers have risen to the defence of the apex court.

In contributing to the debate, Mr. J. B. Daudu SAN, the lead Counsel to Dr. Saraki, was reported to have threatened to initiate contempt proceedings against some “disgruntled persons” in a bid to protect the image of the judiciary. As far as the learned senior advocate is concerned, it is illegal to criticise any decision of the Supreme Court. This is interesting in view of the fact that it was Mr. Daudu who started the debate on the ruling. It is on record that as soon as he came out of the court after the delivery of the ruling in the case, Mr. Daudu addressed the press and stated that the defence had been vindicated by the pronouncement of the apex court on the issue of stay of proceedings. Certainly, the commendation of Supreme Court by the senior counsel for ruling in favour of his client is not contemptuous!

Without engaging in unnecessary debates over the issue of stay of proceedings it is pertinent to point out that the right to criticize the judgments of courts is part of the fundamental right of every citizen to freedom of expression guaranteed by section 39 of the Constitution. What is not permitted is to scandalise a court or accuse judges of impropriety or misconduct without any proof. In this regard, I can say, without any fear of contradiction, that Mr. Daudu has, more than any other lawyer in Nigeria, consistently lampooned sitting and retired judges for engaging in massive judicial corruption without supplying any scintilla of evidence to substantiate his claim.

However, the Supreme Court has always appreciated constructive criticism of its decisions having regards to their finality and overall impact on the nation’s legal system. In Adegoke Motors v Adesanya (1989) 3 N.W.L.R. (Pt 109) 250 at 274-275, the revered Chukwudifu Oputa J.S.C alluded to the finality of the decisions of the Supreme Court when he said that “we are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings capable of erring. It will be short sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes.”

In the same vein, the late Justice Kayode Eso said in the case of Adigun v Governor of Oyo State (No 2) 2 N.W.R (Pt 56) 197 at 214-215 that “the decision of the Supreme Court is final. Final in the sense of real finality in so far as the particular case before it is concerned. It is final forever, except there is legislation to the contrary, and it has to be a legislation ad hominem”. In recognition of the enormous powers of the apex court Justice Eso was of the view that “It is such dread powers that must necessitate great care in the calibre of the Court and such dread that must necessitate pungent and constructive analytical criticism of every judgment of the Court in the law journals and similar fora”. In reaction to the view of some judges and lawyers that it is contemptuous to subject decisions of courts to criticism Justice Eso stated that “the judgment of a court should not be treated with sacred sanctity, once it gets to the right critical forum”.

Justice Chukwudifu Oputa:
“We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings capable of erring. It will be short sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes.”

While conceding that the ACJA has effectively abolished stay of proceedings in trial courts, Messrs Olisa Agbakoba SAN and Mike Ozekhome SAN have argued that the law is not applicable in the appellate courts! The argument of both learned senior counsel has failed to take cognisance of the trite law that appellate courts have no original jurisdiction in applications for stay of proceedings. Hence, litigants applying for stay of proceedings are mandatorily required by the appellate courts to attach the ruling of the lower court which dismissed or struck out a similar application. In any case, there shall be no interlocutory appeals which may warrant the filing of stay of proceedings since the ACJA has consolidated all preliminary objections with the substantive case.

With respect, the contributions of some senior counsel to the debate smack of hypocrisy. For instance, both Messrs Agbakoba and Ozekhome and I were members of the Committee on Law, Judiciary, Human Rights and Legal Reforms of the 2014 National Conference. The committee headed by the Honourable Justice George Oguntade (rtd) had recommended, inter alia, the establishment of a special anti-corruption court, devoid of niceties and technicalities of the conventional courts such as preliminary objections and interlocutors appeals. The recommendations and several others on judicial reforms were unanimously adopted by all conference delegates. Although, an anti-corruption court has not been created the recommendations of the National Conference on the abolition of stay of proceedings and interlocutory appeals in criminal proceedings have emerged as sections 306 and 396 of the ACJA. All the lawyers who had campaigned for the abolition of interlocutory appeals are morally estopped from questioning the legal validity of the relevant provisions of the ACJA.