A TRIBUTE TO THE EMINENT SUPREME COURT JUSTICE ON HIS 80TH BIRTHDAY, SEPTEMBER 18, 2005

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When you hear of an institution, it is not the structure that makes the institution. An institution may last for so long and be useless to the human beings who negotiate with it. Today, people all over the world praise the American Supreme Court; the only criticize it interstitially.
What about the Nigerian Supreme Court? This is where Justice Kayode Eso left an impenetrable record and therefore helped to build an institution of which Nigerians can be proud. So when you speak about the Nigerian Supreme Court, you want to listen to what Justice Eso, Oputa, Nnaemeka – Agu, Karibi – Whyte, Nnamani, Alexander and T.O Elias, etc. have said about the law.

At the Supreme Court, Justices Eso always meandered his way to look for justice rather than technicalities. In the State v. Gwonto case, he declared that:

“The court for some time now, laid down as guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”

The goal of the Supreme court is Justice not technicalities.

“To attain this, the grains of Justice have to be separated from the chaff of technicalities and any other thing that may hinder the course of justice.”

In the case of Gani Fawehinmi v. Halilu Akilu where he was emphasising the importance and functions of the Constitution, he emphasised that:

“Law does not exist in a vacuum. The Constitution exists for Nigerians who are just having an experiment in democracy. A Constitution is not an academic documents meant for abstract consideration.”

Justice Eso, in his anxiety for Justice, also, glanced at the lower Court as they administer justice. He believed that they have a duty to administer justice by ensuring that Justice is done in their courts. He declared that:

“It is a primary axiom of our law that justice should not only be done but be glaringly seen to be done. Anything less than this will not serve the course of justice, which this court has full responsibility to guard most jealously” Kadiya v. Lar be(1983) 2 SCLNR 368.”

As he ever emphasised in the case of Green v. Green (1987) 3 NWLR (part 61), in a rather prosaic language, he asserted that:

“The sole aim of the court is to seek justice. True, it must be justice according to law, but when parties are available who are so affected by a claim, pleadings, evidence and subsequent orders would spell detriment or indeed incalculable wrong to what they considered their right, and they have either technically or inadvertently excluded their own side to the story, it is with respect waving goodbye to Justice.”
In the case of Ahute v. The State (1988), Justice Eso declared: 

“What is wrong and what is an unacceptable in an adversary contest is for the Judge (who shall remain an impartial referee throughout, an umpire not only to be respected but will a trusted in arriving at a decision which necessarily must hurt one party to jump into the arena and take sides with one of the contestants….. to onlookers, it is a drama that drowns Justice and its administration.”

But the case which made Justice Eso so popular in the Supreme court and in Nigeria and the world was that between chief Obafemi Awolowo and Alhaji Shehu Shagari. It was known as the Twelve Two-Thirds Case. It was on an election in which the government was also involved. Before the election in which the government was who was the Chairman of the electoral commission declared publicly that 12 2/3 of the number of States was 13 States and everybody went into the election without clamour.

When the result came out and Alhaji Shagari did not win as contemplated by government, that 2/3 was converted into 12 2/3 instead of 13 states which was what the government had expected. A great “mathematician” called Richard Akinjide ( he was to do be the Attorney – General for Shagari) announced that the figure was 12 2/3. Everybody connected with the group now regarded 12 2/3 as the goal. Shagari was declared the winner and the case went to the Supreme Court ultimately. The judgement of Justice Kayode Eso was brilliant and straight-forward. He declared:

“The obvious thing the FEDECO and the Returning Officer should do (and my unhesitating answer to the question: What should they do?) is to interprete the words ‘in each of at least two-thirds of nineteen states’ to mean in each of at least 13 states. This, with the greatest respect, can be the only interpretation of the legislation. And so the words in the subsection ‘no less than one-quarter of the votes at the election in each of at least two-thirds of all the states in the Federation’ mean not less than one-quarter of the votes cast at the election in each of at least thirteen states in the Federation.”

After this, all types of interpretations were placed on Section 34A (1) (c) (III) of the Electoral Act. If people do learn in this country, the Awolowo V. Shagari case is enough to teach us not to rig an election. All the rigging efforts by both individuals and government ended in a great fuss. The great man who should have governed this country well was prevented. They denied him victory. They all voted against him and against the future of the country.

On executive lawlessness, Justice Eso was uncompromising. He believe that every human being is subject to the Constitution and he believed that the Judiciary should be acknowledged as a powerful instrument for the empowerment of the Constitution. In the case of Garba v. F.L.S.C (1988) Eso said,

“For the Judiciary, a powerful arm of government, to operate under the rule of Law, full confidence (and this must be unadulterated) must exist in that institution. It must indeed be demonstrably shown, especially if it is the other arms of government that are involved. In civil days, both the Executive and Legislature must show to the entire nation their demonstrable confidence in the Judiciary”

What type of background has Kayode Eso, and which has made him to grow so robustly, valiantly and philosophically? He was born into a Christian family. Astrologically, he belonged to the Zodiac sign of Virgo; consequently, his characteristics are honesty, reliability, uprightness, modesty and practical ability.

He is Ilesha son and went from there to Dublin University where he obtained his Michaemas Prizen in Constitutional Law. he was called to the bar in 1954. After a brief interaction in private legal practice, he ended up in the Ministry of Justice.

He claimed the judicial ladder up to the Supreme Court, which year he adorned gracefully.


EXTRACTS FROM LAW AND CONTEMPORARY NIGERIA: REFLECTION 2 BY DR OLU ONAGORUWA.(SAN. OFR, LL.M,, PHD)
JUSTICE KAYODE ESO, AN EPITOME OF EXCELLENCE AT 80. PAGE 223

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