Another First for Justice Kudirat Kekere-Ekun Guest Columnist: By Professor Taiwo Osipitan, SAN The elevation of Honourable Justice Kudirat Olatokunbo Kekere-Ekun (Nee Fasinro) to our apex Court is evidently a heartwarming development in the Judiciary and the administration of the Justice sector in Nigeria. Hon. Justice Kekere-Ekun, who is a Member of Class 77-80 of the Faculty of Law University of Lagos, has achieved another first. My Lady was the first to be appointed a Judge of the High Court among her Classmates. She is the First Female Graduate of the University of Lagos to be elevated to the Court of Appeal. With her recent elevation to the Supreme Court, Hon. Justice Kekere-Ekun becomes the first Female Law Graduate of the University of Lagos to be elevated to the Supreme Court. Justice Kekere-Ekun’s Journey to the Supreme Court began in October 1977 when Young Toks (as fondly called by her friends and admirers) matriculated as a Student in the Faculty of Law University of Lagos. She and other classmates were privileged to have been lectured and tutored by seasoned and dedicated Lecturers. They include Prof. A.B Kasunmu SAN, Prof. M.I Jegede, SAN, Prof. SA Adesanya SAN, Emeritus Prof. Adedokun Adeyemi, Prof. Akin Oyebode, Prof. (Mrs) Eunice Uzodike. Others are Prof. Abiola Ojo, Prof. Anthony Adeogun, Associate Professor Olayide Adigun and Mr. Dotun Akinkugbe of blessed memories. These Lecturers laid a solid legal Foundation to Members of Class 77-80. Ignitius Chibututu, Alade Agbabiaka SAN, Titi Akinlawon, SAN, Funke Agbor and Prof. Taiwo Osipitan, SAN were some of her Class Mates. Justice Kekere-Ekun was called to the Nigerian Bar in July 1981. Exactly 33 years after graduating from University of Lagos, my Lady has been elevated to the Supreme Court. To her UNILAG Classmates, Justice Kekere-Ekun is an amiable, gentle, quiet, focused, intelligent, resourceful, trustworthy, fair minded and above all, a religious person. Her friendship with her classmates has not blurred and is unlikely to blur her sense of fairness and Justice. Some of her Classmates have won and lost cases decided by her when they deserve to win or lose cases respectively. Hon. Justice Kekere-Ekun was and still feels very comfortable in the company of her classmates, especially the “Queens” from Queens College, Lagos where she had her Secondary School Education. She made it a point of duty to attend UNILAG Class Re-unions. On some occasions, she attended in company of her very supportive husband, Mr. Akin Kekere-Ekun, the immediate past Pro-Chancellor and Chairman, Governing Council of the Lagos State University. Justice Kekere-Ekun is full of surprises. Let me recall a conspiracy hatched by some of her UNILAG Classmates during the 30th Anniversary of the Class. The setting was La Scala Restaurant, MUSON Centre Onikan, Lagos. Many of her classmates and Lecturers turned up for the event. It was a very free night when our lecturers realised how their former students who are now their professional colleagues and judges who now preside over their cases felt about them as students. It was time to dance. An agreement was reached that one of the gentlemen who was reputed for being a good dancer in school should invite Justice Kekere-Ekun to the floor. The choice was obvious. The conspiracy was designed to test the dancing skills of the quiet and unassuming Justice Kekere-Ekun. They voted in favour of Alade Agbabiaka, SAN. The conspirators got more than they expected. The dance steps of Justice Kekere-Ekun were entertaining and flawless such that were it to be a dancing competition, the umpires would have voted in favour of Justice Kekere-Ekun as the best dancer. Justice Kekere-Ekun has a very balanced background and pedigree. Her father is the highly respected Alhaji H.A.Fasinro, a senior member of the Bar, who retired as the Town Clerk of the then Lagos City Council. Hon. Justice Kekere-Ekun is happily married to her friend and soul mate Mr. Akin Kekere-Ekun. On one of the trips back to her station, she sent a text to her husband in order to announce her safe arrival in the following words: “The Eagle has safely landed”. Justice Kekere-Ekun also stays very understanding and supportive to her children and their interests. One of her Boys was recently called to the Bar. She was at the call to Bar to welcome him. The new wig loved and still loves soccer. Arrangements were made to ensure that he works in a law office that is reputed for excellence in legal practice and with a strong soccer team. I attest that Justice Kekere-Ekun is bold, fearless, fair, firm and incorruptible, a God-fearing dispenser of Justice. Some of the decisions of Justice Kekere-Ekun as a Justice of the Court of Appeal corroborate these qualities. These decisions show that Justice Kekere-Ekun and technical justice are Parallel Lines! They cannot meet. These decisions confirm that my lady is a social engineer who utilises Law as an instrument of social engineering and attainment of justice. In OMIDIRAN v ETTEH (2011) 2 NWLR (Pt.1232) P. 471 at Pg 501-502 para E-B, the issue was whether the Election Petition Tribunal was right or wrong to have excluded the evidence of a witness whose testimony was not frontloaded within the time specified for frontloading of evidence of witnesses. The witness was not a voluntary witness. He was compelled to appear in Court as a result of Subpoena duces tecum and testificandum served on him by the Tribunal. There was also the issue of whether the Tribunal was right or wrong to have refused to grant leave to a party to file additional Witness Statement on Oath in order to reflect the result of inspection of Electoral materials. This was despite the fact that it was the Tribunal that ordered the inspection of election materials. On appeal to the Court of Appeal against the Tribunal’s decision Hon. Justice Kekere-Ekun reversed the decision of the Tribunal. My Lady refused to allow technical Justice to prevail over substantial Justice by holding that: “In the instant case, as observed by learned counsel for the appellant, the subpoenas, which clearly state that the witness would be required to produce documents and testify were issued and signed by the Chairman of the Tribunal long after the time for presenting the petition, had lapsed. In my view, it amounts to blowing hot and cold for the Tribunal to have issued a subpoena commanding a witness to appear in court to testify and then to turn around and refused to allow him testify on the ground that his witness statement was not frontloaded. In signing the subpoena the Tribunal must have been satisfied that it was not frivolous and that it was necessary for the just determination of the petitioner’s case. There was no application before the Tribunal to set it aside. The witness having been subpoenaed ought to have been sworn in to testify. Alternatively, in compliance with paragraph 50 of the First Schedule to the Electoral Act, the procedure for the issuance of subpoena under the Federal High Court Rules could have been modified to render it applicable in election petition proceedings by directing the applicant to depose the witness after he had appeared in court pursuant to the summons: See paragraph 4(5) & (6)(a) of the Practice Directions. In my view, that would have met the justice of the case. It was held in the case of Obi-Odu V. Duke (2006) 1 NWLR (Pt.961) 375 at 419 D, that having regard to the sensitive nature of election petition proceedings and from the point of view of public policy, it was better for the court to allow a party subpoenaed to obey the subpoena. The tribunal would have been in a position at the conclusion of the trial to determine the probative value of the evidence elicited thereby. See also Buhari V. Obasanjo (2005) 13 NWLR (Pt.941)1”. Justice Kekere-Ekun is endowed with extraordinary intelligence and ability to distinguish a decision of a higher court in order to achieve justice without running foul of the rule on stare decisis. The case of OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) stands tall, as a case which has generated and will continue to generate discomfort in the legal profession. In that case, the Supreme Court held that a court process signed in the name of a law firm without the name of a registered Legal Practitioner on such process is void. The result is that such process will be regarded as incompetent. The Plaintiff would, subject to limitation period, have to institute a fresh action to right the wrong committed against him or her. If we may ask, from the view point of justice, why punish a litigant for the decision of his counsel to sign court process in the name of his law firm? Wherein lies the fault of a litigant whose counsel decided to sign court processes in his Firm’s name? Has such a litigant any remedy against the defaulting Counsel? In FATOKI v BARUWA (2012) 14 NWLR (Pt. 1319) P.3 at 16-17 a writ of summons was filed on behalf of the Respondent. The name of the counsel to the Respondent was endorsed on the writ of summons. The writ of summons was however signed in the name of the counsel’s Firm. The case proceeded to trial. Judgment was delivered in favour of the Respondent. Before the Court of Appeal, the issue of the incompetence of the writ of summons signed in the name of counsel’s Firm arose. It was however not an issue in the trial court. The trial court consequently did not have the opportunity to pronounce on the issue. The appeal was allowed on merit. The court avoided technical justice by declining to decide the case on the technical issue of invalidity of writ signed in the name of counsel’s Firm on the ground that it was a non-issue in the trial Court. Hon. Justice Kekere-Ekun resolved the issue in the following words which some Litigants who are caught in the web of the decision in OKAFOR v NWEKE (supra) will definitely find useful: “There are two parts to the writ of summons. The portion to be signed by the plaintiff or his legal practitioner and the portion for endorsement of the plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction. In the instant case, the respondent’s solicitor complied with the applicable rules at the time of filing the writ of summons with respect to the endorsement of the name of his firm and a business address within the jurisdiction. However, the aspect of the writ to be signed by the plaintiff or his legal practitioner was signed by Yemi Ajibola & Co. I agree with His Lordship that the decision in Okafor V.Nweke (Supra) is sound and binding on this Court under the doctrine of stare decisis. It is also correct as observed by my learned brother in David V. Jolayemi (supra) that provisions similar to the Oyo State High Court (Civil Procedure) Rule 1988 under reference here were not considered in Okafor V. Nweke. It is however not in doubt that Yemi Ajibola & Co. is not the name of a legal practitioner within the meaning of Sections 2 (1) and 24 of the Legal Practitioners Act. The writ of summons ought therefore to be held to be incompetent. It must however be noted that the competence of the writ of summons and further amended statement of claim was an issue raised suo motu by this court. It did not arise before the lower court nor did it form the basis of its judgment. It is not a live issue before this court nor is it an issue that would enable the court to do substantial justice between the parties. The attitude of the courts has shifted towards doing substantial and not technical justice in matters brought before them and to endeavour as much as possible to hear and determine cases on their merits. As the notice of appeal is competent, I am of the view that it is in the interest of the parties to determine the appeal on the merits”. I entertain no doubt that the Bar, the Bench, lovers of justice, fair play and transparency will benefit from the elevation of Hon. Justice Kekere-Ekun to the Apex Court. Kudos to the National Judicial Council under the able and progressive leadership of the first Nigerian Female Chief Justice of Nigeria, Hon. Justice Aloma Mariam Mukthar, for taking a right step in the right direction. To Justice
Posted on: Fri, 05 Jul 2013 21:20:03 +0000
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