Select Page
A special session
of the Supreme Court was held today in honour of Late Honourable Justice Paul
Nwokedi who died on the 3rd of September 2017.
Paul Usoro SAN who
was officially requested by the President of the NBA, Abubakar B Mahmoud SAN to
represent him  and the entire bar delivered  a heartwarming tribute
that demonstrated leadership,experience,intelligence and excellence.

The tribute read
thus:
TRIBUTE DELIVERED
BY THE PRESIDENT OF THE NIGERIAN BARASSOCIATION ABUBAKAR BALARABE MAHMOUD, OON,
SAN, FCIArb (UK) AT THE SPECIAL COURT SESSION IN HONOUR OF THE LATE
HONOURABLE JUSTICE PAUL KEMDILIM NWOKEDI, CON, HELD AT THE SUPREME COURT
ON WEDNESDAY, 25 OCTOBER 2017

My Lords
The Nigerian Bar
Association today mourns with the Nigerian Nation, the passage of one of our
icons and beacon of hope, the late Honorable Justice Paul Kemdilim Nwokedi,
CON.  In mourning His Lordship, we also celebrate his life and give thanks
to God for a number of reasons.  For one, we thank God that His Lordship
lived a full life and passed on at 90 years having seen his succeeding 3
generations – his 5 children, grandchildren and a great grandchild.  That
is not given to all.  His Lordship evidently passed on, on 03 September
2017, a contented man, having raised successful succeeding generations, amongst
them, our colleague and member of the Inner Bar, Uche Gringory Nwokedi,
SAN.  Even though His Lordship passed on 2 months shy of his 91st birthday
which would have been marked on 03 November 2017, His Lordship lived well
beyond the three score and 10 years that is given to man and this, by itself is
cause for celebration and thanksgiving.

For us as lawyers
and members of the Nigerian Bar Association, His Lordship’s life remains a
mirror and an exemplar.  In x-raying His Lordship’s life, we perhaps
should start from the middle and recall that His Lordship had a very successful
stint as a private legal practitioner in a partnership that was then known as
P. K. Nwokedi, Ibianwu, Okolie & Co before joining the Bench in 1974 in the
then East Central State of Nigeria.  The Bench is traditionally enriched
by the diversity of its members’ backgrounds and experiences, constituted as it
most often is by legal practitioners coming inter aliafrom the
private and official bars, the lower bench and the academia.  Sometimes,
making the leap from the private bar to the bench warrants real sacrifice and
deprivation particularly where the practitioner was adjudged by his peers to be
running a successful legal practice. Honourable Justice Nwokedi made that
sacrifice and was a stellar example of the service calling that compels or
propels the successful private legal practitioner to abandon his lucrative
private practice for service on the Bench.

It is a tribute to
His Lordship’s hard-work, intellect and competence that in 1985, about 11 years
after his appointment as a Judge, he was found worthy of further elevation to
the position of Chief Judge of the old Anambra State which then comprised the
current Anambra, Ebonyi and Enugu States. We however celebrate His Lordship
today as one of the extremely few jurists who successfully made the transition
from the High Court Bench to the apex Court Bench as a Justice of the Supreme
Court without intervening service years as a Justice of the Court of
Appeal.  The ranks of those Justices who made that leap included Oputa
JSC, Kawu JSC and Usman JSC and of course Honorable Justice Paul Kemdilim
Nwokedi.  His Lordship was elevated to the Supreme Court in 1990 at the
time that the mandatory retirement age for Supreme Court Justices remained
fixed at 65 years.  Thus, did it happen that His Lordship spent a rather
brief period at the Supreme Court, retiring therefrom in 1991.  But then,
those few years were memorable, with His Lordship leaving his mark and
pronouncements in the annals and sands of the Supreme Court and indeed our
jurisprudence.

As an Association
with the primary goal of protecting, promoting, advancing and fortifying the
rule of law, we cannot but highlight, in this occasion, His Lordship’s
prescient pronouncement in Agbai & Others v Okogbue (1991)
LPELR-225(SC)
 where the Supreme Court, in His Lordship’s lead
judgment pronounced thus:

“Much as one would
welcome development projects in the community, there must be caution to ensure
that the fundamental rights of a citizen are not trampled upon by popular
enthusiasm”.

These immortal
words are as relevant, applicable and germane today as they were in 1991 when
His Lordship pronounced them. Those words speak to all circumstances and
incidents when and where fundamental rights of a citizen may be threatened “by
popular enthusiasm”.  As His Lordship reminded all of us, in Agbai
v Okogbue (supra)
 “these rights have been enshrined in
legislation, that is, the Constitution”.  These rights are protected even
in circumstances where public sentiments, described by His Lordship as “popular
enthusiasm” presses for their abridgement. The “popular enthusiasm” that
provided the excuse for the abridgement of the appellant’s fundamental rights
by the respondents in that appeal was a “community development” project
promoted by an age-group in the appellant’s village.  Laudable as the
scheme was, His Lordship had no hesitation in striking down the aspect of the
community’s custom that constituted an infringement on the fundamental rights
of the appellant. This indeed is an object lesson for all of us vis-à-vis“popular
enthusiasm” that sometimes threatens the rule of law and the fundamental rights
of citizens.

We also fondly
remember His Lordship in relation to the principles that guide and gird the
interpretation of statutes.  Your Lordships are called upon, on a daily
basis, to interpret provisions of legislation, sometimes in circumstances where
the draftsman’s words lend themselves to more than one interpretation or are
ambiguous.  What should be Your Lordship’s guiding principles in those
circumstances?  That was the situation faced by Your Lordships in Idehen
& Others v Idehen & Others (1991) LPELR-1416(SC)
 where His
Lordship, Nwokedi JSC made the following immortal contributions in his
concurring judgment:

“Where there is an
expression used in an enactment which may be susceptible to two
interpretations, the Court may consider the consequences of either
interpretation in arriving at the intention of the legislature.  That
interpretation which appears to defeat the intention of the Act should be
bye-passed in favor of that which would further the object of the Act – Hill
v East & West Dock Co. (1884) 9AC 488 at 456
.  See also Lord
Green MR in Hankey v Clevering (1942) 2 KB 326 at 330
In Rein v Lane (1867) 2 LR QB 144 at 15 Lord Bowen LJ
stated the position as follows:

‘It is, I
apprehend, in accordance with the general rule of construction that you are not
only to look at the words, but you are to look at the context, the collocation
and the object of such words relating to such matter and interpret the meaning
according to what would appear to be the meaning intended to be conveyed by the
case of the words under the circumstances.’

“Our Courts have
often adopted the same line of construction of Statutes.  In Savannah
Bank (Nig) Ltd v Ajilo (1989) 1 NWLR (pt.97) 305 at 326
, Obaseki JSC
held that a statute should not be given a construction that will defeat its
purpose.  He further held as follows:

“Where alternate
constructions are equally open, that alternative is to be chosen which would be
consistent with the smooth working of the system which the Statute purports to
be regulating and that alternative is to be rejected which will introduce
uncertainty, friction or confusion into the working of the system – Shannon
Realities Ltd. v Ville de St. Michel (1924) AC 185
.’”

Earlier in his
Judgment in that Appeal, His Lordship had pronounced on the general and abiding
principles of statutory interpretation thus:

“It is a canon of
construction, that a statute may be construed ‘ut res magis valeat quam
pereat
’, that is to say, that the construction should ensure that the
intention of the legislature is not frustrated or defeated.  It is the
duty of the Court to give meaning to an ambiguous expression.  Bowen LJ in Curtis
v Stovin (1889) 22 QED 513
 put the position as follows:

‘The rules for the
construction of statutes are very much like those which apply to the
construction of other documents, especially as regards one crucial rule – viz,
that if possible, the words of the Act of Parliament must be construed so as to
give a sensible meaning to them.  The words ought to be construed ut
res magis valeat quam pereat
.’

“Fry LJ in the same
case at page 519 held as follows:
“The only
alternative construction offered to us would lead to this result – that the
plain intention of the legislature has entirely failed by reason of slight
inexactitude in the language of the section.  If we were to adopt this
construction, we should be constructing the Act in order to defeat its object
rather with a view to carry its object into effect.’”

The legislation
that fell for interpretation in Idehen v Idehen (supra)was
Section 3(1) of the Wills Law, Cap 172, Laws of Bendel State which provided as
follows:

–(1) “Subject to
any customary law relating thereto it shall be lawful for every person to
devise, bequeath or dispose of, by his will in manner hereinafter required, all
real estate and all personal estate which he shall be entitled to, either in
law, or in equity at the time of his death and which if not so devised,
bequeathed and disposed of would devolve upon the heir at law of him or if he
became entitled by descent, of his ancestor or upon his executor or
administrator.”

The contest in that
appeal was whether the proviso that prefaced the provision, to
wit
, “subject to any customary law relating thereto”, applied to the
testamentary capacity of the person making the Will or to the “customary law
relating” to the real estate or personal estate that was being disposed of or
bequeathed.  In applying the afore-quoted principles, His Lordship, in his
Judgment concluded thus:

“One then asks what
is the manifest intention of the Wills Law of Bendel State.  The obvious
answer is, to give generally testamentary capacity to “every person” of that
State.  If Dr. Odje’s construction is applied, every Bini citizen is
deprived of this testamentary capacity thereby frustrating the object of the
Law.  From the evidence adduced and on the authority of Olowu v
Olowu
 above, on the death of a Bini, all his estate is vested in
his eldest surviving male child.  Acceptance of the construction advanced
by Chief Williams would help to further the objective of the Law.

“It seems to me
therefore that the phrase ‘subject to the customary law relating thereto’ would
be referable to the customary law regarding the particular devise or property
sought to be devised.  It is my view that Section 3(1) of the Wills Law,
Cap 172 Bendel State, did not compel a Bini man to make his Will in accordance
with his customary law except where, from the nature of the property devised,
Bini customary law deprives him of the capacity to dispose of that particular
property.”

Indeed, the facts
of that Appeal related to Bini customary law vis-à-visthe
provisions of the Wills Law, Cap 172 of Bendel State, but the principles that
were pronounced upon by His Lordship and which were applied for the
determination of that appeal, were and are of universal application and apply
equally to interpretation of statutes generally.  These principles are
particularly relevant and applicable in circumstances that Your Lordships are
called upon, on a daily basis, to interpret and apply legislation, sometimes in
manners and in matters that could impact upon the fundamental rights of the
Nigerian citizens and/or the promotion and preservation of the rule of law.

Time and space
would not permit me, My Lords, to proceed with any further review of His
Lordship’s outstanding expositions in the Supreme Court Bench – and there are
several more in our Law Reports.  Permit me, My Lords, however, to point
out that the common threads which I find run through the judgments of His
Lordship, Honourable Justice Nwokedi are his scholarship, his lucidity, the
logic in his espousals, his feel for humanity, his sense of history, and, not
least, His Lordship’s abiding interest in the use of law for the advancement of
the rule of law and the protection of the fundamental rights of citizens. 
Possibly, if His Lordship was asked the underlying philosophy for his
judgments, he would have pointed to his Catholic upbringing and his socialist
bent – a rather ironic twist, i.e. His Lordship’s socialist streak, considering
that not only was His Lordship born into royalty, but the practice of His
Lordship’s chosen law profession, arguably, has aristocratic history and
bearings.

It would actually
appear that law practice, in some form, is and was embedded in the Nwokedi
family DNA.  His Lordship’s father, Chief Joseph Ndubisi Nwokedi, was a
colonial court interpreter who rose through the colonial judicial system to become
a customary court judge, working in the different districts of colonial
administration in Eastern Nigeria.  As an aside, it would have been
interesting to know what the older Nwokedi would have thought of his brilliant
son’s expositions on customary laws in the two authorities that we have
reviewed in this Tribute! The older Nwokedi went on to become the 3rd Uthoko
of Achalla and was married to Mercy Nwaugoye, the mother of Honourable Justice
Nwokedi, herself, from the royal Amobi family of Ogidi.  Thus, when we say
that His Lordship was born into royalty, we speak, not only of the older
Nwokedi but also of his wife, the mother of His Lordship.

Honourable Justice
Nwokedi’s brilliance shone through quite early in his life.  His Lordship
had his primary education at St. Joseph Catholic School, Onitsha and Holy
Trinity Primary School Onitsha.  From there, he gained admission to the
prestigious St. Gregory’s College, Lagos where he excelled in academics and
passed the Cambridge Senior School Certificate in 1945 in Division 1 with
exemption from London Matriculation.  His Lordship studied on his own to
earn a University of London BA degree in History in 1951 – a rare feat then and
even now.  He subsequently proceeded to the London School of Economics to
study Law and graduated in 1959 with an LL.B degree.  He passed his Bar
Finals (Part II) and was published as a member of the Honorable Society of
Lincoln’s Inn in 1959 and thereafter returned to Nigeria where he went into
private legal practice in Aba.  Not to be forgotten is the fact that His
Lordship was a devout and practicing Catholic – we have already mentioned this
as His Lordship’s possible abiding philosophy in his Judgements.  In his
post-retirement years, His Lordship devoted his life particularly to
seminarians and charity works.

As we mourn the
physical passage of Honorable Justice Nwokedi, we are comforted that he remains
alive in his succeeding generations but more importantly, in our hearts and in
our Law Reports.  His Lordship indeed comes alive daily each time his
pronouncements are read by and/or inculcated in our law students in the various
Law Faculties of our Universities and the Nigerian Law School or cited by Your
Lordships and lawyers in the various court hierarchies of our land, starting
from the magistracy right up to the Supreme Court.  That indeed is what it
literally means to live in the hearts and minds of succeeding generations and
that is a most befitting memorial to His Lordship.  He cannot and will
never be forgotten; he lives on, with us.  That is and should be a
consolation to his immediate family and indeed to all of us even as we pray for
the forgiveness of his sins and his gentle repose.

Abubakar Balarabe
Mahmoud, OON, SAN, FCIArb (UK)
President, Nigerian
Bar Association

Source: Courtroommail