On 17th of July, 2019, Hon. Justice Ibrahim Tanko Muhammad was confirmed by the Senate as the Chief Justice of Nigeria (CJN). During the proceedings at the Senate, Justice Muhammad, CJN was confronted with a question by Senator Enyinnaya Abaribe [Senator representing Abia-South Senatorial District, Abia State under the platform of Peoples Democratic Party (PDP)]. The question borders on the Supreme Court’s policy (philosophy) on technicality and substantial justice in the determination of cases. The Senator cited one decision of the Supreme Court (Abraham v. Akeredolu)confirming the policy of the apex Court that the courts will not allow technicality to thrive. He also referred to the recent case of Osun State gubernatorial election involving Mr. Adegboyega Oyetola of All Progressives Congress (APC) and Mr. Ademola Adeleke of PDP. In that case, the Judgment of the Election Tribunal (nullifying the victory of Mr. Oyetola at the polls) was struck down by the Supreme Court, upholding the decision of the Court of Appeal. The apex Court faulted the Majority Judgment of the Tribunal delivered by Justice Peter Obiora principally because Justice Obiora was found to be absent during one of the trial proceedings which took place on 6th of February, 2019. The Supreme Court held that this was a fundamental flaw.
Thereafter, Senator Abaribe urged the CJN to confirm what Nigerians should expect under his Lordship’s leadership of the Judiciary and what precisely the policy of the Supreme Court would be as regards technicalities in justice delivery.
In a wise attempt to answer the all-important question, the CJN moved to explain the meaning of “technicality”. This explanation became necessary for the benefit of the wider audience and the entire country. However, with the greatest respect, the explanation supplied by the CJN as to the meaning of “technicality” was largely unhelpful and less than satisfactory. This piece aims only to attempt a clarification of the point and to address a few related issues.
CJN’s answer on Technicality
We shall attempt quoting in full the answer of the CJN.
“…The question by distinguished Senator Abaribe centres on technicalities and perhaps the difficulties we are facing on technicalities. Permit me, distinguished President and the Senators to say that, what is a technicality? Something which is technical, in my definition, it is something that is not usual. That may sometimes defy all the norms known to a normal thing. It may be technical. Now, we have technicalities in our laws. And this is because these laws that we have inherited, we inherited them from the British and the British people have for quite centuries ago, introduced what is known as technicalities in their laws. Now, if something is technical, it is in a way, giving a leeway for double interpretation. It may be interpreted this way by Mr. A, or it may be interpreted this way by Mr. B. Now, if something is technical comes before the law or before the courts, what we normally do at the trial courts is that we ask people who are experts in that field to come and testify. We rely on their testimony because they are experts in that field. Ask me anything on aeroplane. I don’t know. Ask me to drive an aeroplane, I am sure if you are a passenger and they told you that that flight is going to be driven by Hon. Justice Ibrahim Tanko, I am sure you will get out of the plane. Because, it is something that requires technicality and if I have any technicality, my technicality will only be limited to law. Therefore, it is something that has to do with the perception of the way you think you will be able to achieve the goals of what you want to achieve. Several of our laws are dependent on technicalities. But remember, when we come, we have what is known as rules of interpretation. We resort to rules of interpretation. There are several rules of interpretation. Those of us who are lawyers here know we have several rules of interpretation. So, we resort to that one. And it is through that we resolve the problem that is technically raised. So, that is the answer.”
Breaking down the CJN’s answer
From the above quoted statement, my Lord, the Honourable CJN, clearly gave us the meaning of “technicality” in a context or contexts totally different from the context of the question tabled by Senator Abaribe.
His Lordship explained “technicality” in the context of “something that is not usual. That may sometimes defy all the norms known to a normal thing.”
His Lordship thereafter gave a historic angle to the concept of technicality by alluding to the Britain as the originators of technicality and from which we inherited the technicalities in our laws. According to his Lordship, “Now, we have technicalities in our laws. And this is because these laws that we have inherited, we inherited them from the British and the British people have for quite centuries ago, introduced what is known as technicalities in their laws.”
In another perspective, the CJN saw technicality from the angle of ambiguity and/or difference in opinions. To his Lordship, “Now, if something is technical, it is in a way giving a leeway for double interpretation. It may be interpreted this way by Mr. A, or it may be interpreted this way by Mr. B.”
Going forward, his Lordship viewed technicality from the prism of expertise required in some specialised fields of endeavor. According to his Lordship, “Now, if something is technical comes before the law or before the courts, what we normally do at the trial courts is that we ask people who are experts in that field to come and testify.”
Subtly, Muhammad CJN appears to see technicality from the angle of one’s philosophy, perception or mode of operation. His Lordship stated that,“Therefore, it is something that has to do with the perception of the way you think you will be able to achieve the goals of what you want to achieve.”
Finally, His Lordship confirms that we have technicality in our laws and noted one of the solutions in dealing with it, which is by resorting to rules of interpretation. His Lordship stated:“Several of our laws are dependent on technicalities. But remember, when we come, we have what is known as rules of interpretation. We resort to rules of interpretation.”
While we appreciate his Lordship’s thoughts and further insights as to the meaning of technicality in his Lordship’s views, it is important to note that the meaning of technicality in the context of Senator Abaribe’s clear question is quite different.
Meaning of Technicality in the context
Although a perfect definition of technicality is largely unavailable, in the context of hearing and determination of cases by our courts, judgment based on technicality is often differentiated from judgment based on substance or merits of a case, otherwise known as substantial justice. It is in this context that we shall now proceed below.
Technicality refers to any point not precisely touching on the merits of a case. Sometimes, it may be considered as something trivial or inconsequential. By this, it is the sharp antonym of substance; i.e., something not so material. Technicality largely involves an attempt to take advantage of any loophole in the laws or any mistake by a party (or counsel) in the presentation of one’s case; or strict reliance on procedural Rules of Court to defeat the substance of a particular case and win on that ground. When this happens, it is commonly said that a case was won on mere technicalities. Technicality may also involve pinpointing a narrow (but important) issue of law (not necessarily trivial). Here, the brightest of lawyers show their talents by their critical appraisal of the issue(s). In fact, such exercise has aided the development of law by genuine expansion of the frontiers of our jurisprudence.
Judicial process is governed by laid down procedures that aid the business of the courts – Flowing from the procedure for filing court papers (court processes), presentation of cases, to composition of Judges, as well as other related matters. These processes themselves are purely different from the main case itself, being the real reason parties (litigants) are in court. So, if Mr. A sues Mr. B for breach of contract, the contract and the issue of breach is the main reason parties are in court for the Judge to determine whether or not there was a breach. Now, the lawyer who filed the contract case may inadvertently fail to pay the exact filing fees at the court registry. The opposing lawyer may rely on that in asking the court to strike out the case. This argument on filing fees has absolutely nothing to do with whether or not there was a breach of contract between the parties. The opposing lawyer can be said to be relying on technicality to defeat the case. In a criminal case, an accused person may be charged to court for rape but based on a wrong law. However, the main issue is whether the accused committed the offence. The accused person arguing the point that the charge was filed (preferred) based on a wrong law amounts to reliance on technicality. It has nothing to do with whether the accused person actually committed the offence.
The Supreme Court, per Niki Tobi, JSC (of blessed memory), in the case ofYusuf v. Adegoke (2007) 4 S.C. (Pt.1) 126 had this to say about “technicality”:
“What is technicality? In Adedeji v. The State (1992) 4 NWLR (Pt.234) 248, I said at page 265: “I realize that courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much that it has become not only a cliche but an enigma in our jurisprudence. In most cases when the courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drum drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process.A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter. As far as he is concerned the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or not regard to the injustice that will be caused the opponent.”
Supreme Court’s policy on Technicality
The Nigerian Supreme Court has unequivocally stated in myriads of cases that the days of justice based on technicality are over, and that we are in the era of substantial justice. In the case of Amaechi v. I.N.E.C. (No.3)  18 NWLR (Pt. 1065), the Supreme Court held that:
“The sum total of the recent decisions of this Court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities.”
In Joseph Afolabi & Ors v. John Adekunle & Anor  8 SC. 98 at 119 Aniagolu, JSC (as he then was) said:
“While recognising that the Rules of Court should be followed by parties to a suit, it is perhaps necessary to emphasise that justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities to the detriment of the determination of the substantive issues between them.”
Thus, there is no confusion as to the express position of the Supreme Court on technicality. The lower courts have followed suit. However, it must be noted that there are some positions based on technicality which the courts hold dear. For instance, the Supreme Court held in Okafor v. Nweke  10 NWLR (Pt. 1043) 521 (upheld in FBN v. Maiwada  5 NWLR (Pt. 1348) 444) that if a court process meant to be signed by a named legal practitioner (Christian Ahmed Esq.) is rather signed in the name of his law firm (e.g., Christian Ahmed and Co.), the case filed in that style would be struck out. This is one technicality the courts have vowed to uphold in spite of all its absurdities and in the face of possible remedial steps. There are other technical issues of law that the courts consider sacred. While there are many others the courts will not allow to see the light of day. In fact, upholding certain technical arguments does not always signify injustice. For instance, some technical issues based on jurisdiction of court are taken quite seriously by the courts. Beyond the need to do justice, the courts are also interested in preserving the authority of the court system and preserving orderliness in judicial proceedings.
Therefore, technicalities will continue to live with us. The drive of the Supreme Court (and that of other courts following suit) is to limit those incidences where technicality thrives, leading to injustice and to allow more room for substantial justice. Indeed, it is only when justice is served on the merits of a case that the society can truly feel the impact of the law.
Is Senator Abaribe’s question genuine?
You never can tell with smart politicians like Senator Abaribe. His “technical” question appears to be more of a subtle protest against the decision of the Supreme Court upholding the election of Mr. Oyetola of Osun State. The CJN cannot be reasonably expected to attempt a review of the Supreme Court’s position in that case on the floor of the Senate in whatever guise. It is enough to mention that what the Supreme Court did in that case perhaps falls into the category of such technical positions the courts consider sacred. Interestingly, this is without prejudice to the logical arguments presented before the Court, persuading it to hold otherwise.
Should the CJN be crucified?
No. The CJN might have misfired in his attempt to answer the question posed. No one is beyond this, notwithstanding our expectations from the exalted Office. As lawyers, we are privileged to assist the court always as ministers in the temple of justice. If our leading Oracle of the Law misfires, our job is to help his Lordship reload.