There is an old legal maxim that says he who seeks equity must do equity. There is another practical principle familiar to lawyers across common law jurisdictions: if a person wishes to invoke the protection of a court, that person should ordinarily submit to the authority and jurisdiction of that court.
Yet Nigeria has a habit of producing legal situations that leave even experienced practitioners scratching their heads.
A recent example is the decision of the Federal High Court in Abuja to grant an application by former Minister of Petroleum Resources, Diezani Alison-Madueke, allowing her to tender a judgment of the Southwark Crown Court in London, where she was reportedly acquitted of bribery and related allegations.
Ordinarily, there would be nothing unusual about a litigant relying on a foreign judgment. Courts around the world routinely receive and consider foreign judgments where they are relevant to issues before them.
The curious aspect is that Ms Alison-Madueke has consistently remained outside Nigeria and has not physically submitted herself to the jurisdiction of the Nigerian courts in the criminal proceedings involving her. Yet applications are being brought on her behalf and entertained by Nigerian courts.
This raises an important constitutional and procedural question: how is this legally possible?
More importantly, should it be?
The Constitutional Right to Access the Courts
The starting point is Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which guarantees every person the right to a fair hearing.
The Constitution provides that in the determination of civil rights and obligations, every person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law.
Access to justice is therefore a constitutional right. Nigerian courts have consistently held that fair hearing is one of the pillars upon which the administration of justice rests.
However, the constitutional guarantee of fair hearing does not automatically answer the more specific question of whether a person who is absent from criminal proceedings can continue to file applications while refusing to appear before the court.
For that, one must look at the statutory framework and judicial decisions.
Civil Proceedings and Criminal Proceedings Are Not the Same
In civil litigation, the answer is relatively straightforward.
A litigant does not need to be physically present before a court to commence proceedings or file applications. Lawyers routinely act for clients who reside abroad or are otherwise unavailable. The law recognises representation through legal practitioners.
If Ms Alison-Madueke were merely pursuing a civil claim challenging the actions of a government agency, there would be little controversy.
Criminal proceedings are different.
The state is not merely resolving a dispute between private parties. It is exercising its coercive powers against an individual accused of violating the law.
That distinction has traditionally required a greater degree of personal submission to the authority of the court.
The Requirement of Arraignment and Presence
The Administration of Criminal Justice Act 2015 generally requires the presence of a defendant during criminal proceedings.
Sections 266 and 271 of the Act emphasise the importance of the defendant’s presence during trial. The principle is simple. Before a criminal court can effectively exercise jurisdiction over an accused person, that person must ordinarily be brought before the court and informed of the charges.
The concept of arraignment is not a mere procedural formality. It is the process through which the accused is called upon to answer the allegations made against him or her.
Traditionally, courts have frowned upon defendants who seek to enjoy the benefits of judicial intervention while simultaneously avoiding the obligations that come with submitting to the court’s authority.
The Emerging Exception
The legal position becomes more complicated when the applications being made do not directly concern the substantive criminal charge.
Over the years, Nigerian courts have entertained applications relating to jurisdiction, forfeiture proceedings, procedural irregularities, warrants, investigative powers and constitutional rights even where the accused person has not physically appeared before the court.
This is particularly common in asset forfeiture proceedings initiated by anti-corruption agencies.
The courts have often distinguished between:
- Defending the criminal charge itself; and
- Protecting procedural rights or property rights.
The latter category has frequently been allowed to proceed through legal representation.
As a result, Nigerian law has developed a somewhat unusual middle ground in which an individual may challenge aspects of proceedings affecting his or her interests without necessarily submitting fully to the criminal process.
What Has the Supreme Court Said?
The most relevant guidance comes from the Supreme Court’s decision in Nwaoboshi v. Federal Republic of Nigeria.
Following his conviction, Senator Peter Nwaoboshi sought bail pending appeal. However, he had failed to surrender himself to the Nigerian Correctional Service after the judgment against him.
The Supreme Court refused his application.
The Court’s reasoning was straightforward. A litigant who refuses to submit to the authority of the law cannot expect the court to exercise its discretionary powers in his favour. Judicial discretion is an equitable remedy and cannot be claimed as of right by a person who is himself in disobedience of the law.
Although the case concerned a post-conviction application for bail rather than a defendant who has not yet appeared for arraignment, the underlying principle is broader and highly relevant.
The administration of justice depends upon respect for the authority of the courts.
A person cannot ordinarily reject the authority of the court when it is inconvenient and invoke that same authority when it becomes useful.
The reasoning in Nwaoboshi therefore raises an uncomfortable question in relation to the Diezani proceedings.
If a defendant has consistently remained outside the jurisdiction and has not submitted herself to the criminal process, should the court continue to entertain applications filed on her behalf?
Or should the courts insist that a defendant first submit to the jurisdiction before invoking judicial discretion?
Fair Hearing Versus Respect for Judicial Authority
The constitutional argument in favour of hearing such applications is obvious.
Section 36 guarantees fair hearing.
Section 44 protects property rights.
Where the state seeks forfeiture orders, confiscation of assets or other orders affecting legal rights, courts are naturally reluctant to deny a person the opportunity to be heard.
No court wishes to be accused of condemning a person unheard.
Yet there is another constitutional value at stake.
The judiciary derives its legitimacy from obedience to its authority. Courts issue summonses, warrants, judgments and orders on the assumption that those affected by them will comply.
If individuals are permitted to ignore the coercive aspects of judicial authority while selectively enjoying its protective aspects, the integrity of the justice system itself may be weakened.
The issue is therefore not simply about fair hearing.
It is about whether the judicial process can be treated as an à la carte menu from which litigants choose only the parts they find convenient.
The Missing Nigerian Doctrine
Many jurisdictions have developed what is commonly known as the Fugitive Disentitlement Doctrine.
Under this principle, a fugitive from justice may be denied access to certain judicial remedies until he or she submits to the jurisdiction of the court.
The doctrine rests on a simple proposition: a person cannot simultaneously evade and invoke the authority of the court.
Nigeria has never fully embraced such a doctrine.
Instead, Nigerian courts have generally preferred to hear matters on their merits rather than shut litigants out entirely.
That approach reflects the constitutional preference for fair hearing and substantive justice.
However, it also creates situations such as the present one, where a defendant who remains beyond the reach of Nigerian law enforcement authorities can nonetheless continue to participate in aspects of the legal process through counsel.
The Bigger Question
The issue is not whether Diezani Alison-Madueke’s lawyers are competent to file applications.
Lawyers act for absent clients every day.
The more fundamental question is whether a person who has consistently declined to present herself before the courts should enjoy unrestricted access to procedural remedies while remaining outside the reach of those same courts.
Can a defendant tender foreign judgments?
Can a defendant challenge procedural decisions?
Can a defendant seek reliefs from the court?
If the answer to all these questions is yes, then at what point does submission to the court’s jurisdiction become necessary?
The Supreme Court’s reasoning in Nwaoboshi suggests that obedience to the authority of the courts is not a trivial matter. The Court has already indicated that a litigant cannot expect favourable discretionary treatment while remaining in defiance of legal obligations.
Whether that principle should be extended to defendants who remain outside Nigeria while continuing to litigate through counsel remains an open question.
Conclusion
For now, Nigerian law appears to favour access over exclusion. Courts remain reluctant to shut their doors entirely, even to litigants whose relationship with the judicial process may be, at best, selective.
But the Diezani proceedings expose a tension that Nigerian law has not yet fully resolved.
On one side stands the constitutional right to fair hearing.
On the other stands the equally important principle that courts should not permit their processes to be used in a manner that undermines their authority.
The Supreme Court’s decision in Nwaoboshi v. FRN reminds us that respect for the judicial process is a two-way street. Litigants expect courts to protect their rights, but courts are equally entitled to expect litigants to submit to their jurisdiction.
If a defendant can remain abroad indefinitely, avoid arraignment, challenge proceedings, tender evidence, seek relief and invoke constitutional protections through counsel, the question inevitably arises: when does submission to the authority of the court cease to be a requirement and become merely an option?
That is a question that goes far beyond Diezani Alison-Madueke. It goes to the heart of the credibility and coherence of Nigeria’s criminal justice system.
This article would sit well alongside your previous pieces on the DSS, the judiciary, and constitutional due process because it focuses on the tension between fair hearing rights and the authority of the courts rather than on the merits of the allegations against Diezani herself.
Centre for Nigeria Progress 