With his passage, the legal community has lost one of its finest judges of all time. He was a legal colossus par excellence who contributed in no little way to the development of Nigeria’s legal jurisprudence. His contribution to our laws will remain indelible in our law books and on the sand of history. He was a judge in the mould of Denning and Througood Marshall whose contributions to the legal jurisprudence in England and America still revert till today. No wonder we called him our own Lord Denning. Eso showed his zeal to excel very early in his career. God bless the day he was made a judge! Eso’s indelible marks in law, and administration will remain a fountain through which generation yet unborn will draw inspiration from, and I dare say that these landmarks are still a virgin forest still unexplored.
In law, his first constituency, Eso made his marks which have no doubt changed the face of governance in the country. He and the living legend, justice Oputa, the one we call our own Socrates championed the cause for judicial activism. While some judges were still trembling on whether to allow citizens test the constitutionality or otherwise of government decisions and policies in court, on the ground that it will lead to floodgate of actions in court, Eso delivered the first launchpad in his dissenting judgement in the case of A.G BENDEL STATE V. A.G FEDERATION (1981) NSCC 314 at 394 where he opinioned that on constitutional issues, if this is what it imports, let there be a floodgate.
Today, that dissenting opinion has become the law. Eso was not one of those judges who hang on the archaic mantra of my hands are tied. His judicial hands were never tied. In fact, he was a firm believer in that immortal words of Oputa those judges are to pour meaning into the mute words of the constitution. This was why he said in FAWEHINMI V. AKILU (1987) 4 NWLR 797 at 843 the authority which many jurists and lawyers rely on when arguing a case on locus standi that a judge is certainly neither a robot nor an automation. In every step taken by a judge, his discretion is called into play, whether in interpreting the law or in deciding an action one way or the other. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are to be fed into the machine called judex. Eso was a judicial purist. Even in controversial cases, he maintained his principled stance unlike some judges today. He never caved in to government pressure.
He administered justice no matter whose ox was gored. Pouring encomium on Eso in a book, professor Sagay said of him thus: justice Kayode Eso is one of the most brilliant and courageous judges Nigeria has ever been blessed to have. He is endowed with a fertile mind, great intellect and scholarship coupled with the highest integrity and industry. His unfailing guide in all his epochal indeed historic judgements was justice must be done. We cannot but agree! Eso showed his independent mindedness as a judge in the Mystery Gunman case when he refused to convict Wole Soyinka despite pressure from the Western Region government which Eso himself was serving.
How many of our judges can replicate this today? I am sure, none! Eso continued with this independent mind all through his career on the Bench. In the celebrated case of AWOLOWO V. SHAGARI ( 1979) 1 SC he delivered a dissenting judgement lampooning the majority decision which in spirit he would have described as tyranny of the majority.
When the Western State Court of Appeal was created on 1st of June 1967, Eso was one of the first set of judges to be elevated to that court which acted as intermediary court between the high court and the Supreme Court. Commenting on Eso’s elevation, Akinola Aguda (of blessed memory) noted that he deserved the preferment being a judge of sharp intellect and acute analytical mind. Eso went on to become at a point the acting president of that court and later on, the first Chief Judge of old Oyo State. By 1979, Eso was appointed to the Supreme Court from his position as the Chief Judge of old Oyo State. He and Oputa are some of the judges who have enjoyed this privilege of elevation to the Supreme Court from the High Court. This no doubt was in recognition of his honesty, forthrightness, courage, erudition and his commitment to do justice at all times. Eso was at the Supreme Court for 12 years.
By the time he retired in 1990 at the age of 65, it was certain that he was only half way to the zenith of his illuminating career and contribution to fatherland. This no doubt spurred the agitation that judges should retire at 70, as it is today. He was not one of the judges who pander to the whims and caprices of government power. At any given opportunity, he denounced the excesses of the Executive and the Legislature. He held the scale of justice over and above every person or authority. In OJUKWU V.
MILITARY GOVERNOR OF LAGOS STATE (1986) 1 NWLR (pt.18) 621, Kayode Eso enunciated the principle of law that one cannot be in contempt of court and at the same time seek the court’s equitable relief. He held that to use force to effect an act and while under the marshal of that force, seek the court’s equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be. He insisted that the late Ikemba be restored to his father’s property until the final determination of the suit. He continued that the rule of law knows no fear, it is never cowed down it must be accepted in full confidence to be able to justify its existence. That is the kind of stuff kayode Eso was made of.
Both within and outside the Bench, Kayode Eso has contributed immensely to the growth of the legal profession and fatherland. Just after retirement from the Supreme Court, he was appointed the Pro-Chancellor and Chairman, Governing Council of the University of Benin. As a judge he had delivered judgements concerning university administration and discipline of staff and students.
He used that opportunity to recount the ugly situation in our universities. He said partly that”What is of great concern to me and should be to millions of Nigerians is the governance of our university. To start with, the universities are treated like parastatals of government; and indeed, inferior parastatals. Because the government pays the piper, they believe in dictating the tune just anyhow. He chaired many government commissions while on retirement which was part of his contribution to the growth of governance. Born Obakayode (as he was named by his grandfather) in 1992, his early career as a lawyer took off in Jos where it did not take him long to establish his presence in the profession to the consternation of some of the senior lawyers who were in town before him. It took hard work, perseverance and patience to reach the peak of his career. He was gold. Pure gold. He left with his name unblemished. Rest in peace the good judge!
Chimezie Elemuo
