Chief Mike Ozekhome ,SAN, in this interview with ISE-OLUWA IGE, compares the nation’s judiciary during the First, Second and Third Republics with the current Fourth Republic and concludes that though it still rates best among the three arms of government, yet, it is high time the judiciary particularly the apex bench engaged in urgent introspection and self-examination by revisiting some of the decisions recently entered per incuriam (in error) and correct them if the nation’s democracy must not only survive but also wax stronger.
62 years into the political independence of Nigeria, how would you rate the nation’s judiciary in terms of independence from both the executive and the legislative arms of government?
Let me say that with all the problems besetting the judiciary from time immemorial, particularly from the flag independence we got 62 years ago till now, I still dare say, thumping my chest that the judiciary remains the best of the three arms of government in terms of upholding democracy, in terms of deepening and widening the plenitude and the amplitude of democracy.
For instance, during the military junta years, we have the executive which combined the legislative function churning out decrees and edicts. At the time, it was the absence of the legislature that made people to say that there was no democracy because the judiciary always remained with the executive while the executive usually annexed the functions of the legislature by churning out decrees and edicts. But even under the said military juntas, the Nigerian judiciary refused to blow muted trumpet.
We saw that in great cases like Ojukwu Vs the Governor of Lagos State when he was thrown out of his lodge in Ikoyi and the Court insisted that he must first be brought back to his house mandatorily before the Court will listen to the players of the Lagos State Government asking for a stay of execution or to go on with the main case.
I have rated the judiciary higher than the two other arms of the government because the executive, the legislature and the judiciary constitute the three arms of government in the tripartite doctrine of separation of power famously popularized by the great French philosopher, Baron De Montesque in 1748. That is not to say that the judiciary does not have its own problems; problems that are systemic; problems that afflict its performance; problems that question its integrity in the eye of the average common man in terms of its dispensation of justice.
Bad perception
For instance, not few Nigerians believe that justice can only be bought and sold to the highest bidders in terms of people with deep pockets. Not few Nigerians believe that, particularly in election petition matters, that the judiciary is up for grabs, in terms of where the pendulum swings during electoral contestation. Many people believe for some occasions that some judges even fight frantically to be included into election petition tribunal/panels because of what many people believe will be the money that will accrue from it.
So, such a perception is dangerous for effective dispensation of justice. It may not be wholly true. It may also not be wholly false. But we must be careful because perception is reality. And like we always say in local parlance that there is no smoke without fire, and there is no fire without smoke. It is therefore left for the judiciary to do everything possible to wipe out from the mind of the public this ugly, odious perception that justice is being sold to the highest bidders. The judiciary must run away at the top speed from what Alexander Hamilton once said about the judiciary in his Federalist Paper No 78, when he said, “Of the three arms of the government, the judiciary is the weakest. It has neither purse nor sword to effect its judgment”.
When an arm of government that is already weakened by the system itself, suffocating under the bullish executive and under a strangulating legislature, and decides again to self-immolating and self-destruct by embarking on a specious gamble or doing those things which in the eye of the common man and woman on the street, do not endear it to them, then, there is a problem. At that time, that problem must be solved immediately by no other person than the judiciary.
Why Judiciary independence is sacrosant
In other words, the judiciary must assert its independence very fiercely, very ferociously, very determinedly. Matters have been made worse by an uncompromising executive that sees the judiciary as not just a rival but an unnecessary evil, something that must be left weak.
That was why sometimes in October 2016, hooded DSS operatives marched unto the homes of some Justices of the Supreme Court and Judges of the Federal High Court, broke down the windows and doors, terrorized the families of the judges, and their dependants on the flimsy excuses that they were looking for documents to implicate these jurists on matters concerning the so called corruption.
Of course, they never found anything. One of the affected judicial officers, Justice Ngwuta, was later cleared of these allegations. But the government never apologized to him and Justice Ngwuta never appeared to have gotten over that traumatic experience that dehumanized him; that lowered his credibility, humanity and dealt a blow on his moral and psychological compass. He never appeared to have recovered from it. He died barely two or three years later.
Also, a person like Justice Dimgba, a very brilliant PhD holder in Law was traumatized and he was later found not guilty at all. Nothing was found against him. But the government never apologized to him.
If not for the case of Justice Ngajiwa decided by the Court of Appeal and later upheld by the Supreme Court that you cannot charge serving judges to court for any criminal conduct until they have first passed through the furnace of fire of the National Judicial Council, NJC, established under the constitution, judges by now would be struggling under the moving bus and rampaging vehicles of the executives.
No judges in Nigeria can tell me that their confidence was not shaken; that their courage was not battered, that their judgments were not affected during those locust days when the executive was on rampage against them.
The quality of judgments that started coming from the judiciary during that period with all due respect was nothing to write about, because one could see the handwriting of fear-induced judgment, fear of the unknown, fear of the executive, fear of the legislature, fear of fear. The judgment said it all!
Quality of S’Court judgments
I have great respect for the Apex court of the land (the Supreme Court) but I want to emphasise that the Supreme Court should still try to do self-introspection, self-examination, and look at the judgments of the same Supreme Court delivered between 1960 up to the era of Great Jurist like the Socratic Justice Chukwudifu Akunne Oputa, Justice Samson Odemingwe Uwaifor, Justice Karibi Whyte, Justice Udoma, Justice Idigbe, Justice Nnamani, Justice Niki Tobi, even Justice Lawal Uwais, great Jurist, people like Kayode Eso.
That was the golden era of the Supreme Court when judgment were predictable, when lawyer will go to court and say, I will win this case or I will lose this case, because judgment then was based on stares-decisis. Judicial precedents were known and could be known, and could be used.
Nowadays, the law has become so malleable like clay waiting to be moulded into any shape to the extent that any conflicting decisions are not only from the intermediate courts now, that is the court of appeal, and the federal high courts but even from the Supreme Courts itself.
With all due respect, that is worrisome. It is worrisome to me. For example, when there is a decision of number one, the person who came number four in the election petition, in the electoral contestation in the state, becoming number one, and being made the Governor of that state today to the extent that one of the justices ( I think Justice Nweze) literally cried on the bench that this judgment will continue to haunt this court until something is done to remedy it
Worrisome judgments
It is so terrifying that with all due respects that the same Supreme Court that has said that parties should not simply dump documents on a court of law and expects the court to go to its chambers and begins to go through the documents one after the other, to count votes, the apex court (Supreme Court) in the case of Hope Uzodinma and Emeka Nwajiuba was able to retire to the chambers to count votes and know how many votes were put there, who won what and the counting of the votes even showed that the votes that were finally arrived at were even more than the accredited voters. And it showed that only Hope Uzodinma got all the votes. No other party got a single vote.
No votes were wasted. Even the other candidates in the election appeared not to have voted for themselves. Such judgment, with all respect, are worrisome. I therefore urge the Supreme Court that in the nearest future, should go back to the drawing board and quickly correct such judgment which appears to be a travesty of justice.
After all, the Supreme Court told us that Law is nothing but a mere handmaid with which judgment is delivered. In order words, the final goal at the end of the day is justice. Law is just a handmaid to deliver justice.
The Supreme Court should therefore again reconsider its earlier stand in Adegoke Motors case where it seems to have insisted that its judgments are written on Hammurabi tablet that cannot be changed—Judgment that appears infallible that cannot be revisited.
It is only God that cannot make mistakes. Human beings are not God. So, we can make mistakes. The Supreme Court should therefore take the humble pie by believing that it can make mistakes and if it does, it should take steps to correct those mistakes and heavens will not fall. The Supreme Court is not just a Court of Law and Equity it is also a court of policy- making. That is why they must revisit that their dictum in Adegoke Motors’s case where the Apex Court said that, the Supreme Court is final not because it is infallible but it is infallible, because it is final.
That judgment, that dictum appears to say that because it is final and because that finality must be maintained even when fallibility is not discovered, the Supreme Court must still insist that it is not infallible because that judgment is final. To me, with all due respects, that is a mindset and fixation that will stultify the law and further alienate the judiciary from the Nigerian people who will feel that courts of law are simply courts of technicality and not courts of justice.
I am therefore saying that the quality of judgments for different levels of the courts which appears to be low should be quickly revisited so that it will go up.
Necessary reforms in S’Court
One way of revisiting this, is by infusing particularly the Supreme Court with different personnel in terms of justices. For example, if you look at the various intermediate courts’ decisions concerning section 83 and particularly section 84 of the Sherriff and Civil Procedure Act, you will find the great problem we are having that litigants are suffering by going through the court of law for 5 to 15 years and has won his case at the Supreme Court, he now wants to execute the law but they are saying you must seek the consent of the Attorney General where the money for example is kept with the Central Bank of Nigeria.
A public officer? It is an infamous section that does not meet the judgment of the case. The best way to go about it is for the NJC and the FJSC to bring in experienced lawyers, brilliants academics, Professors of Law to infuse the Supreme Court with people of different backgrounds to look at matters of decision making from different perspectives.
I do agree that most of the Court of Appeal justices are hardworking and should be promoted to the Supreme Court . After all, the primary purpose of going from the Magistrate to the high court, the Court of Appeal is to eventually perch at the Supreme Court. There is no question about that. It is a legitimate aspiration. Nobody is querying that. But all I am saying is that, as at today, you have only 13 justices of the Supreme Court out of the maximum of about 21 justices. In all the shortlisting that has just been done for elevation to the Supreme Court, all of them are from the Court of Appeal justices going to the Supreme Court.
Even the lawyers, some of the best in the legal profession whose names were put forward from the profession as practitioners and from the academia, none of them was found fit enough to be considered. That is not good enough because it gives the impression that going to the Supreme Court from the Court of Appeal, it is like now by way of progenitor like from father to son or father or daughter or from position to position.
It is becoming quota-based because you find that the justices that retired, they must find a way to replace that Justice from the geo political zone of the retired judge. There is no problem about that if you want to ensure equity and balance in the country.
But of course, legal practitioners, SANs, professors of Law who are very sound from the University who are also very sound who could also have come from that zone should be considered. For example, if you want to appoint 8 justices into the Supreme Court to fill available vacancies, what is wrong for these lawyers with intimidating credentials, a SAN or a professor of law who has published books to be considered?
Let me remind us if we have forgotten this: Hon Justice Nwokedi and Justice Oputa were taken straight from the High Court to the Supreme Court and nobody can doubt that their judgments were some of the best today. In fact, Justice Oputa later appeared on the bench like Lord Dennings which was why we call him the Socrates of the bench.
Even if Oputa wrote a mere one page dissenting judgment, in a case, that one page alone will be loaded and laden with a lot of principles of law that can be extracted. You will see the law whether contributory, dissenting dripping with law, with philosophy, with history, with scriptures, with logic, with classics, a beauty to marvel, a beauty to watch, with poetry.
Dr Augustine Nnanani also was never a judge for one day. He was taken straight as a practitioner and I think also as Attorney General, straight to the Supreme Court. Some of his judgments are some of the best judgments we have up till today. The Hon Justice Elias who was also the President of the World Court and one of the greatest jurists, the first Nigerian later followed by Prof Ben Nwabueze to have LLD, Doctor of Law through publications, not honorary, was never on the bench one day. He was taken straight to the Supreme Court and the quality of his judgment cannot be impugned by anybody.
If this is the case, why do we now feel that no academic , no legal practitioner is qualified to go to the Supreme Court. I hereby call on the Federal Judicial Service Commission, the NJC to look at this issue critically and do the needful in order to have a stronger apex court on the land and improve on the quality of the judgments that come from that hallowed temple of Justice.
Infrastructural development
In terms of infrastructural development, it is shameful that you still go to Court and there are no air conditioners. The fans that are blowing are laden with cobwebs.
Go to the Court of Appeal, you will see files on the ground in a big hall. Go to the various High Courts of justices across states of the Federation and High Court of Nigeria, you will see files on the ground. Why won’t litigants not pay one of the court clerks to go to one of the files and remove some valuable documents so as to kill a case or have judgment in his favour?
Unconducive environment
The environment itself is not conducive. Justices themselves are not well paid. How can you be paying judges of a High Court a paltry sum of between N500, 000 and N600, 000 in a month which is not enough for some legislative or House of Assembly members even some councillors to fuel their cars in a month?
Yet these are judges who have husbands and wives, children, who have dependants, extended families apart from their nuclear families. Why won’t there be corruption in the judiciary? I do not subscribe to corruption but I’m saying as a realist, how do you expect a judge who is collecting between N500,000 or N600,000 in a month with all the dependants that I have earlier mentioned to act like Angel Michael or Angel Gabriel when some rampaging politicians who have cases before them dangle monies before them.
Imagine a judge being paid between N500,000 and N600,000 in a month, who knows that when he retires, he will not have a house to retire to and that he may be forced to live among the people some of whom he had dismissed their cases and that his life would be in danger and such a judge sits in his chambers and one of the corrupt lawyers from his client that offers N50million or N100million to decide a case in favour of his client, the judge has to be Pope Pius and Archangel Michael or Angel Gabriel to resist that kind of temptation.
I still urge them to resist that kind of temptation because at the end of the day, all the wealth we have in this world , we will leave them here and meet our God.
VANGUARD
