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By Cosmas Omegoh
Recent developments in the election tribunal have switched the klieg light on the Nigerian judiciary and justice delivery system.
Constitutional lawyers carrying out a post-mortem on bizarre electoral pronouncements particularly in the Plateau and Kano states governorship contests have insisted that what went down was “travesty of justice.”
The duo of Fred Nzeakor and Libros Oshoma, both activists, therefore, want the Nigeria Judicial Commission (NJC) to respond to the judgments recently issued by the Appeal Courts which had caused grievous harm to the polity.
On the heels of the foregoing, Yusufu Alli (SAN), called for reforms and tasked the Nigeria Judicial Commission to take proactive measures to improve on the Judiciary.
Court system in 3 levels –Fred Nzeako
The whole essence of having the judicial system in three levels is to correct any possible injustice meted to a litigant at any of the level of the courts.
Now take, for instance, the essence of the Court of Appeal is to correct any injustice meted to the litigant at the State or Federal High Court or the Customary Court of Appeal at the state level. This is to ensure that when a matter is decided at the State High Court, which is the court of the first instance, and it goes to the Court of Appeal and then to the Supreme Court, all the issues must have been x-rayed so as to be able bring out the meat and the juice of the matter with respect to justice. This is because the whole essence of administration of justice is to ensure there is no injustice. So, it is a constitutional provision which has helped to shape up the society and the civil environment of mankind as we have in Nigeria.
When High Court judgment is reversed at the Appeal Court, and reversed at Supreme Court, does that bother ignorance of the law on the part Appeal Court or primordial consideration?
Law does not have a straight forward formula. However, justice on its own is anchored on perception, beliefs and cultural nuances and experience of the people.
Every issue anchored on the people and their culture is said to be anchored on justice. It is obvious as human beings that have the power of discernment, power to know what is good and what is bad, and be able to separate what is good from what is bad. This is so because we are human beings, the highest level of creation. We know that every human being is built with every natural sense of justice such that we know what is good and what is bad.
So, the whole idea is that a judge who is sitting on trial of any matter, he too is on trial because his judgment is a mirror to look at his personality and understanding of the law, his experiences and his capacity to dispense justice.
In sitting in judgment, he too is adjudged by the society. And that is why every judge will try as much as possible to dispense justice to the very best of his understanding of what justice means. It is a measure of assessment of his person. The kind of judgment given by any judge is measure of who the judge is and the kind of personality he has, whether he is influenced by any primordial issue or he is influenced by pecuniary issue or whether he is able to dispense justice in a pure, simple, straight and logical manner.
And that is why in a place like the USA, for a judge to be elevated to the next court, they are asked critical questions.
We have advocated that the idea of take a bow when people are being screened for higher offices does not help to deepen the idea of standard setting in Nigeria. People should be asked questions. We should dig into their past, their personality, their character and their integrity quotient to be able to know their experience so as to know what they did in the past and so as to know what they might do in the future.
Without mincing words, I will ever recommend such approach of critical questioning as we have it in USA; we should imbibe that in Nigeria and ask critical questions when people are applying for positions of authority.
What goes on in the mind of the ordinary Nigerian when certain judicial pronouncements appear funny and foggy?
Every human being is inbuilt with that power of discernment. God has given us that power of natural justice, whether you went to school or not. Every human being that is sane has that natural ability to know what is right or wrong. That is what we call in legal terms, “the common man’s understanding of the issue.” It is not the technicalities of those who are learned in law.
So, when there is a judgment from any court, or authority, panel or tribunal, the common man will see through it whether justice is served or not and when they feel that there is no justice, in the judgment, the common reasoning is what might have gone wrong in the mind of the judge to have delivered the judgment the way he did? And if they are unable to understand what has gone wrong, it is easy to ascribe it to pecuniary consideration, meaning that the judge possibly, most likely might have been compromised.
Could that be possible some sometimes?
Sometimes, it is possible that a judge has been compromised. But most of the time it is not the case because of the different approaches used. This is because law is a function of one’s background, exposure, training, nuances and the customs, tradition and the norms of the people. A potpourri of all these will influence the opinion of a judge.
A judge may give a judgment without any compromise which may seem out of this world, though it is very rare because any one sitting in judgment first and foremost is not only a sane personality, but one who has been tutored in the act of law and justice delivery.
A judge is learned in justice delivery. And that is why it is easy to say why did he not apply his knowledge and experience in delivering credible justice? That becomes easy for the perception of the society to now tweak; it becomes easy to say he might have been compromised even though is most cases, that might not be the case.
But in most cases, if there is predominant lack of justice in any judgment, then compromise is involved. The compromise might be financial, it might be fiduciary, it might be pecuniary. It might be none of all that, but circumstantial or an anticipation of a favour.
No matter how or the reason a judge has not to deliver justice, in a judgment, that is travesty of justice; there might be a compromise. And the society will perceive it as such.
Now, how do we assess the Appeal Court judgment with respect to Plateau State election?
The Plateaus State issue is extremely very pathetic – pathetic in the sense that the lower court first affirmed the election of Governor Caleb Mutfwang. Then, the matter went to the Appeal Court which said no, and gave all manner of reasons which were bizarre in the eyes of the law. Then the matter went to the Supreme Court which now used the opportunity to correct the wrongs committed by the Appeal Court.
The judgment of the Appeal Court was a clear travesty of justice. The governor was lucky he went to the Supreme Court and the error was corrected. But the PDP members who ran for legislative positions in the State and National Assemblies were not lucky. They were unlucky because their electoral litigation ended at the Court of Appeal.
When that travesty at the Court of Appeal happened, there was no other opportunity for them left. So, they had to go home and lick their wounds, and unfortunately, the mandate of the people was truncated and the trust of the people was withered.
The Plateau State matter was a travesty of justice in the sense that the Court of Appeal in giving its judgment, sidetracked the earlier superior judgment of the Supreme Court which had given a plethora of judgments saying issues concerning the internal affairs of a political party should not be the concern of another political party. And that even if one is a member of that party, it should not be one’s concern if they didn’t participate in the election at the primary. Thirdly, that such issue must be treated as pre-election matter.
On those fronts, the Court of Appeal wittingly or unwittingly, closed its eyes to the pronouncements of the Supreme Court and gave a judgment that can be classified as travesty of justice because the people in PDP ran and won the elections. It was not the business of the men in APC or any other party to bring the issue to the tribunal. At best, they should be described as meddlesome interlopers because they did not participate in the primaries of the PDP, neither did they go to the High Court which is the court of first instance for pre-election matters.
The Election Petition Tribunal is a court of post election matters. It is very much guided by the Electoral Act and the provision of the constitution. But any matter that is a pre-election matter should not go to the tribunal. These are basic legal facts that are expected to be in the knowledge of the justices of the Court of Appeal.
Now, that is enough reason for the common man to begin to suspect that there is compromise. And when the average man begins to suspect compromise, you must understand with him that something must have caused the crayfish to bend otherwise it ought to stay straight.
Do we take it that justices at the lower court had more superior knowledge of the law than those at the Appeal Court?
Here, two main issues can be brought into contemplation. First, the personality, and character of the judges sitting at the court of first instance, in this case at the High Court level; their capacity to dispense justice is one major factor. The second is those who were promoted to the Court of Appeal, was that done on merit, or based on other primordial sentiments, or other considerations other than merit? And such people who were promoted, going by other considerations other than merit of course, the age-long maxim “you cannot give what you don’t have” came into effect.
The late Hon. Justice Chukwudifu Oputa did not sit on the bench of the Appeal Court for one day. He moved straight from being the Chief Justice of Imo State to the Supreme Court because the panel of examiners scrutinising those to be appointed found out that in 80 to 90 per cent of the cases he handled as a High Court judge got affirmed at Supreme Court, and there were concurrence at the Court of Appeal and dissenting judgment at the Court of Appeal. So the examiners felt there was no need to scrutinise him; they reasoned that although he was at the High Court, he had the superiority of the Supreme Court. So, he was elevated to the Supreme Court to sit on the bench of the Supreme Court; and there, he proved his mettle. That is why till today, he is remembered with the sobriquet of Socrates of the Supreme Court. That tells you that the character of the judge is an issue, while the nature of his appointment is another.
Today, everyone now knows that merit plays the second fiddle in appointments to high offices in the country. The same applies to the judicial system; sometimes, judges are elevated not because of their superior capacity, but because of their connection to the powers that be at every level.
What can the NJC do now to forestall a repeat of the Plateau debacle?
Unfortunately, that was a civil matter that terminates at the Court of Appeal. The constitution does not have any provision for the victims to go higher. So, there is no remedy.
Because we operate a constitutional democracy, there was no other thing for them to do other than to go home and lick their wounds.
But, I’m of the opinion that the NJC must call those justices of the Court of Appeal who delivered that judgment which amounted to travesty of justice to order. They need to be warned, or sanctioned and even investigated.
Why the country remains stunted is because people are not called out for wrongdoing or infractions of the laws of the land. It is expected that the justices of that Court of Appeal should know some of the judgments of the Supreme Court which have become precedence and must be obeyed at all times by the lower courts and even the Supreme Court itself. And so, what they did amounted to usurpation of the authority of the Supreme Court.
I believe that the lawyers of the men who were shortchanged must have called the attention of the Appeal Court justices to the pronouncements of the Supreme Court, but for whatever reasons best know to them, they decided to sweep that under the carpet and gave their own pronouncement. They should not be applauded; rather, they should be pulled over for questioning and sanctioning no matter how mild by the NJC.
How fair was the action of the Appeal Court justices?
It was as bad as coup d’état against the mandate of the people. Even when they have used constitutional provisions to ligitimise their action, what they have done was to go against the will of the people.
We cannot call for public protest, but we can insist that they be called for questioning and measure put in place to forestall an occurrence of such in the future in our democratic life.
Some persons are interfering in Appeal Court judgments –Libros Oshoma
Consistently, we have had challenges, issues where the courts have had reversals in one way or the other. In some cases, depending on the particular reasons for the reversal, people tend to ever have a deeper understanding of the case at hand when the reversal is done. But when there are precedents pointing in a particular direction and a lower court should not look the other way despite the clear precedence.
At one of the presidential election petition tribunals, the issue of membership of political party was argued by all parties and the Court of Appeal firmly took a position on it, explaining why it should not be a post-election matter. On that ground, the provision of section 77 of the Electoral Act was put to rest that the issue of membership of a political party is not only a pre-election matter, but also a family affair left for the parties to decide. That the issue of the register of the party cannot override the decision of the party to field a candidate. That the fact that ones’ name is not on the register of membership submitted to INEC does not invalidate the fact they are not a member of that party, having met all other requirements. The issue went as far as the Supreme Court which ruled on that provision, agreeing with the position of the judges sitting at the Appeal Court. So, there is a clear-cut precedence.
When a lower court now departs from that precedence established by the Supreme Court, that becomes frightening. And then call for worry.
That was what happened in the case of the Kano governorship election. The twin issues for which the Court of Appeal based its judgment on were issues that had been decided and ruled upon by the Supreme Court, and I wonder why the Court of Appeal would brazenly depart from that precedence established by the superior court.
The issue of ballot paper, for example, section 53 of the electoral act was clear that provided the ballot paper, is recognised as coming from the same bundle of booklets given by INEC. And the issue of witnesses speaking to ballot papers also was decided upon. So even with all of these laid down, the Court of Appeal stood logic on its head, and took a decision different from what have been laid down.
And so, when that judgment was delivered, a lot of us felt that judgment has no place in our modern electoral laws. And we hoped and expected that the Supreme Court would do the right things.
But from the feelers we are getting now, the Kano State Governor thanking President Bola Tinubu for not interfering, one can infer that some persons have been interfering in that Court of Appeal judgments.
Now, does the Kano State Governor’s statement ring a bell in the ears?
Now, when we hear some persons saying we thank Mr President for not interfering in a matter in court, what it tells me is that it is the reason why the government gets interested in who heads the judiciary.
We remember prior to the 2019 general elections, the case of the then Chief Justice of the Federation, Justice Walter Onnoghen, came to the fore. We remember how he was unceremoniously removed even when the allegations against him were frivolous. I remember how some people said the government was not happy that he, Onnoghen was hobnobbing with Atiku Abubakar.
But the fact remained that the then President Muhammadu Buhari was not happy because he felt the man might be too independent for them to interfere with.
We have also seen cases at the state level, in Edo State for example, where nine members of the state Assembly were not inaugurated and the matter was referred to court, and it a space of two years, the matter was transferred to seven judges and was eventually not heard. And you listened to the inaugural speech of the chief judge saying “there should be collaboration between the Judiciary and the Legislature. It does not mean that they should be fighting.” When you read between the lines, you realise that in the determination of judicial disputes, there is constant interference by the government and political actors. That is why they are always quick to thank a governor or president for not interfering whereas the judiciary is supposed to be an independent arm of the government that is supposed to adjudicate over disputes between the Executive and the legislative arm.
But if the Executive can interfere brazenly, then, there is a cause to worry. What that means is that our democracy is threatened because the institution that is suppose to uphold and strengthen the pillars of democratic norms, values and practice, if it can be subject to manipulations and interference at every turn, then we are truly still not practicing democracy but a different form of government we are yet to find a name for it. That’s my fear.
As that culture grows, where will it lead the country?
That practice is not abating very soon because from what I see, and what I feel, it is threatening, it is frightening.
As far back as ten years ago, a former Supreme Court Justice, late Kayode Esho, raised an alarm that behind every bribery allegation against a judge, there is a Senior Advocate of Nigeria who is the conveyor belt.
We recall that shortly after Buhari came to power in 2015, there was this sting operation against some justices; there was also an allegation by a judge that a then serving minister of Transportation came to his house and tried to influence a matter in court, warning him that the president was interested in it. That was the testimony of a judge. Here, we are not just talking about bribery but undue interference.
Now, see another challenge. Recently Prof Chidi Odinkalu raised an alarmed on the quality of some judges and the relationship they have with the political class.
Not long ago, when the justices of the Court of Appeal were being screened, a former president of the Bar Association, Olumide Apata, raised an alarm about the quality of knowledge of some of the candidates. And so, when at the appointment of level, there is already an interference to the extent that the appointment of judges is becoming hereditary, sexually transmitted, and where judges will appoint their wives to the higher bench and they rise to the pinnacle, that in itself is a big challenge.
We have seen wives of former ex-governor of River and their daughters being elevated as judges. This is where the interference starts from. And so, if you begin to tolerate such hereditary system of appointment of judges, you wouldn’t really need to bribe.
We also saw the case of a serving senator standing in the hallowed chambers of the National Assembly to say that he knew how he had to plead with his wife to interfere in cases involving for his colleagues. Then you conclude that what we have is a frightening situation. It is not just a keg of gun powder but one that has exploded.
That is why people are calling on the judiciary to do a self cleansing to truly bring back hope, because if hope is lost, all is lost because the judiciary, it is said, is the last hope of the common man.
To tell you the truth, even lawyers are having doubt about the kind of judgments that are coming out from the courts – the temple of justice. That means that the society itself is collapsing or has collapsed. The institutions that can thread it together has been seriously battered and compromised.
What are the likely consequences of all of that?
Part of the consequences of what is going on now is that the people are going to be taking the law into their hands. People are going to say gone are those days when you hear some judges talk, you believe that their ideas were coming from heaven. These days, even the layman is questioning certain pronouncements made by some judges.
Part of the consequences of the ongoing is also that that this globetrotting looking for investors will fall flat on its face; foreign concerns are not going to come here to trade on our land because they don’t have faith in our judicial system. That also will affect the society in general.
NJC has to continue to reform the judicial system – Yusufu Alli, SAN
Some of us have been clamouring that we need to digitalise the court system; we need to deploy IT in our system. If for example, we have a robust IT system and social media platforms working for the system, once a judgment is delivered, it will be fed into the system and everyone will have access to it. But that is not happening.
I have also taken part in a matter we challenged the propriety for example, of election or political issues occurring in Anambra and you take the matter to Sokoto for adjudication. I don’t think that is right. And I think that the Supreme Court and the NJC have been very consistent about it.
I think the next level now is that every trail judge stays with their boundaries. There there are already laid down procedures for sanction. Parties who are involved already know the steps to take.
If politicians deliberately take a matter that occurred in Oyo State to Port Harcourt, any judge who takes that must also know that he is treading on a dangerous terrain. Any party that is affected by such lack of discretion must also know what steps to take and bring such judges to book.
I’m happy that the Chief Justice of Nigeria and the chairman of NJC have made it clear several times that they will not allow anyone to mess up the system and open it to ridicule. I think we now have a long mechanism to deal with such issues and make things right again.
Does the NJC have the will to do the needful?
Over the past years, the NJC has ordered the sanctioning and retirement of judges.
My only problem is that we Nigerians are very interesting people. Once an action is not in tandem with our expectations, we call for the disbandment of the body. That’s not the right attitude.
If we have to reform that is the way to go. There is no perfection in human institutions. If there are issues, we might have to reform. I always say in my own way that ‘beheading is not the solution to headache.’ We cannot disband every institution just because it has done something that is not right or does conform with our own expectations. That is not the right attitude.
Every institution is populated by human being. Let’s not think that judges are angels, no they are not. If the NJC does not react in a manner some of us expect, that is not the end of the road.
In all, human institutions need to be revisited and reformed from time to time based on experiences, based on what has happened. That is normal.
Of course, there are so many areas in our justice delivery system which need to look at. That is ongoing because it is a human thing.
You will recall that before 2011, at some point, electoral petitions would last three and half years. Sometimes the tenure would almost elapse before we came out of the tribunal. But because of experience, the new act now says that election petitions must not last more than 90 days; an appeal must not last more than 60 days; and we are making progress.
We just must keep our eyes open. Reforms are not a one-day thing. They are almost forever. When issues arise we address them; if you look that the number of amendments we have had so far, especially on electoral matters, they all are products if experience. As we work the present laws, we will be having new experience, new insight, new opinion and we look at them.
Before now, there was nothing like Administration of Justice Act. But our experience showed that, that was the way to go so that we can speed up criminal trials. And we are doing that.
