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NJC PALAVER: PLEASE LEAVE GOD OUT OF THE MATTER

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My village church, Christ Church (Anglican Communion) Okofia-Otolo, Nnewi, organises a once-a- month Sunday church service in Lagos for its Lagos based members. I was touched almost to tears when one of my kinsmen, Emmanuel, a petty trader and occasional ‘okada’ rider, led the intercessory prayers in Igbo and prayed ever so fervently for God’s grace and guidance for President Jonathan and others in political authority at the September service held on Sunday, September 11, 2011. To think that proverbial ‘poor cousins’ like him and many of the undeservedly impoverished Nigerian underclass are a wellspring of good wishes for our leaders, most of whom are criminally misleading us, is amazing. But that is another matter. At an opportune moment in the church service I made a prayer request for God’s grace and guidance for the new Chief Justice of Nigeria, Justice Dahiru Musdapher, and which the small congregation heartily obliged.

Later in the day I saw in The Guardian the article entitled ‘NJC: Why My Lords Must Fear God’ written by one Emmanuel Ogebe. I concluded after reading it that Justice Musdapher would be in even greater need for prayers if those in a position to advice or influence him have anything like the writer’s mindset. Mr. Ogebe admits very close blood relationship with the retired Justice James Ogebe, JSC. Indeed he has been severally described in print and on-line media without any disclaimer as a son of Justice Ogebe, who by the way remains a respected retired JSC. And the entire one page article was an exercise in bemoaning the fate of the elder Ogebe as the victim of machiavelian schemes which denied him his ‘God given’ right to be either the CJN or PCA. In Mr. Ogebe’s eyes, Justice Salami, PCA and, to a lesser degree, Justice Katsina-Alu, immediate past CJN, were the usurping villains and whose most embarrassing public spat was divine punishment.

In his words: “The history of the matter goes back to 1968. Alu, Salami, Ogebe and Abdulahi (Salami’s predecessor) were all classmates at the Nigerian law school…The 4 musketeers have essentially been together in the profession for over 40 years. Alu was the last to become a high court judge but today is the CJN. How come? There was a distortion in the chain of progression due to tribalistic and religious discrimination in the 80s that repositioned Alu above longer-serving judges to that position…..The plain truth is that Alu supplanted Ogebe early in the judicial trajectory and thus became CJN instead of him. Again when Ogebe would have become PCA, Salami tampered with the order of succession. It may therefore be poetic justice that both justices locked horns in a public fight…Their Lordships have enjoyed an equal time in offices that they ordinarily would not have occupied. The fear of the hand of God should be their foremost preoccupation now. What you sow is what you reap and that is a divine law that my lords cannot overturn.”

This is such a self serving, conjectural and ultimately misleading argument that it beggars belief. How is it, for example, Justice Katsina-Alu’s fault that he overtook his law school class mates (not seniors, mind you) along the way to becoming CJN. The fact of his being the last to be made a high court judge is immaterial. Since he is from the same Benue state as Justice Ogebe why did the alleged ‘tribalistic and religious’ considerations which made him leapfrog his peers not ensure that he got to the Bench earlier? Careers, like indeed life itself, are like a marathon and not a sprint. It is not always those who move the quickest from the starting blocks that go the furthest.

Furthermore, the ‘plot’ by which Katsina-Alu supplanted Ogebe on the route to CJN obviously occurred over two decades ago, more than enough time for either death, health incapacitation, retirement or dismissal or indeed any other factor to have wrecked human permutations if not sanctioned by the Almighty. For example, going by the now very questionable ‘turn-by-turn’ system of assumption of court headship the strict adherence to which Mr. Ogebe predicates his thesis, Justice Muhamadu Uwais would not have been CJN, at least not at the time he did, but for the very untimely death of Justice Nnamani who ranked before him in the Supreme Court pecking order. Mr. Ogebe may do well to appreciate the biblical truth of The Preacher that:

“The race is not to the swift, Nor the battle to the strong, Nor bread to the wise, Nor riches to men of understanding, Nor favour to men of skill; But time and chance happen to them all.” –Ecclesiates 9:10, The Holy Bible (NKJV).

The highest dose of bile in the article was reserved for Justice Salami, PCA. His ‘offence’ was that in 2008 when, upon Justice Onu’s retirement, a slot for the north central zone stood to be filled and as the ranking Court of Appeal Justice (JCA) from the zone was to have been appointed. Instead, he elected to forgo the opportunity and took his chance on being appointed PCA which was due to be filled about 12 months later. This calculation was obviously based on the fact that he was the most senior JCA after the then PCA. Justice Ogebe (JCA, as he then was) who was next to Justice Salami and from the same north central zone was in the event elevated to the Supreme Court. Mr. Ogebe most uncharitably ascribes rather dark motives for Justice Salami’s ultimately successful gambit of waiting for vacancy in the office of PCA which had paved the way for his father’s elevation to the Supreme Court.

In demonising Justice Salami PCA, Mr. Ogebe deployed a range of distorted reasoning supported by rather dodgy if not outright false examples. He contends, essentially, that if not for bad faith Justice Salami had no reason opting for being PCA instead of a promotion to the Supreme Court. However, there are cogent grounds for such preference beyond merely being in a position to make money from award of contracts as insinuated by Mr. Ogebe. In real terms, the PCA in terms of influence and power is second only to the CJN and any honest practising lawyer would tell you that. Since when did it become an offence to aspire for the most influential position available to a man in his chosen career?

The PCA has the prerogative of constituting Election Tribunals. The huge powers inherent in this are self evident when it is borne in mind that those elections in post-1999 Nigeria which are not subjected to judicial scrutiny are the exceptions. Any party who is suspicious of the conduct of any of the Election Tribunals goes to him for redress. For example, with the mounting complaints from all the major parties and sections of PDP in Anambra State that the 2011 Elections Tribunal in the state had been privatized by a very rich and influential PDP chieftain, whose political associates and godsons were routinely obtaining favourable decisions from the tribunal, Salami PCA promptly disbanded and reconstituted the tribunal.

Again, until the NASS recently tinkered with the Electoral Act the Court of Appeal, of which the PCA is the emperor, was the final court for electoral disputes save for the presidential election. Indeed this factor was at the heart of the CJN/PCA controversy. From the records, which were exhaustively and impartially analysed by the NBA Committee on the matter, the PDP/Governor Wamakko’s lead counsel had written to the then PCA Justice Abdulahi to request for a stay of proceedings in the appeal against the decision of the Sokoto State Governorship Election Tribunal which kept his client in the office of Governor. This request was passively granted in the sense that the appeal was kept in limbo as Abdullahi PCA did not constitute any panel of the Court of Appeal to hear it until his retirement. Then enter Justice Salami as PCA who wasted no time in getting all to know that a new sheriff was in town so to speak. He gave heed to the complaints of the Appellant DPP Governorship candidate and caused the appeal to proceed by constituting a panel of his court to hear it to the discomfiture of the PDP and other respondents. Complaints to Katsina-Alu CJN and his meeting with Salami PCA were the consequence of this development and, as the cliché goes, the rest is history.

There is no doubt that what made Justice Salami’s role critical and gave the dispute its tectonic impetus was the fact the case was supposed to terminate in the Court of Appeal. Otherwise, it is a good wager that those who were opposed to his stance, rather than digging their heels and unleashing the present tsunami on the administration of justice, may have waited for the Supreme Court intervention if the judgment did not suit them as they feared.

Even at that the PCA’s power is not significantly less than near absolute in those cases which could go all the way to the Supreme Court. For all the congested Supreme Court docket the vast majority of civil cases which go beyond the High Courts end in the Court of Appeal for a variety of reasons. Indeed because of the long gestation period of cases in the Supreme Court a good number of cases which get to that court are actually resolved based on the Court of Appeal’s decision. This long gestation period could be appreciated from the following example personal to me. I am counsel for a respondent to a Supreme Court appeal concerning a 2001 Court of Appeal judgment, with the record of appeal ready since January 2004 when the appeal was entered. The briefs have long been exchanged and the parties are still expecting a date for hearing of the appeal, that is 71/2 years and counting.

There was also this case where the counsel was convinced that the monetary damages awarded to his client in the Court of Appeal, though in multi million naira terms, were based on wrong principles and substantially less than a fair sum. After two years of the pendency of the appeal (on that and other issues) in the Supreme Court without any clear sight of its determination the 70 years old client instructed the counsel to collect the sum awarded by the Court of Appeal. And the opposing party gladly obliged on the condition that the payment constituted full and final settlement regardless of outcome of the Supreme Court appeal. In all these sight should never be lost of the fact that it is the PCA who posts the JCA’s to the various divisions of the Court of Appeal. And it is well within his remit to move JCA’s across divisions on ad-hoc basis to hear and determine particular cases.

There is no doubt that a jurist who is driven by a sense of justice can hardly find a better pedestal than the PCA office to actualize justice; certainly not as JSC regardless of the rare privilege and exalted status of that office. The point is probably underscored by the well publicised criticism of Justice Uwaifo of his former Supreme Court brethren after they held that the term of office of Governor Peter Obi of Anambra State had not expired; and that it began only from the date he took the oath of office and accordingly sacked Andy Ubah who had purportedly won an election into that office. Justice Uwaifo stated specifically that there was no way he would have decided for Governor Obi’s position if he was still in the Supreme Court.

When, during a discussion at the time, a colleague said that Peter Obi was lucky that Justice Uwaifo had retired from the Supreme Court at the time of his case, I replied that it would not have mattered much in real terms even if he was still in the court. The most that would have happened if he was on the panel which determined the case was a majority rather than the unanimous decision handed down by the court, which would not make any practical difference to the outcome. A JSC who feels strongly about a legal issue or principle and hoping to use a case in the Supreme Court to make an appropriately trenchant statement in that regard must first hope that the CJN puts him or allows him to be part of the panel which decides the case. Secondly, he must then convince at least the majority of his learned brethren on the panel about the strength of his position otherwise which his would be a dissenting judgment, of interest only to legal scholars.

It is noteworthy in the present vein that in comparison with his United States counterpart, the CJN is in a much stronger position when it is borne in mind that with his power to constitute a panel of 5 or 7 from over 15 JSC’s he is well positioned to shape the outcome of a case, supposedly knowing the inclinations and philosophies of each of his brethren. The US Chief Justice has no such powers. All 9 Justices of the US Supreme Court are involved in the hearing and determination of all matters coming before that court.

If Mr. Ogebe was really honest that becoming JSC was entirely preferable to being PCA why then did he pillory Justice Salami for ‘usurping’ the PCA due to his father? The Ogebe clan should instead have been paying homage to Justice Salami for paving the way for their patriach’s assumption of the undoubtedly exalted JSC status. It is instructive that the first couple of PCA’s, Dan Ibekwe and Mamman Nasir, were Supreme Court Justices who ‘stepped down’ to head the Court of Appeal. Then there is the English example of Lord Denning moving from the House of Lords, the then British equivalent of our Supreme Court, down to the Court of Appeal to become head of its civil division as Master of the Rolls. If Mr. Ogebe was unaware of these pieces of legal history then he was not likely to know that, though not in the public domain, the late Clement Akpamgbo, SAN, as with the case of Justice Nnamani and the Obasanjo military government, was apparently offered appointment as JSC when the IBB military government which he served as Attorney-General was departing. He declined the offer. Yet Mr. Ogebe would assert without qualification that there has never been a case of any person declining a Supreme Court appointment in an effort to support his totally misconceived argument.

There is no doubt whatsoever that, in varying degrees, both Justices Katsina-Alu and Salami made some mistakes regarding their open dispute. But then they are only human. And to err is human. It is quite sad that their legacies would be overshadowed by their conflict of which there is no victor but all vanquished, including the judiciary as an institution. For any person to gloat at their fate, as Mr. Ogebe, obviously did smacks of sadism. Making the best out of a bad situation, commentaries on the matter should concentrate on serious interrogation of the system with a view to remedying lapses and forging a more confidence-inducing judiciary. For example, Mr. Ogebe took for granted the ‘turn-by-turn’ system of ascension of headship of the judiciary and its arms without adverting to the various problems inherent in it. Whilst the most senior judge should have a chance, even the best chance, of succeeding the CJ, PCA or CJN, it should not be automatic at all. All who are qualified by the constitutional terms, including eminent practicing lawyers and legal scholars, should be considered and possibly appointed as is the case in the United States.

Similarly, underpinning his article is acceptance of unbridled propagation of the federal character concept as an article of faith in judicial appointments even when it is axiomatic that the practice is not always consistent with merit. Why do we not strike the following fair balance: each of the six geo-political zones to have one mandatory JSC while the remaining slots are filled strictly on merit? And mandatory 2 or 3 appointments for each zone for the Court of Appeal and Federal High Court, with the remaining slots filled strictly on merit.

Futhermore, there is a need to discuss restructuring the Supreme Court in substantial terms. Its docket is too large for a court of ultimate appeal and there may be need to circumscribe the right of appeal to the court. And the number of the Justices may need to be reduced to a number not exceeding 11 when it is borne in mind that the United States Supreme Court has only 9 Justices. In the same vein, if all the JSC’s are to participate in most, if not all, of the expectedly greatly reduced number of cases to the court, the powers of the individual JSC would increase automatically.

Written by Chijioke Okoli, immediate past Chairman, NBA Lagos Branch. Email: orjihnnewi @yahoo.com.

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