Elections

Q: How has it been presiding over the Court of Appeal?

A: Very challenging. The court, being the second highest in the land, has a constitutional responsibility to oversee cases and appeals from all the courts below our level- State High Courts, Federal High Courts, Customary Courts of Appeal and Sharia Courts of Appeal. So you can see the huge outlets of activities; taking appeals from all of these courts are major assignments.

Q: What is your assessment of the judiciary at all of these levels you have mentioned, especially in recent times?

A: The judiciary is a human institution and no human institution is 100 per cent perfect. Human beings are the ones operating the system. So, some of them may be very bright, some very hardworking while some are just half way. To be fair to the judiciary, we have set up machinery for screening people before they get to the High Court because the High Court Bench feeds the Courts of Appeal, just as the Courts of Appeal feed the Supreme Court. So, you have these outlets out there and you just have to do your best to have the best materials at every level in these outlets, as it allows for a good standard. So far, we have been trying to achieve that objective. But as I said, in every human institution, there is bound to be one or two shortcomings. Those shortcomings also exist in the judiciary. Assessing the performance of the judiciary generally,

I think the Nigerian judiciary has performed very well, given the circumstances, environment and the attitude of the people. Largely, there is a lack of understanding of the processes we use. And of course, if you are ignorant of something, you tend to form your own opinion whether it conforms with the reality of the situation on ground. In all, people are entitled to their opinion. In my own humble view, I think we have done well so far. tn-cover-oct-06.jpg

Q: Is there no way the judiciary can promote public awareness in some of these issues that the public tends to misunderstand? A: Our work does not permit the judges to get involved in this kind of thing because we don’t want to join issues with people. We just want to be left alone to concentrate on doing our job. Of recent, yes, we saw the need to establish some kind of Public Relations department that can explain some of these things because it is made up of insiders, who will know the operations of the system and the difficulties. I think the creation of this department is very necessary in view of the recent happenings in the judiciary. So, in each of our courts now, there is a PR department. For example, I have a PR officer in this court. I believe the Supreme Court also has at the federal level. I believe it’s the same thing at the state level, too. They interact with the people and try to explain some grey areas of our work to the public. The PR department not only needs to be established, it also needs to be strengthened.

Q: There have been many criticisms of the election petitions tribunals sitting across the country. As the person saddled with setting up of these tribunals, are you satisfied with their performance?

A: As the President of the Court of Appeal, it will be very difficult for me to assess the performance of these tribunals. I have been given this constitutional responsibility to establish them. It is not my own making and it is the Constitution that gave me that power. I try as much as possible to make sure I get the best materials because the judges who do this work are not under me. I don’t know them, so I rely on the Chief Judges to give me a list of judges they think are credible. Now, I went a step further to collect the nomination from all the states. I tabulate them and what I do is to send the names of the judges nominated from each state to the Nigerian Bar Association, NBA, of that state to comment on their character. The NBA knows them because its members practise before them. I don’t know them. Based on the recommendations of the NBA and also some justices of the Appeal Court that serve in those areas, I then select those I think will be able to serve on these tribunals. Another thing I do is that I don’t send a judge to his own state or any state close to his state. I send them somewhere far away. So if you are the chairman and you are from Lagos, for example, other members will come from Rivers, Borno, Benue or Sokoto. That is how we form the panels. Let us also appreciate that even though these judges have been dealing with cases, election petitions have peculiar proceedings because there is a lot of politics involved. And so, they have to be given special treatment. Don’t forget that the panel members are like five strange fellows coming from different parts of the country and probably meeting for the first time. But they have to sit and work together. So far, so good. They have done very well. I had problems in a few areas. In fact, I had to pull out one justice from a panel due to personal disagreement. But so far, we have moved on.

To expedite proceedings, I try this time around to introduce a new system – frontloading– into dealing with the petitions. I drafted a practice direction, which the tribunals are using for the first time. There have been some criticisms here and there; I admit that in every human endeavour, there are bound to be imperfections. The good thing is that we are testing this procedure for the first time. I think it has produced good results. Next time, we shall fine-tune it and I think it will work much better.

One way I think we have to also deal with election petitions is that the National Assembly has to come out with special rules that will govern the proceedings. To say that the tribunal should use Federal High Court rules and some other laws for the proceedings of election tribunal is too cumbersome. Most of the tribunal judges are from the State High Courts; only very few are from Federal High Courts. These judges are not used to the Federal High Court rules. They are used to the rules of their various states. So, for them to be given new rules at the tribunals is a little bit untidy. I think the National Assembly should come up with specific rules for the tribunals to use when dealing with election petition cases.

Q: Are you thinking of forwarding a paper to the National Assembly on this observation so that we will not have hearing of petitions going on for more than one year as we are having now? A: Almost all of the people in the National Assembly have been affected positively or negatively by the proceedings, so they should know where the shoe pinches. After all, they drafted the Electoral Act and passed it into law. Having done that, I don’t think they will have any difficulty making the rules that will guide the proceedings better because they have also experienced the process.

Q: How about sending a memo to the Electoral Review Committee? A: In fact, I am meeting with them tomorrow (last Thursday).

Q: Given the problems that the Election Petitions Tribunals have grappled with, as you have enumerated, would you say you are satisfied with their performances so far? A: Satisfied? Yes, because I know that members of the tribunals have gone through a lot of problems. Don’t forget that these judges are serving in states where they probably were visiting for the first time. Issues of accommodation and security are of very paramount importance when judges are made to handle election petition cases, which usually are very volatile. Some states are willing to assist in various ways, but in some states, you have to provide virtually everything. The tribunals have to get their own staff because they can’t afford to expose the proceedings to everybody. But we do use one or two local staff, just for convenience and to help the work of the tribunal. Remember that when they go to the different states for these assignments, they leave their families behind, leave their courts. Once in a while, you have to give them time off to go and see their families and so on. Travelling from one end of the country to another is not easy. Putting all these together, I think they have done very well.

The number of petitions they have dealt with is a testimony that they have done well. In 2003, we had a total number of 570 petitions. But in 2007, we had a total of 1,475 petitions. This is double the number of petitions in 2003. By the middle of August, almost all the petitions had been concluded. I hope you also know that every loser in an election is a petitioner. And petitions lost at the tribunal are moved to the appeal tribunal. So we have equal number, sometimes even higher number of appeals than what took place at the lower tribunal because in one suit, you may have two to three appeals owing to cross-appeal and all that. This is what is happening. We understand and we appreciate the anxiety of the people. We try not to keep these cases for so long. But there are a few sensitive appeals still pending.

Q: Why are they pending, why taking so long?

A: I like this question. You see, it is natural that when the lower tribunals conclude their cases and deliver judgment, one of the parties that lost will appeal.

Then, there will be a process of compiling record of the proceedings and some of them can be very bulky. Imagine the number of exhibits which are always attached. The registrar will work very hard to compile these records that the Court of Appeal will use in determining the merits of the appeal. After compiling the records, counsel to the parties will have to take a look at the records and certify that this is the true representation of proceedings at the tribunal.

That is the time it will now be formally filed in the registry. That is the time that appeal is entered. From that date, counsel to the appellant will, within 60 days, file his brief of arguments. After that, the counsel to the respondent will, within 45 days, reply. After that, the appellant will have 15 days to also reply. So, it is time- consuming. To file records before the court may take two months, then filing of briefs, from the calculation I made now, will take about four months, before all the papers will be in. In between, there are several motions to be heard and disposed of before the appeal is heard. These are the things that people don’t know. They just believe we are delaying the sitting of the tribunals because what they are interested in is the judgment. But they don’t know that we have to follow our own rules and procedure; we cannot go against the rules. If we do that, one of the parties will be affected.

Q: You spoke of assistance coming from state governments to the election petitions tribunals. Is there a ceiling to this assistance? A: I am a member of the Board of Governance of the National Judicial Institute, NJI, where all the Chief Judges meet. When there are tribunals in the states, we appeal to Chief Judges to assist when the judges for the tribunals get to their states. They are their colleagues. In fact, the Chief Judges have also recommended their judges for the same assignment in other states.

So, the appeal is not to the government, but to the state judiciary to provide assistance. For instance, if the Chief Judge has a guest house, we expect that it should be made available to judges serving on the election tribunals. If no guest house is available and I am informed, I will look for a hotel for the members of the tribunal and pay for it. They also help us with the local staff that will help our staff at the tribunal in the day-to-day operation of the tribunals. These include bailiffs to serve court processes. We are not concerned with state governments, but with the judiciary.

Q: But are you thinking of ways to reduce the processes that make the period of resolving election petitions so long? Can the process be abridged? A: There is the possibility. Even in our rules, you can abridge time. But in doing this, all the parties must agree. Because you cannot say out of 60, I will give you only 25 days without the consent of the parties concerned. There must be the cooperation of counsel of the parties concerned, otherwise the counsel can insist on the constitutional provision, which is 60 days for filing of papers.

Q: We have also heard instances of some former or retired judges putting pressure on members of these tribunals…

A: Don’t forget that we are human beings. I have discussed the human element part of these tribunal proceedings earlier. There is temptation to always approach these ex-judges to talk to members of the tribunals for one favour or the other. If they don’t take a strong position, they may fall into this temptation. They know it is wrong to do so.

What I expect these ex- judges to say is: ‘Look, I have done this job before; I never did this thing when I was in active service. Go and tell your lawyer what to do if you know you have a good case.’ I expect a respectable retired judge to talk this way, not saying: ‘Okay, I will see what I can do.’ From this what you can do, a lot of evil will follow. In most cases, the tribunal judges might not even be aware of what is going on. Don’t also forget that the National Judicial Council, NJC, will always sit to look at the merit or otherwise of every case. So, every judge found wanting would be flushed out. It is in the interest of any judge who is tired of the job to voluntarily retire than wait to be flushed out.

Q: Have you had cases where people petition you that so and so tribunal is not fair or this particular judge is found wanting in this particular case?

A: There are quite a number of petitions. But the problem is that in most of the petitions, what you see are general complaints. And if you say you are going to ask judges to respond to the petitions against them while they are still working, you will be dividing their attention. Which one will they do–to start answering queries or to concentrate on the job given to them? In any case, anybody who loses has a right of appeal.

I suggest that it is better to appeal than resorting to writing petitions. This is one of the areas we have to address properly in this country. Administration of justice is not just the work of the judicial officers. It involves other segments of the legal profession- the Bench, Bar and even the parties themselves. If the Bench will do its work in accordance with the law and oath of office of the judges, members of the Bar are supposed to assist the court to do justice. But they abandon their responsibilities and become part of the problems. Of course, the problems will remain.

It is also very disheartening that rather than present the merit of their cases, some parties will start looking for connection to the judges. All these things hamper the growth of the judiciary. In my view, the remuneration for judges has been enhanced. So, any judge who does not want to live within the this enhanced pay should find his way out voluntarily before he is flushed out compulsorily. Also, any member of the Bar that will resort to filing petitions against judges because he lost a case should go back to school to learn more about the ethics. I am happy NBA is organising some re-training programmes. I hope members of the Bar will appreciate their position as officers of the court and do what is right rather than abandoning their responsibilities and start aligning with their political clients, who give them money to start writing petitions against judges. Sometimes, you won’t see any merit in the petition, very insulting petitions.

Q: Are you saying there is no merit in the petitions? A: I am a member of the NJC and we received about 20 petitions against judges from the tribunals and none of them was substantiated. It is making the whole thing look bad, but it is not.

Q: Could it be lawyers that write the petitions? A: If you read the language, you will know it must be lawyers that wrote them because you see them citing cases.

Q: Are you saying the petitions are not supported whatsoever with evidence to prove the allegations they contained? A: They have no evidence. They just say they don’t agree with this judgment and that. It is very sickening.

Q: You said the judiciary has done very well. But are you concerned about the perception of the Appeal Court, with some people even going as far as describing it as the black sheep of Nigerian judiciary. In the run-up to the 2007 elections, for example, many decisions of the Appeal Court were overturned at the Supreme Court…

A: I am concerned because this is my constituency. But it is the opinion of those saying whatever they are saying. I cannot stop them. Let’s put elections aside. If you go to any division of the Court of Appeal today, take a look at what they have on their daily list. It is amazing. Sometimes, their list is just like that of the Magistrate Court. That shouldn’t happen, but this is because of the number of appeals coming to the court. But elections being what they are, there are personal interests and everybody wants to win. If he doesn’t win, then he must find somebody to put the blame on. And this is where these things are coming in those election matters and anybody who lost will be a potential petition writer or a commentator that will damage the image of the Court of Appeal because he didn’t win. But people should read our judgments, which are always supported by reasoning, before making comments.

Each judgment you read is supported by reasoning on why and how we arrived at that conclusion, but people don’t even bother to read the judgments, check the reasoning and the conclusion. But they just want to attack and say this is perversion, I have been denied my right. Read the judgment first, even if you don’t agree with it. And in any case, we are human beings who can make mistakes. But people also need to accept that there is a limit to the fight to occupy positions and even if they don’t get it this time, they can make it the next time.

Q: The new NBA President, Rotimi Akeredolu, recently said in a newspaper interview that you have not discharged your responsibility properly in constituting the tribunals?

A: Well, I have never been involved in controversies in my life and I want to leave it so. I don’t want to join issues with anybody. But what he must have said is his opinion.

Q: Is there a possibility of a review of the judgments by the tribunals after they must have disposed of the petitions?

A: No. The constitution is very clear about this.

Q: Not a review to punish erring judges or reverse the judgments? Won’t that, in the future, help to avert the contradictions we have seen in some judgments like those in Sokoto and Kebbi where the cases appear similar but different judgments?

A: What is wrong with Kebbi and Sokoto? Have you read the judgments? Go and read the judgments. There is reasoning behind these judgments. You don’t criticise a judgment until you read the reasoning. Those criticising the judgments have not read the reasoning. They just assume and it is not fair. They are so eager to criticise and condemn. These judgments are public documents after they have been delivered. They are no longer secret documents. In fact, Gani Fawehinmi publishes all of them. So if you buy one copy of Gani’s law report, you can get a collection of these judgments. If you can read, even without being a lawyer, you will be able to get to the point of what has been said. But people don’t read at all. We really need to encourage reading in this country. Though we appreciate criticism, people should endeavour to make it constructive. You don’t have to insult the judges because you don’t agree with the judgment.

Q: What steps are you taking to address this habit of judges not immediately making certified copies of judgments available? This is believed to be aimed at thwarting the effort of the appellant?

A: I don’t think that is true. Most of these judgments, when they are being delivered, usually leave those like the governors’ till the last day. And when they deliver them, they go home and leave copies with the secretary, who is supposed to reproduce for the parties.

Q: Would you have loved that you were not saddled with these election petitions because of the controversies?

A: No. I have been into those for long. I am not bothered at all. I do the best I can. Sometimes when a division is overloaded with work, I appoint a special panel to go and assist those on the ground to speed up the process and clear up the cases. What we do at the tribunal and because of the importance of the governorship cases, for example, I always make sure that I don’t leave it to a panel where they come from because there could be pressure on them because they live there. So, I take some people from other divisions and they go there as a team. If they like, they can write their judgment there, otherwise they can adjourn, hold their conference somewhere else and decide on the appeal.

Q: Can you tell us some of the trickiest cases you have handled in the course of your career? A: I have been a judge as far back as 1977. I was at the High Court and I handled both civil and criminal cases. To me, every case is important because the interest of somebody is at stake and you must not joke with it. At the Court of Appeal, we normally sit in a panel and the judgment is not just your own. You hold conference with your colleagues where everybody will come up with his/her own idea, before you decide how the appeal should go. So, one cannot say here that this is my judgment. It is the judgment of the court. It is at the High Court that judges sit alone and decide the cases on their own.

Q: If you come back to the world again, would you want to be a judge? A: I came from a judicial family. It is the greatest thing in my life. My parents and great grandparents were all judges.

Q: And your children? A: For now, I have three lawyers

Q: Considering the load on the Appeal Court, would you advocate the creation of more divisions?

A: I am already in the process of creating more divisions. This year, I have about three. In next year’s budget, I’ve proposed Makurdi, Borno, Adamawa and perhaps Katsina or Kano. The court is growing. That is why you find that the coordination of some of these issues can be very tricky. I can understand if you talk of some conflicting judgments at the Court of Appeal. They are understandable because many cases arise in a particular division. You must understand the perception. There are not two cases that are really the same. Though they call it conflicting, the truth is also that they didn’t bother to read the reasoning behind the judgment and they will just say: why give different judgments? But we have taken steps. I regularly meet with the presiding justices to discuss these issues. What we normally do, if any major issue has been decided at any particular division, the judgment should be circulated to all other divisions.

Q: Apart from the work load, what are the other problems confronting the Appeal Court?

A: Generally, in the Federal Judiciary, we don’t have much problems with funding. One has to be honest. The problems are in the states, simply because the governors there have refused to implement a section of the Constitution that enjoins them to hand over any amount appropriated to the judiciary for its operations. So, the judiciary is crippled. In the judiciary at the federal level, we have a long process of screening people coming in, but sometimes, there can be mistakes here and there. But there are also mechanisms set in place to correct these errors. Infrastructure wise, we are trying our best. In Calabar, we have a new complex being developed and we hope to finish it next year. The building that would serve as the headquarters is already in place and by October, we will move over. In Jos, we are also doing the same thing. We have virtually a new complex in Port Harcourt and many other places.

Q: When do we expect to have the pending appeals disposed of?

A: All the 1,475 petitions are being disposed of, but at the level of appeal, some retries have been ordered. I have already set up panels for these. We are doing our best and the panel will start sitting this week, and immediately after Sallah, it will be full blown.

Q: Any specific time frame?

A: Well, you will also need to consider the performances of the counsel to the parties. If they are up to it and their motions are disposed of without them coming up with more motions, the appeals will be taken quickly. Normally, we reserve judgment for a week or two. We on our own don’t take too long.

Q: Does it disturb you that some governors stay for up to two years before their elections are nullified, maybe on grounds of electoral malpractices and after a fresh election, they win a fresh term of four years ?

A: I don’t know. It is the system that allows it. I think the classical case is the Obi case in Anambra and the Supreme Court has decided on it. And as the highest court in the land, we have to follow its decision.