Uwais insists: No automatic lift of states’ Chief Judges, SANs to Supreme Court Bench

Hon. Justice Mohammadu Lawal Uwais was the Chief Justice of Nigeria (CJN) between 1995 and 2006. Eleven years in retirement, he remains a visible advocate of peace, respect for the rule of law and good governance, and has lent his voice severally when occasions demanded. This interview with IBE UWALEKE, is one of such occasions in which he gives rare insights into his life’s experiences pertaining to wide range of issues in the nation’s judiciary, including the issue whether states’ chief judges as helmsmen of the judiciary in their various states and indeed, senior advocates of Nigeria (SANs), should be granted automatic appointment to the apex Court’s Bench. His answer to this question is capital NO! Excerpts:

A lot of Justices of the Supreme Court have been clamoring for interlocutory appeals to stop at the Court of Appeal instead of proceeding to the Supreme Court, considering the enormous workload at the apex court. Do you think this is expedient?

That is an old issue but it’s still on. You know the view of the Supreme Court while we were there was that in­terlocutory appeals should not come to the Supreme Court. We didn’t succeed in getting that. Part of the reason is that leading practising lawyers then felt that they would be out of work if that happened. So, they were not in support and they rallied round members of the Constituents Assembly who were supposed to amend the constitution at the time for support. After that, there was also another Constituents Assembly that was chaired by Justice Karibi Whyte, which was about 1994 or so. Again, we followed the same procedure; submitted a memorandum, again it was defeated.

When Justice Niki Tobi had his own around 1998, we also raised the same issue. I quite agree that if you take away interlocutory appeals, the workload of the Supreme Court will be substantially reduced. But I think we even need to go beyond that. If you look at the law as it was when the Court of Appeal was created in 1976, certain cases were limited to the Court of Appeal. What I mean by that is that final decisions in such cases remain with the Court of Appeal. For instance, the issue of marriage; if you get to the High Court and then you want to appeal and you get to the Court of Appeal, after that whatever the appellate court decided was final.

Part of the problem is that you are required to ask for leave from the Supreme Court if you want to appeal on points of fact. And if you want to appeal on points of law, you don’t need any leave. And it’s easier for the lawyer because, cleverly they would join points of fact with the points of law. He knows the point of law would not succeed, but he wants the court to hear questions of fact. So, when the lawyer does the two you can’t deny him right of appeal. And when he comes to the Supreme Court, he might even abandon the point of law and then argue the fact. That is part of the problem and there is need to look into that as well.

Are you of the opinion that interlocutory appeals should terminate at the Court of Appeal?

Oh, yes. I have told you. During Justice Aniagolu Constituents Assembly, we made representation. I was part of that representation.

What is your perspective on the call for Senior Advocates of Nigeria (SANs) to be appointed to the Supreme Court Bench?

Well, I belong to the old school. It was during my time as CJN that we said no, Senior Advocates of Nigeria, who want to come to the Bench should start from the level of the High Court or at best at the level of the Court of Appeal. That was the policy when I was a member of the National Judicial Council (NJC), and I still remain with that view.

Why do you think senior lawyers should not be appointed straight to the apex court?

Part of the problem is not just the ability of the judge you want. There is the issue of integrity. If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered. From your judgments also, the Court of Appeal would have known how good you are if you are at the High Court. But if you are a legal practitioner, you haven’t written any judgment. So, there is no way you can be assessed in that respect.

Again you are not under supervision of anybody when it comes to integrity and those are the two points why we felt, anybody who is at the Bar who wants to go to the Supreme Court bench should start from the lower Bench.

But Hon. Justice Augustine Nnamani was appointed same day with you to the Supreme Court and he was good. He came straight from the Bar. What do you have to say about that?

For Justice Nnamani and Elias who were appointed to the Supreme Court, they made good judges. In the case of Justice Elias, what happened was that Sir. Adetokunbo Ademola who was then Chief Justice, was to retire and General Yakubu Gowon was the Head of State. Elias was his Attorney General. General Gowon, I know and a lot of people who knew this would confirm it, looked around for a successor to Sir. Adetokunbo Ademola but it wasn’t easy to get someone. There was a particular Chief Judge (name with­held) who is now late, that Gowon wanted to appoint the Chief Justice.

But before he became a Chief Judge, he was Chief Registrar of the Supreme Court. Some of the judges of the Supreme Court to whom he was Chief Registrar were still there. How then can you bring him above the Judges of the Supreme Court?

The Chief Judge knew it was not going to work. So, he turned the proposal down. Gowon in the end, extended the tenure of Sir. Ademola by two years but had to pass a decree to enable them to do that. When Ademola was to go, Gowon said, ‘Elias, you are good enough to be the Chief Justice.’ That was how that one happened.

That of Nnamani, it’s true he was Attorney General to General Obasanjo’s regime at that time. He practiced law in the East. Obasanjo decided to nominate him to become Justice of the Supreme Court, which was alright. Like I said earlier, when it comes to appointment from the Bar to the Bench, the issue is not whether the fellow is capable of doing the work, but it is the assessment of his integrity. Nnamani was in the government; at least it was possible for the authorities then to assess his integrity. But had it been he wasn’t Attorney General, there is a difference between somebody who is Attorney General who is working in the system and somebody who is outside the system completely.

Are there no other parameters that could be used to ascertain a lawyer’s integrity before he is appointed to the Supreme Court?

What I am saying is about monitoring a lawyer at close quarters. A lawyer is at large. He has his clients and he works for them. But if he is a judge, he is within the system. There are ways and means of knowing how he is getting on. That is the difference.

There is this controversy as to whether lawyers should investigate the legitimacy of potential clients’ source of income before accepting briefs from them. What is your take on that?

The system is that if you have a case and you want a particular lawyer to appear in court for you, you go to the lawyer and tell him that this is the case. Either you are a plaintiff or you have been sued and the lawyer would go to the court to defend you.

The lawyer usually looks at the nature of the case; what is involved, money claimed, how long it would take and then he charges you. He doesn’t look at whether you are rich or poor; it is the amount of work he is going to do that determines how much he would ask you to pay. It is not the business of the lawyer to find out the legitimacy of his client’s source of income.

It’s not his business how and where you are going to get the money. If I want to buy your paper for instance, would you ask how I got my money before you sell?

When Nasarawa state was newly created, the President of the Customary Court of Appeal wanted to be Chief Judge but you insisted that the most senior judge from the High Court should be the state’s Chief Judge. What was your reason?

The two courts are different. You have the High Court and the Customary Court of Appeal. When it comes to volume of work in terms of jurisdiction, the jurisdiction of the High Court is heavier than that of the Customary Court of Appeal.

The Customary Court of Appeal is concerned with marriage, chieftaincy, things that are akin to customs. Whereas the High Court has jurisdiction that covers almost everything except that which is allocated to the Customary Court of Appeal and the Sharia Court of Appeal.

Then the Chief Judge is the Chairman of the Judicial Service Commission of the state. Of course, the President of the Customary Court is a member and the Grand Kadi is also a member of the state Judicial Service Commission. The two courts are separate but it is very clear that the leadership is with the High Court.

The reason why persons in the Customary Court of Appeal want to be Chief Judge is because when they leave the High Court to head Customary Court of Appeal, they see themselves as equal to the Chief Judge. But if they should go back to the High Court, they won’t be at the level of the Chief Judge, they would be lower. If you want to determine the seniority of two judges, it does not arise. You determine the seniority in the hierarchy of courts and the High Court is clearly higher.

So, in the Nasarawa case, it is on that basis, I took the view that the Chief Judge was to come from amongst judges of the High Court; not for the President of the Customary Court to just cross over and become the Chief Judge. That was the policy and that is still my view.

In the past, Chief Judges were appointed directly to the Supreme Court, is it still happening now?

I stopped the practice when I was Chief Justice. Chief Judges were appointed to the Supreme Court in the past because there was no Court of Appeal. All judges of the Supreme Court at that time were Chief Judges of states. But when the Court of Appeal was created we had Chief Judges going to the Court of Appeal as Justices of the Court of Appeal. Now, how can you ignore any Chief Judge that is in the Court of Appeal and prefer somebody in the High Court?

That is the post the judge at the Appeal Court abandoned to come to the Court of Appeal, then you take someone from that level and elevate him above a former Chief Judge who is a member of the Court of Appeal? It doesn’t make sense. I think it goes against the grain. And again, even the law creating the Court of Appeal says the justice of the Court of Appeal should have precedence over the Chief Judge of a state. You can see that judgments by the President of the Court of Appeal come before justices of the Supreme Court and they can overrule him. Same way the judgments by the Chief Judge of a State High Court would come to the Court of Appeal and the Justices of the Appeal Court can overrule him. But
I understand that has been changed now. I say this with authority because I received a letter asking for my view on some candidates who want to be appointed to the Supreme Court. Chief Judges can now come to the Supreme Court. Senior Advocates of Nigeria can now come to the Supreme Court. But I still maintain my view.

Justices of the Supreme Court used to be referred to as Federal Judges. How did this change?

In the past, we had the Federal Supreme Court; this was after we became a federation. There was a time when we had the unified service. It was one Nigerian Civil Service. But with the creation of regions, each region had its own civil service, its own courts and judges. The federal also had the Federal Supreme Court. Cases from the regional High Courts were going on appeal to the Federal Supreme Court and from there to West African Court of Appeal (WACA) and then to the Privy Council. The membership of the Federal Supreme Court was about seven.

The Chief Judges of the regions: the Western, Northern and Eastern regions were part of it. Chief Judges of those regions were by the virtue of their being Chief Judges also considered as judges of the Supreme Court. So, the Chief Justice of Nigeria then had the discretion in constituting a panel that would do a case to coopt the Chief Judge of a region to participate. It was not full time but for that particular case, he would be one of the judges of the Supreme Court that would hear the case. That was the practice in those days.

Previously, Chief Judges of states were also addressed as Chief Justices, at what point did the terminology change?

General Obasanjo as a military Head of State in 1976 changed that. It was then decided that when you say Chief Justice, it was confusing and that there should be just one Chief Justice of Nigeria, and others should be called Chief Judges.

Who are Pusine Judges? The title is no longer heard of these days.

Ah, that was in the colonial days. They were ordinary High Court judges. Pusine is a French word, but I don’t remember now the origin. When Nigeria attained independence, the word pusine disappeared.

The Supreme Court used to go on assizes, why was it stopped?

It’s true the court was going round, but we had only four regions in those days; so, it was easier. But with the creation of more states, suddenly we found states demanding that the Supreme Court should come to them. I remember very well, Plateau State made the request; I think Rivers State also made the request and other states. Then the question was if you concede to go to Port-Harcourt and Jos, if Imo says you should come or Ondo says you should come or any other state, would you be justified in saying no? So, it became political. If you look at other places like the United States for instance, the Supreme Court does not go anywhere. It remains in Washington. So, that is one reason.

Another reason is that it is true that when the court sits in the regional headquarters, it has come closer to the people. But in reality it is not helpful because in complicated cases the court can’t give judgment when it sits at a place. It only comes and hears arguments of counsel then it adjourns to a future date for judgment and it would then have to move back to Lagos and hold conference there and write the judgment.

In the end, the court doesn’t come out just to deliver judgment; parties still have to go to where the court was, and in those days it was Lagos. So, people felt alright, you go out and they see you. What else did you achieve because the parties still had to come where you were for judgment?

Those two factors were considered and the decision was taken that the time had come when the Supreme Court should remain static, and should not move around as it used to be.

What is your opinion on some of the conflicting judgments that emanated from the Court of Appeal in the wake of the election petition appeals from the 2015 general elections?

The conflicting judgments came about because the Court of Appeal created more divisions. When the court was created in 1976, there were only five divisions: Lagos, Kaduna, Enugu, Ibadan and Benin. The system then was that when you deliver judgment, you make photocopies and send to those divisions so that the judges there would know what position you have taken on a given issue. It was much easier but then the Court of Appeal decided to increase the number of the divisions. I think today they are up to 15 divisions or more.

You can imagine the workload of a judge, and then he has to read the judgments from 15 or 16 other divisions. Even then with five divisions, it wasn’t quite working. The divisions were not even able to produce all the judgments they had delivered to circulate. And if it is to make it available at the headquarters, it was not easy.

What then is the solution?

If you are talking of solution to conflicting judgments, then one of the solutions is to go back to what it used to be. Reduce the number of divisions.

What about the suggestion that the Appeal Court website should be made more active?

What time does a judge have to read judgments online? Even if it is the hard copy of a judgment that you have, you must have time to read it and digest it to know what the reason or argument is. Maybe it is better if it is on the computer. You can save it and read it when you are freer. I don’t envy the judges. It is not an easy job. You sit in court, you write judgments then you have to read judgments delivered all over. It is not easy. Because of the likelihood of pressure, that aspect might be ignored.

In the Supreme Court, we have a system of sitting in panels. What I used to do is I divided the year into three terms: from September when we resumed from the long vacation up to December was one term. Then we have another term from December to Easter time. The third term used to be from Easter to July when we go on vacation.

I used to constitute the panel. Panel A would remain together during the first term and there would be Panel B and Panel C. When we get to the second term, I would switch the membership. Judges who were in Panel A, some would move to B and C to A. The reason that was being done was that if you delivered judgment in the first term, when it comes to the second term, and a similar case comes up, and you think your reasoning will be different, then somebody would have known what happened previously and he would warn the others. If they were going to give a conflicting judgment, they would have had a way around it. And if they give the conflicting judgment, what used to happen is that the court would be asked in another case to depart from its previous decisions, and when that happens it means there are two cases that may involve conflicting decisions. So, whoever is presiding in Panel A would alert the Chief Justice, and then the Chief Justice can call a meeting of all the justices to discuss that issue before the second conflict comes.

Now, the panel that is sitting need not agree with the whole house, but the house would have indicated what is the view of the majority on that issue; whether they agree if the previous decision is right or wrong, and that would guide the panel that is sitting. But all the justices would have had the idea that on this issue there is likelihood of conflicting judgments. So, it is easy for the Supreme Court because we are all together, but at the Court of Appeal where the justices are scattered, it’s not easy.