‘Nigeria needs deep thinkers in Supreme Court’
Justice Emmanuel Olayinka Ayoola is one of the reputed Justices that shaped Judiciary in Nigeria and Africa. Apart from serving as the chairman of the Independent Corrupt Practices and Other Related Offences Commission (ICPC), between 2005 and 2010, he was until his appointment, the National Human Rights Commission Chairman. The eminent international jurist retired from the Supreme Court on October 27, 2003 having attained the mandatory retirement age of 70. In this interview with MUYIWA ADEYEMI and ROTIMI AGBOLUAJE, the erudite Justice expressed concerns about the huge number of cases at the Supreme Court and its implications on the quality of judgments coming from the Apex Court. He said the country needs deep thinkers in all facets of our national endeavours and tasked for critical reviews of judgments from the courts.
Many Nigerians seem to be confused about the abracadabra that is coming out from Supreme Court judgments in the recent times. What is your take on this?
There are judgments that are good, there are judgements that are bad; there are judgments that are poor and there are judgements that are rich. So, what we have is for each individual to look deeper into those judgments. Most Nigerians are not concerned about some judgments because they did not concern them. For instance, there are very good judgments on cases that relate to property and many others which did not attract the attention of our people. It’s when we talk about judgment relating to people, not to an individual; we must then give ourselves some opportunity of thinking. It’s not going to be individual thoughts; it is different from thoughts of contracts, of sort or things like that but to the reality of the people; whether our thinking is of sufficient strength or whether we are now in the process of weak thinking. I think that’s where we should start. To find out whether we are good thinkers; not just thinker who can’t be bothered whether it is good or bad.
You said some judgments are good and some are bad. People are comparing the Supreme Court judgment in Bayelsa Governorship election to that of Imo State, some people are saying it is like the Supreme Court is playing God?
Every judge plays God. If you are in the High Court, you are God. Are you not God if you are in the Magistrate Court? If you are in the Court of Appeal, three of you are God. If you are in Supreme Court, five or seven people are God. Each person put in the position of authority because they have the power to decide. Even the Magistrate is God because he decides what the judgment is.
Some say they are playing God in the sense that they see Supreme Court as infallible even when they are obviously wrong?
Well, it’s not easy to say they are obviously wrong because in Nigeria, as we speak, there is usually a division. When you go to court for a case involving the people, a group will say they are right, another will say they are wrong. So, if the people who are right are right in terms of the judgment they have, they will be happy with it and if people who are wrong and who think they have been cheated, they say the other party is wrong but where we stand is that we do not have a situation in which A says he is right, B says they are wrong. We don’t have neutral people in Nigeria any more. So, we don’t hear people talking about realities of the situation.
People who are not really concerned but they want to think deep; deep into what they are talking about. That is why in Nigeria now, you do not have critical journals. When I say critical journals, I am talking about legal journals; I am not talking about politics or things like that. We don’t have journals where you can scrutinize the judgment and that is why Nigeria is going poorer and poorer. Whereas in other countries, for a single judgement, they scrutinize that judgement. May be the highest court has given a judgement, people will come together to go deep into those judgments but we don’t have anything of sort in Nigeria now. We have law reports; law reports are reports of things given by the Justice but we don’t have Law reviews, we don’t have places where we can sit down and scrutinize those judgments given, either by the professors, the thinkers; we don’t have such things. That is why as we speak, we have ceased to make our thinking popular. Nobody thinks anymore.
How will you compare the quality of Supreme Court judgments now to the period when the likes of Justices Opute and Kayode Eso were on the bench because Nigerians seem to be losing confidence in the Supreme Court?
Nigerians are losing confidence because there is no collectivity about our thoughts, we all go with individual thinking. For instance, there is no reason why the universities don’t have their journals. There are no reasons why individuals can’t establish journals where they can put the pros and cons together and have their own opinion. We don’t have any opinion in Nigeria about anything anymore. Unless we have journals, legal journals and things like that, we can’t think deep. We are not enriched by thoughts.
You are talking of journals and universities….
The point is, when you are a judge, whether a High Court or the Court of Appeal, or the Supreme Court, you have offloaded yourself, it’s now when I have journals and I go deeper into those stuffs, as Nigerians call it, and if I look at X and say I don’t like that judgment and somebody looks at Y and says I love that judgment, it doesn’t matter, there is no collection of thoughts. If we have collection of thoughts, then we can say, X said this, Y said that, let me think about all that they themselves are thinking about and put everything together. Then as a person who does deep thinking, he will put his own thinking, his own opinion,.
The problem with Nigerians now is that we don’t have, none that I know of, maybe there are, but we don’t rarely have legal journals. The only people who help us occasionally are the press, but Nigerians are too lazy to read clearly what we have in the press may be thought to be very deep for them. We have to build thoughts in journals. If I gave judgment, maybe Supreme Court or anywhere, I feel happy about the judgment and by criticising my judgment, you publicised what I have said that is wrong, or what I have said that is good and that you want to endorse, but we don’t do such. There is no mixture of such anymore. There is individualistic thinking but those individualistic thinking does not go beyond the self.
Should the Supreme Court continue to wear the toga of infallibility and not reviewing its judgment?
The Supreme Court can wear the toga but as a matter of fact, in the past, including when all of us started in the High Court, right to the Supreme Court, we put several thoughts together in judgments because we read wide. So, if you’re going to give a judgement and you can’t find in law report, you go to England, you go to Canada, you go to Australia and you come back with your conclusion. But now, we do not care about those authorities. And then we have to repeat what have been said over and over just within the law report we have.
Don’t you think Nigerians and indeed the society are the end losers from the deficiencies mentioned above?
Well, I think our societies are torn aside about collective thinking. There is individual thinking. You have your own thought. I have my own thought. When we get to collective thinking, hardly can you find thoughts about collective thinking. If I write essays in a magazine, there is no reason why you can’t write something in opposition to my own thinking. If I write what I decide as my own thinking, I will be happy if you write something contrary to that and both thoughts are harmonized. But now we don’t have such. What type of journal do we have? Even let’s leave law alone, how many journals do we have ? When I said how many journals do we have, I’m not challenging but I start thinking deep. Come to think about it; how many journals do we have in Nigeria? Because the newspapers are not supposed to be the journal writers. So, as far as I know, in the newspapers, you challenge us to think and the thinking should be in the journals. If I say Newspaper X and read what they said, I don’t go back to the newspaper. I think to write about what they said and put them in the journals.
As most Nigerians are still trying to distill the Supreme Court judgments on Bayelsa and Imo gubernatorial elections, what would you say?
All these things we are reading about Bayelsa, Imo and Zamfara, when they finished, one would have expected the academicians to put their individual thoughts together and write something about the judgments. How can we now discuss the collectivity of the thoughts we put together? You and I can sit and talk about it and forget it. But the permanence of our thoughts are not there.
I’m asking for your opinion on the Supreme Court judgments on this matter?
Well, it goes from stage to stage. The problem we have in Nigeria , let’s be frank, is something we should try to deal with it. We have overloaded the Supreme Court with many cases. Now if you have numerous cases, how much time do you have for deep thinking? Let me give an instance, when I was in The Gambia, I was in the panel of The Gambia Court of Appeal. We discussed a case and agreed with the judgment so that we can go to court the following day to give our judgment. But when I got home, I started thinking about what we discussed. Initially, I agreed. When I got home, I was thinking deep whether we were right. So, the following morning, I rushed to court with the others. I said I’m not sure whether the decision is correct. I said let’s adjourn it. The other two said no. I said I will write my own judgment. So, I wrote my own judgement. I went there. They gave their judgment; two against one and I forgot about it. But when it got to the Privy Council (because we used to go to the Privy Council then in the colonial days which is the highest court). When the Privy Council took their final decision, they said I was right. They changed the judgment and the judgment was on my side. So, if you have time to think, you won’t have the difficulty we have in Nigeria now, particularly in the Supreme Court, so many cases, no enough time to think, not only to think but to think deeper. And unless we have the Supreme Court that thinks deeper, we are getting to nowhere. And at the end of the day, there is going to be poverty of thoughts and poverty of everything. The society will be worse off.
Your experience in The Gambia is very apt and the dissenting judgement we had in Imo State. How would you compare both?
I love to see the judgment given in the Imo case. First of all, in the Imo case, there are seven judges and one dissented. The same thing happened in a case in which Justice Kayode Eso was the only dissenting Justice out of the seven. So we can have dissenting judgment. In the House of Lords, one has a dissenting judgment out of five or seven. That dissenting judgment in another case, being the valid judgment of the House of Lords. So, we have to think collectively deeper before we can reason and those who are going to do the thinking are the academicians.
In the Bayelsa State governorship election, there was something that never had precedent – the fining of the plaintiff’s counsel to the tune of N60 million all together. What is your take on this development?
None I’m aware of, because previously, the cost is in the Supreme Court, if my recollection is correct, in our days and maybe after, the maximum would be N100,000. You don’t go beyond N100,000. But N10m really is unheard of. Because in other countries, when you are talking about cases and the cost of litigation, you don’t just use your whims. You have to go to another session for you to discuss and find if I’m the plaintiff and I succeeded. I want my judgment, I must put down the fee, how much I spent. You don’t just wake up and say because judgment had been given and award N10m. What is the source of that? Is it punishment? When you are finishing a judgment, you’re thinking about the cost. You are not fining anybody. You just want to know how much even the defendant must state how much. You just wake up and said the cost is N10m. On what basis?
If you are the counsel, would you pay the fine?
I have no choice because I won’t be the judge.
Let’s start with this: I’m the plaintiff. You’re the defendant. Somebody now comes as a judge and said go and pay cost of N10m. Let’s said you’re the plaintiff, he is the judge. If I’m the defendant, he said go and pay N10m, I have no choice because the judge has given an order. It is not a question of argument anymore. He didn’t say what is your cost. He just said that out of the moon, he said go and pay N10m. It’s ridiculous. It’s unheard of. I don’t know what the litigant will do after.
If you’re the litigant, would you pay!
If I’m the litigant, I’ll go back to court and ask how they made it up. Even as we speak, the one in Bayelsa out of the moon they said they should pay a total of N60m. In Imo, they said don’t pay anything. And Imo was even deeper. Now, let us forget the lawyers, let’s forget the litigation. And go about the thinker. What do you think?
As a layman, is it possible for me to go to the High Court to challenge what I consider the injustice of the Supreme Court?
Definitely! Nothing stops anybody from doing that. When you now do that, you’re not go back to the Supreme Court. You are going back to the judges who pronounced it.
But won’t the case still get to the Supreme Court?
By then maybe they have retired. By then maybe their thoughts are deeper. So many things can happen. It would help deepening the process. Speaking for myself; I think it’s ridiculous to ask somebody to go and pay N10m. We are not talking of damages, we are talking of cost. There is a difference between cost and damages. If it is damages, damages within the case, not outside the case. Not cost. For somebody to say go and pay N10m the defendant has not asked for, it looks somehow.
Some politicians would say if you don’t stand in an election, if you have a good lawyer you can have your way in the court and become a governor. What danger does it pose to the society when we begin to ridicule the judgment of the Supreme Court?
The question you posed is very difficult. It’s something we should find disturbing. There are many ways of getting over them. But those paths are not easy to come by. For instance, there is no reason why retired judges should not come together and challenge whatever they think is wrong. Maybe one can come together and embark on such possibility. The problem we have now is money. If we are going to put money aside and straightening up Nigeria,we have to find ways and means of doing such thing. Because if such thing happens, who is going to deal with it. Except of course, some whispers would come . Some may whisper in the background and impose what he or she regards as a reality. For instance, the National Assembly or various Houses of Assembly can do that. They can impose cost; they can set the limit.
While in the bench, have you ever given a judgment and on second thinking, you thought no, you should have done something differently?
In our days, many of us think much deeply before we put pen on paper. Of course, if you start from the High Court, you think deeply. You know that in those days, we did not have the Court of Appeal. You think more deeply and if parties are not satisfied they go to the higher court. You think deeply to start with and when there is superior thinking, you go to the other court. It doesn’t really concern you much after that time.
How does a judge feel when he gives a judgment and it gets to Appeal Court or Supreme Court and it is dismissed by the wave of hands?
Two things can happen. For instance, I did a case as a lawyer in the Customary Court at Ilesa (Osun State). I think it was a Grade B Court. I can’t remember.
Anyway, the appeal went to the High Court, from there to the Supreme Court. At the end of the day, the Supreme Court confirmed the decision of the Customary Court. If the person decides to stop when he’s stopped that is his business. If the person wants to go further, he has the opportunity. If the highest court takes a decision, so be it.
There is no way we won’t talk about your area of interest which is fighting corruption. Looking at the anti-graft agency, with the benefit of hindsight, will you say Nigeria is winning this anti-corruption war or we are on the right path to winning it? Or it’s getting better?
I agree with you that we are talking about the battle. We can’t be talking about the winning. The battle is here. It may be getting better but winning it is in continuity.
Will you say the level of corruption has reduced in Nigeria?
I think it has reduced considerably. The lower level is not as corrupt as they used to be.
What of the upper level?
The upper level may be there. The upper level we are talking about may be the highest possible level. The reason is that even as we speak there is so much poverty at all levels that corruption is not easy to target any more. It is different from the situation in which there is so much money that people can pick up. Nobody is wealthy. Now, there is no more wealth. Take as an example, in several places, there are more buildings for sale but nobody buys. Wealth has gone.