What appellate court did in Oyo is abdication of judicial responsibility —NBA chairman
Chairman, Nigerian Bar Association (NBA), Ibadan Branch, Dr Oluwole Akintayo, speaks with Deputy Editor, DAPO FALADE, on the controversies generated by the recent judgment on the presidential election and the governorship election in Oyo State and other sundry issues.
Recent development in the polity does not portray the Law as being on the side of the people, especially given the controversies that surrounded the qualifications of President Muhammadu Buhari for the last presidential election as well as the judgment of the Supreme Court on the election. What is your take on this?
Before the Supreme Court handed down its decision on the case filed by the Peoples Democratic Party (PDP) and its presidential candidate, Alhaji Atiku Abubakar, against the Independent National Electoral Commission (INEC) and President Muhammadu Buhari, the Court of Appeal, sitting as the Presidential Election Petition Tribunal, had handed down its judgment, based on the case presented by the petitioners and later appellants. Personally, I have not read the judgment of the Supreme Court, but from the little that we gathered from newspapers’ reports, the Supreme Court came to the conclusion that the PDP and its candidate did not prove their case.
The first thing that we should ask is that if the INEC does its work very well, should there be a recourse to election petitions tribunal to determine whether elections have been conducted in line with the Electoral Law? I am looking forward to a Nigeria where the election umpire, right from the beginning, would put in place templates and rules and it will be evident that the election would be a reflection of the will of the people. The court will only decide based on the matter placed before it, based on the evidence presented, based on the law and how it interprets the law. A time, as citizens, we would be expecting the law to be interpreted in a particular way, but the court will see it in another light.
The controversy which the decision of the Supreme Court has generated relates to the issue of claims. If someone claims to have a particular qualification, should that claim not be verified? If the claim should be verified, what type of verification do we accept? If someone claims to have a certificate, we expect that that certificate should be presented. But if you look at the Nigerian Constitution, it provides that whoever wants to be president only needs to have School Certificate. It goes further to define what School Certificate is, including attendance of secondary school. In fact, you will find some laughable interpretations like Primary School Certificate and service in the public or private sector for a period of 10 years; Primary School Certificate and possession of qualification that the INEC adjudges to be equivalent. Right from the time when that particular provision was couched, it would appear as if the drafters of the Nigerian Constitution did not mean well for Nigeria. So, the court will only accept that interpretation which it believes would do justice in the light of the situation.
Atiku lost at the Appeal Tribunal, but he must have been goaded by his lawyers to go to the Supreme Court. Is that his lawyers did not have enough facts or that lawyers generally are just out there to make money out of their clients who are ignorant of the law, as being insinuated?
Well, one thing is that if there is provision to ventilate one’s grievance in court and the court process also makes provision for one to exercise right of appeal, it is something that gives hope to any litigant that you have a right of appeal. We have had instances where cases have been lost, even twice, and the final court will judgment in favour of the person. No one ever believe that a governor could have a term which will start from the day of his swearing in until Peter Obi [former governor of Anambra State] decided to explore the rights of appeal that the constitution gave him. So, it is a way of telling us to keep hopes alive by testing the judgment of the lower court in an appellate court as a constitutional right. It is not a question of the lawyers not advising the person appropriately, especially when there are some issues of law which, perhaps, the appellate court may look at from another perspective. So, Atiku’s lawyers might have advised him appropriately well, based on their own appreciation of the fact that this particular matter should go to the Supreme Court so that they can have an authority pronouncement and exposition on that subject matter.
The appellate court gave a judgment in respect of the governorship election held in Oyo State which left the people more confused than convinced about the outcome of the election. What is your view on the controversial judgment?
I have read parts of the judgment. Some portions of the decision of the Court of Appeal that I read was that the judgment of the lower court or tribunal was pervert; proper evaluation of some evidence was not done. The Court of Appeal also said it was allowing the appeal of the appellant, that is, the governorship candidate of the All Progressives Congress (APC), but it did not however nullify or reverse the decision of the lower court. When they said they set aside, in law, that was like saying what the lower court did was wrong. But they should have gone ahead to make some consequential orders; but that, they did not do.
The Court of Appeal noted the fact that the time within which they could have sent the parties back to the trial court or tribunal to take evidence again has elapsed. Ordinarily, the law empowers the Court of Appeal to assume that function, but the challenge would be that, in law, we concede to the trial court some advantages, especially the advantage of observing the witnesses. When a witness is in the dock, you look at his demeanour; you look at the way he answers questions and his mannerism. These are crucial in evaluation of the evidence given by the witness and there is no way the Court of Appeal can have that advantage. At the level of the Court of Appeal, they are looking at the records; the records would be what were actually recorded by the presiding officer at the trial court.
But what the Court of Appeal did would be tantamount to abdication of its judicial responsibility, with due respect and that was what has created some kind of confusion. But, of course, we expect that both parties would appeal that decision and that the Supreme Court would make an authoritative pronouncement on the issue. But the Court of Appeal should not have thrown the parties and all Nigerians in a state of confusion by that decision, though one could say that since there was no positive declaration voiding the election and return of Governor Seyi Makinde, it could not extend the decision to cover that ground.
Since the Appeal Court failed to either confirm or void the election, what is the implication of the judgment on the present administration in Oyo State?
The implication is that the governor is still in office. By virtue of that, he will continue to exercise the powers of the governor, a contained in the constitution and all that laws because there is what is called presumption of regularity in law. Until there is a positive decision of the court to say, ‘you can’t act’, even if the Court of Appeal had voided the election, until the final court, which is now the Supreme Court on the matter, makes its pronouncement, the governor would still have been authorized to remain in office. We have heard series of that in the country; until the Supreme Court says that there should another election or that another person should be in government, the person in that office would remain so. This is because there is no declaration that the Certificate of Return should be withdrawn. Though it is natural that one needs to be a strong man, we could have been spared this kind of situation if the Court of Appeal had carried its decision to the realm of descent to make it clear to everybody.
With all that you said to so far, how would you see the legal system viz-a-viz the political development in the country?
Talking about the legal system, there are three issues we need to bear in mind: First is to look at the laws that come out of the National Assembly and the state Houses of Assembly. Law, by its nature, cannot enforce itself. There must be someone that sees to due administration of law. Of course, our legal system is still a reflection of our colonial experience. There are many aspects of our laws that are begging for reforms, especially because of our own history. Before the colonial masters came, we have customary laws. Now they imposed their own laws on us and we find a situation where both customary and non-indigenous laws operate. So, a times, the law may give someone the right to elect to say, ‘this is how I want my life to be governed’ but, a times, you are not given that choice. So you will see that, in many instances, what we have in our laws may not actually reflect what is part and parcel of our culture.
There is this illustration of defamation: when a statement is made about a person who tends to lower his reputation in the sight of right-thinking members of the society, in our customs, for instance, someone would rather say, ‘you can say anything bad about me, but I will not tolerate you saying anything bad about my parents’. But English Law will say that a dead man has no reputation. Someone can say ‘your father was a thief’ over there. Here, you can call me a thief but when you say ‘my father was a thief’, my thinking would be that my father, maybe in his grave, would want me to react. We don’t have that in our law because of the English nature of the law that we have. We have to look at issues like these.
Another thing that we have to look at is the institutions in our legal system. It is not only the court but also the legal system itself, policing, the correctional centres which we formerly called prisons. We are now talking about introducing law custodian sentences. These are the institutions in place to administer the law. In a way too, we have to look at the legislature. Will a serious country set the requirement of School Certificate, especially with the way we have even interpreted it, for our legislators in a modern day? What is our expectation about the way we conduct our election? We should look at the process that throws up the legislators.
What do you have to say about the electoral process, especially the two governorship elections held in Bayelsa and Kogi states?
We just had elections in Bayelsa and Kogi states. Look at the level of violence that characterised the two elections. Can we really call that an election or that we have democracy? Now, the Europeans have different standards for measuring our election and their own election. Would they [the Europeans] say election is free and fair in Europe, if characterised by the level of violence that we have here?
After looking at the institutions, we must also look at our processes. There is a need for reforms in our procedural laws. Why is it that our cases in courts take longer time than in other jurisdictions? We have the issue of some obsolete rules. Although attempts are being made to refine the rules, but do we have sanctions for those who deliberately draw back the hand of the clock?
Then when you look at the infrastructure, do we have infrastructure that can complement the work of a judge, even if the judge desires to work hard? What about the challenges of attending to his day-to-day job; failure of power supply and a work environment that is not conducive? Should our courts still be recording in longer hands in this era? We see how courts in order jurisdictions operate. In the US, you will see the judge working as if it is an informal thing…
But the problems you listed are not limited to the judiciary as they cut across all other spheres of human endeavour, yet people are striving to make the best out of the bad situation. Nigerians are looking up to the judiciary, but what do you think will be the end result if they don’t get what they want?
The first thing is to appreciate that the judiciary is a reflection of the society. We don’t have foreign judges; they are all thrown up by the Nigerian society. Then, we should revisit the way we recruit judges. What we read or what we were told is that, in the past, the incumbent judges would invite someone that they believe was a fit and proper person to be a judge and not the present system where you have to express interest. Though the Bar is expected to participate in the process, but I don’t know the weight they give to the recommendations or comments of the Bar. I have heard stories of judges who are proposed and who ask for some few more years. They were people that were comfortable and who, after many years of productive practice as lawyers, they joined the Bench. They are not the likes of those who are finding it difficult to make ends meet and see the judiciary as a place where they could become complacent and just get their salaries.
We need to do something about our recruitment process. We need to make sure that we get our best materials into the judiciary. Justice Oluwa, about some 25 years ago said that you want to employ a messenger, you conduct a medical test. Do you do the same for judicial appointment? He said some people are pathologically lazy. We have had experience of some few judges like that. You appear before a judge and he says, ‘this case is adjourned till next year September’. How do you defend such a thing? The constitutional requirement for when judgment should be handed down is there; some judges will try to circumvent that by saying, ‘okay, come and re-adopt your address’. We know they should be assisted and, in fact, in some states, they are provided with some judicial assistants who are lawyers. In some states, they pay them for judicial assistants but we don’t see the assistants and this is a critical issue, in the FCT, for instance, the judicial assistants are staff of the Judicial service Commission (JSC), but assigned to judges. Some other states allow each judicial officer to employ his own judicial assistant. So, why is it that opportunities provided by the state to enhance your job performance, you don’t leverage on them?
The National Judiciary Service Commission (NJC) tried in trying to get the records of judicial performance; making a return on the number of cases a judicial officer must have had in a certain period. But they should be more transparent about it. It is not just enough for you to just indicate the number of cases that you have had; let us have the judgment on those cases that you have delivered. Our colleagues complained of some judgments delivered about two years that have not been made available to them.
Also, I think every judicial appointment should be reviewed every five years. If you believe that the judiciary is not better served by your presence, then you can go out. But the danger is that once someone is appointed a judicial officer, he cannot go back and practice as an advocate; he can practice as a judicial consultant but not as an advocate. So, we really have to make sure that, right from the point of recruitment, we get our best materials and the state should perform its own responsibility to provide the requirements, the environment that would make them succeed in their job.
The Nigerian Bar Association (NBA) seems to be enmeshed in leadership crisis…
Leadership crisis? I am not aware of any
There is this talk about the Egbe Amofin, which many see as a parallel body to the NBA. What is the true position of things?
Of course, we inherited the legal profession from England but it has spent so long a time with us that there are some aspects of it that maybe we have introduced our Nigerian element into it. There is the NBA which is the umbrella body of all lawyers in Nigeria. The NBA, by its constitution, provides that some offices will rotate: office of the president, general secretary and three vice presidents. This arrangement groups the country into three- we have the East, the North and the West. Each side is to produce president on rotational basis.
Of course, it wasn’t so at the beginning. It is acknowledged that the legal profession began in this part of the country in the West, especially in Lagos, so many Bar leaders were from the Lagos area and, of course, so many NBA presidents. If we are to count presidents of NBA since inception, the South-West has produced more than any zone. But conscious of the fact that we need to create a sense of belonging, to give everybody equal opportunity to aspire to be president, and you also say that no one say authoritatively that which section of the country has more lawyers between the West and the East.
Since the NBA came up with that arrangement, that facilitated the establishment of some groups which are of different shades and character. For instance, there is the Eastern Bar Forum (EBF) which is open to lawyers in the old Eastern Nigeria and some parts of the South-South. There is another which is for Igbo-speaking lawyers. The two are incorporated.
For us in the West, the Egbe Amofin is one of such groups. We don’t have our equivalent of the EBF which would be like an association that would cover the old Western Region. In fact, when this Ibadan Bar Association began, it began as the Western Nigeria Bar association, covering from Ikeja to Asaba. The Egbe Amofin is like a group of Yoruba-speaking lawyers. There is also the Mid-West Bar Forum for Edo and Delta states.
You may ask, is the existence of all these justified? The Nigerian Constitution guarantees the rights to freedom of association. Once you have common interests, you can associate together to protect the common interests. Like the Igbo lawyers association looks after the welfare of its members, the association, even after the Civil War, made frantic efforts to rehabilitate its members. So, there is no basis for any rivalry between any of these groups and associations and the NBA.
But why is the Egbe Amofin just gaining prominence now and thus fueling a suspicion of crisis?
From my investigation, the Egbe has been there right from the early 90s. For instance, when the late Chief Clement Akpamgbo SAN became the president of the Bar and later Mrs Priscilla Kuye was the acting president, the Egbe supported her and it was in the bid to get her own term as the president that the NBA had crisis in 1992 because it was observed that the government of the day showed more than a passive interest in what went on in the NBA. So, the Egbe has been there from that period; but a time, it is active and a time, it is not that active. But the desire of many people is that the Egbe should not just be a group to be used to actualise the electoral success of anybody.
The EBF had a conference in Port Harcourt, sometime last week and I am sure that the issues discussed were not limited to elections. The Egbe has constituted a committee, of which I am a member, to bring up a constitution so that we can begin to operate on a more civil basis. However, you cannot rule out the fact that the Egbe has some political interests, being the interests of the Yoruba within the West of the NBA. This is because, if the NBA, by its constitution, says the West is to produce the next president; the West consists of eight states, including the six South-West states, Edo and Delta states, it is desirable that there should some kind of arrangement in which the Egbe should protect the interest of its members at that level. For instance, here in Ibadan, Chief Olisa Chukura was secretary and later the chairman and because Ibadan was the capital of the Western Region, when the Bar Association began in 1954, his area of operation spread far to Asaba. This means that all bar associations that now exist are products of Ibadan and before now, they will at their common interest and take a position on every matter.