…Backs NJC, Mahmud over refusal to suspend arrested judges
…Explains why S’Court has never pushed for appointment of more justices
…Says outgoing CJN Mahmud is a complete gentleman, hardworking, not a noisemaker
Second longest serving Chief Justice of Nigeria (CJN), Justice Muhammadu Lawal Uwais has given a hint on what a serving judge should do when confronted by litigants or anybody at all with a request to influence judgment in their favour against the weight of evidence before the court.
Uwais, in an exclusive interview with Bar and Bench Watch also said that he expected justices of the Supreme Court who claimed politicians sought their assistance to pervert justice in certain appeals on election petitions to have withdrawn from the panels.
He said he was on all fours with the outgoing Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed over his refusal to suspend arrested judges without petitions against them and investigation of same by the National Judicial Council (NJC).
Describing Justice Mahmud as a complete gentleman, a quiet personality and a very hardworking jurist who well deserved a good rest after over 32 years on the bench, he reminisced how his path crossed his in 1974 when he started law practice.
Excerpts of the interview.
When did you first come across the outgoing Chief Justice of Nigeria and what do you know about him?
Well, my first knowledge of the Chief Justice was way back in 1974 in the North Eastern state then which consisted of the present day Borno, Yobe, Gombe, Bauchi, Taraba and Adamawa states. The headquarters of the Northeast then was Maiduguri. And as the Acting Chief Judge of Northeast, though I was stationed in Bauchi, I used to sit in Maiduguri because there were just two of us handling the northeast high court then. The other judge was an expatriate. We shared the state into two. He was in charge of Borno and Sardauna provinces and I was in charge of Adamawa and Bauchi provinces. But whenever he was away, he used to go on leave for a long period like three and a half months. So, whenever he was away, I would be the only judge in the North-east then. I tried to cover up his own area as well. So, that is how I used to go to Maiduguri. At that time, the learned Chief Justice, Justice Mahmoud was, I think, a pupil state counsel in the ministry of justice of the Northeast State. And he had some seniors then because he was just a beginner in the ministry. And they had cases, of course, in the court, mainly criminal cases. And they used to come with the senior to appear before me. That was my first acquaintance with the chief justice.
Then, of course I left him in the Northeast in 1976. I was in my own state which is Kaduna state, but at that time, it was called North-central State. It was a combination of the present day Kaduna State, and Katsina State. So, I wasn’t seeing him much. There was a break between the time I was in Bauchi and the time I was in Kaduna. But as for Justice Mahmoud, I know on the creation of Gongola state, from the old North eastern state, he moved to Yola and he eventually was a high court judge and on the creation of Taraba State, I can’t remember very well now, he moved from Yola to Taraba State as the chief judge or acting chief judge of Taraba state. At that time, I was already in Lagos at the Supreme Court. There wasn’t much happening. He was a chief judge and I was a justice of the Supreme Court. Unless he came to Lagos, I had no occasion to see him because as a chief judge he was a member of the council of AJC (Advisory Judicial Committee) of the military regime then. Now, from the position of chief judge of Taraba, he became a justice of the Court of Appeal. I know he was posted around but I can’t remember now. But kaduna was one of the places and I think he served in Abuja as well. I can’t remember well. Now while I was the Chief Justice and he was at the Court of Appeal, way back in 2005, he was recommended to be appointed a justice of the Supreme Court. He was considered by the Federal Judicial Service Commission which nominated him to the National Judicial Council and the NJC recommended him to the president for appointment as justice of the Supreme Court. That was President Obasanjo. So, that’s how he became justice of the Supreme Court. When he came to the Supreme Court, I was also on my way out. I’m not sure we spent more than one year together. And I didn’t sit much with him that time because I was trying to wind up. But despite that, I know we sat on a number of occasions in some of the cases in the Supreme Court. After about 9 years, from 2005 when he came to the Supreme Court and 2014 when he succeeded Justice Aloma, he was a justice of the Supreme Court and he has been CJN since 2014 and will remain there till his retirement.
Judicial temperament is a key factor to consider to do a good assessment of a judicial officer. For the little time you sat together, how do you see him?
He is a gentleman. He is quiet by nature and very hardworking. That much I know. Like I said, when you are in the Supreme Court, there are panels that are constituted because we have up to 15, 17 justices. The ordinary panel will consist of five justices while what is called the full court will consist of seven justices. Now I wasn’t sitting much as the Chief Justice of Nigeria because of other engagements. Even when I sat, it is not always. If a panel is four, while I was there, I used to divide the year into three terms. The first term will be from September to December. The second term will be from January to Easter which may be the end of March or beginning of April and the third term is after Easter till mid July. So, what I used to do is to constitute three panels each term, five, five, five. That will give you 15. Now each panel sits for a week. So, if panel A is sitting, panel B will not be sitting. They will be in chambers, either holding conference on the cases they had done before or writing judgments or studying records for their next sitting. Because of this, I couldn’t put myself on any of the panels. There were three panels. That is 15 justices. Like I said, there used to be 16, 17 justices. So, if we are 17, two of us will be available to replace anyone if there is a problem because the case we are going to hear, any of them may be involved at the lower court. So you can’t sit on appeal over your own case. So, what we used to do then was to fill the space. Sometimes, somebody on a panel might also fall ill or disqualify himself from sitting over a case. It is the extra justices that will now fill the space. That was what they used to do then.
So, that was why I couldn’t really work fully with him. The panel changes every term. Unless if you look at the cases, maybe since the cases are reported, you can tell me easily, if you go to the time he came to the Supreme Court, just a period of one year, you can easily count on your fingers the number of cases we did together. Bu I know him as somebody who is well composed. He is hard-working. He is not a noisemaker, normally.
In the 1999 constitution, there is provision for 22 justices including the CJN. But why is it that we have never had a full complement ?
It is convenience. In the United States, they have only nine justices of the Supreme Court. And they do everything. The nine sit always. But in our case, the reason why people will like to see more justices is because they feel cases are not moving. But the problem is not that. The real problem is from the Court of Appeal. If you allow every case in the Court of Appeal to come to the Supreme Court, whether full case or interlocutory, you are overloading the Supreme Court like I just explained to you. And those who drafted our constitution envisages a Supreme Court sitting in one panel. Why can it sit simultaneously in two or more panels? There is good reason for that. Remember I told you that the United States has nine supreme court judges. So, there, they knew what they did yesterday, what they are doing today and perhaps what they would do tomorrow. You would not have conflicting judgments. But if you have panels of the Supreme Court sitting at the same time, apparently, one panel may not know what the other panel is doing. And you are likely to have conflicting decisions. And if you have conflicting decisions, it has terrible effects on the whole system. If you go to a lawyer for advice, he will tell you that Supreme Court has expressed two different opinions. So, I don’t know which one will apply to your case which is not helpful to the client. On the other hand, for the lower courts, if the Supreme Court decides a point, the other courts below are supposed to follow. If you have conflicting judgments and you are a judge, how do you get guided? Because it means you have to accept one judgment of the Supreme Court and reject another. That affects also the system. This is why as justice of the Supreme Court, we are not interested in getting more justices for the Supreme Court. It will not solve the problem, rather it will create more problems. This is why deliberately the justices of the Supreme Court do not clamour for more judges. But what they will like to see is like what happens in England or in many places. Like a case that is started at the magistrate court, they then appeal to the high court, they then appealed from the high court to the court of appeal, maybe on a simple matter which has been decided even before. But because they are given the opportunity, the rules allow it, lawyers will take advantage. And that is why you find cases dragging on from generation to generation which is not good for the system. And that is why the Supreme Court is overloaded. Any case gets there. If you start a case in the high court, you lose there, you move to the Court of Appeal, you lose there, then you still want to come to the Supreme Court? Really, if you have been winning and losing, you can say maybe you should try your luck because there could have been mistakes. But where you are losing all the way, is that not a waste of the time of court. So, that is the attitude of the judiciary. They are not interested in increasing the number of the Supreme Court justices but reducing the number of cases that come to the Supreme Court so that there will be speedy justice.
Even though you have expressed your challenge in expressing opinion about Justice Mahmud, but what are the major duties of a CJN to guide us assess the outgoing CJN?
The work of the Chief Justice is numerous. There is the running of the Supreme Court from day to day. There is the ceremonial aspect, travelling, opening conferences, opening buildings and so on and so forth. Then, there is the constitutional aspect. That is the Federal Judicial Service Commission which is concerned with the appointment, promotion of the members of staff from chief registrar down to the messenger and it is also responsible for nominating candidates who will be appointed as judges, whether at the high court, the court of appeal or even the Supreme Court. So, you have the NJC again, the overall policy and so on. Then there is the financial administration as well. So, if you are not in there, you are an observer from outside, there is very little, you can say. You can’t pass judgment. It will be unfair. You are not well positioned to pass judgment.
Now, regarding this present crisis in the judiciary, the DSS alleging corruption. How does the CJN come across to you in the way he handled it?
Well, first of all, the way things used to be, I don’t know now because I am not there except what we read in the newspapers. Normally, when we had the police, if somebody, a judge or a member of parliament or a minister of state commits an offence and the police are going after him, what they usually do quietly is that they would go and see the head of the department. If he is a minister, they will let the president know about it that so, so minister is suspected to have committed so, so offence, and they will like to arrest him and interrogate him. If he is a Senator, they will notify the president of the senate before doing anything. If he is a member of House of Representatives, they will notify the Speaker. And if he is a judicial officer, they will notify the Chief Justice in confidence. That was how things were being done. But in this particular case, from what I read in the newspaper, the DSS decided to raid the houses of the justices and the chief justice was not informed . That is contrary to the laid down tradition. What do they have that they are hiding away from the Chief Justice? A whole Chief Justice! The head of the judiciary. They should have taken him into confidence and tell him that this is the report they have. And that this is what they suspect and that they were going to look for evidence. That is how it was being done. But in this case, it has been breached. Normal procedure has not been followed. The chief justice has been making that point that they are trying to intimidate the judiciary. And it is wrong. Each arm of government has its own function. Although they are separate, they are supposed to work together for the betterment of the system. So, I quite agree with the Chief Justice there when he said the wrong procedure was used. And when it comes to prosecution, the DSS can’t go to court and prosecute. So, they have to fall back on either the police, or the EFCC or ICPC. So that is the situation as I see it.
If they don’t have powers to prosecute, the investigations conducted, will it stand?
No, they can’t convict people. They can’t detain indefinitely. They may detain say up to 48 hours, before taking them to court because that is what the constitution says if you suspect or accuse somebody of committing crime. You have the powers to arrest him, you have the powers to detain him but not more than 48 hours before you can grant him bail or take him to court.
When the crisis that hit the judiciary broke out, the NBA supported the CJN on the insistence on following the procedure and ensure respect for the independence of the judiciary. About a week after, NBA said it would be better for the affected judges to proceed on compulsory leave. Do you agree with NBA’s position?
Yes, the NBA was wrong on that and even the SANs. This is because the National Judicial Council as a body has its own procedure. If a judge misbehaves, you are supposed to report to the NJC. When you report to the NJC, it will set up a committee of its own to investigate. And in the course of that investigation, they will invite the petitioner and the judge, each one to present his case, his own side of the story. And then, that body will report back to NJC their findings and their own recommendations, whether they feel the judge is guilty of the accusation or not. If the judge is guilty of the accusation, the NJC will decide which measure to take which may include dismissal or suspension or whatever. If he is not guilty, that is the end of the matter. That is the procedure known to the NJC. Now what the bar is saying without receiving petition, without investigation, they want NJC to say the justices should not sit and that they should just go, it is not done! It is not proper. Now, like I said, part of the problem with the DSS, they can’t go to court. A lot of the things they do really, they rely on rumour. They spy on people. And if you go to court, it is what you see or hear. See and hear at the same time. And you have to come out and tell us who you are, what you do and what you have to tell the court. It is not a secret thing. DSS doesn’t want that. They don’t do it. It is not part of their system. And that’s why they have not been able to go to court. For instance, they went into the judges houses, they broke in, they said they found money. What is that money for? How did it get there? They have no evidence except what the judges tell them. And I read that one judge said they planted the money (Laughs). So, if they go to court, that is what they will meet. Their evidence will not be strong enough to secure conviction and they would have been ridiculed. Because, it is not their function what they have been doing. They can find information really, about sabotage or whatsoever and decide what preventive action to be taken but it is not their function what they have done. That is the problem now.
Is it proper for a serving judge or justice of the Supreme Court to visit houses of individuals, etc?
No, many things have gone wrong from what I have read. For instance, when in the case of Amaechi and Onu, they claimed they approached them, asked them to assist them in Rivers case and Akwa Ibom. In my days, if any politician comes to you and tries to influence you, and you are a member of the panel, you will go to the chief justice and say without even telling him about the details that you want to disqualify yourself from sitting on this case because you feel that your conscience will show to you that somebody attempted to interfere with the course of justice, rightly or wrongly. You know, you may feel that since this man came to influence me, he has a bad case. That is why he couldn’t rely on his evidence and this will influence your decision as a human being and that is why you can say oh, I don’t want to sit. It has happened to some of us, quietly. People will come to talk to me, for instance, about their cases and I won’t talk. I will allow them to finish their talking. But I wouldn’t tell them I would not sit anymore. I will then go to the chief Justice as the case may be, and say I am sorry, I dont want to sit on this case anymore. And usually, the chief justice will not even ask you why unless you want to say it. Once you say, you don’t want to sit, he respects your view and takes you out. This is because if he insists you sit and tomorrow somebody said eh, he lost the case because somebody came and saw the judge, it could be embarrassing.
So, I am surprised that Amaechi and Onu approached these judges and yet, they sat. Why didn’t they disqualify themselves because that was the tradition. That is very wrong of them to sit. Nobody is talking about this now. It was very wrong. They should have disqualified themselves.
I think one of them disqualified himself. But the fresh issue now is an open letter by a rights group called SERAP to the CJN to the effect that since the two justices of the Supreme Court said they reported to him, they wanted to know what he did about the reports? They wanted to know if the CJN reported to the IGP, DSS etc?
No. He doesn’t need to do that. Normally they wouldn’t report. The decision is that of the judge. Not that of the CJN. The CJN had already put him on the panel, and if somebody tries to influence him, he knows and can go to the CJN and say please excuse me from sitting on this case. And sometimes, the judge doesn’t say it until after the event. He didn’t want to influence any justice; he didn’t want the whole thing to leak to the whole justices who are going to sit. So, he keeps it to himself and ask to be excused. The judge can now say the reason why I had to be excused is because so so and so tried to influence me but I rejected him. So, the CJN cannot normally, do anything or report to anybody. But eventually when the occasion presents itself if he is addressing the public, he could say people in position try to influence judges. We have a number of occasions where judges have to disqualify themselves from sitting on these cases and I’m warning such people to desist from what they are doing because it is not right. They know themselves. You don’t need to come out and be giving names. But the whole world would have known about it. People in key positions have tried to influence judges in the past. That is how to go about it. Not the noise that people are making. The CJN is the head of the judiciary. To whom is he going to report? Who will solve that problem for him? That is why it is not necessary to call the police or report to the President. It is not the president’s function.
There is a fresh clamour for the removal of section 292 (2) from the 1999 Constitution which bars any sacked judge from practice. The argument is that the provision can encourage corruption. How do you react to this, sir?
No. If you are a judge and you have practised on the bench for 15 years, the constitution says when you retire, you will be entitled to your full salary and allowances. The whole idea in making that provision is because you can’t practise law. Your life style would have been the same when you were in retirement as when you are on the job. So, that is why. Part of the reason again why they said you should not practise is that in some places, they do, but in our case, a person like me, I have been in the Supreme Court for 27 years. Most of the judges now were appointed during that time and i was the Chief Justice for ten and a half years. You can imagine the number of high court judges that I either swore in or appointed up to even the Supreme Court because the CJN swears in justices of the Supreme Court. To say I retire and I open chambers, I will come to court with you to make application before a judge that I was responsible for his appointment, do you think he will be fair to you? Sometimes, he will think he has an obligation to me since I assisted him to be a judge. And that will defeat the cause of justice. That is why that provision is there. You can do solicitor’s job. Solicitor means open your chamber but advise clients, write opinions for them, organisations on knotty point if they want to know how to go about it and charge them but you don’t go to court. But as solicitor, you can’t appear in court for advocacy.