How to fix S’Court—Prof Itse Sagay, SAN

Prof Itse Sagay, SAN

In this interview with Ise-Oluwa Ige, Prof Itsejuwa Esanjumi SAGAY, SAN recalled nostalgically the golden era of the Supreme Court when law lords like Justices Kayode Esho, Chukwudifu Oputa, Augustine Nnamani, etc bestrode the Supreme Court bench with law enjoying a high degree of certainty, predictability and stability in comparison with today’s apex bench and  posited that notwithstanding the sharp decline in the quality of its manpower and output, the apex bench can still experience an upward swing if certain measures can be taken by relevant authorities.

On November 16, 2023, Osun State Governor, Ademola Adeleke in cahoots with the state House of Assembly suspended the state Chief Judge, Justice Adepele Ojo and in less than 72 hours, after much pummelling, made a bold face denial of the action taken. How do you react to this?

Well, it was clear to everybody with even a limited idea with the provisions of 1999 Constitution of the Federal Republic of Nigeria that the suspension was illegal. This is because a state governor cannot suspend a chief judge or any serving judicial officer without such matter going through the National Judicial Council (NJC). The state governor cannot arrange between himself and the state House of Assembly: one recommending to the other, and just suspend the state chief judge like that. It is purely illegal. It is in conflict with the provisions of the 1999 Constitution. It is a common knowledge that the procedure is: if a judge misbehaves, you report the matter to the NJC and it is the NJC that does the suspension if a prima facie case is found against the embattled judge. Definitely, not the complainant (in this case, the governor) that will do the suspension. So, it was very clear that what the governor and the House of Assembly did was illegal. And when they realized the illegality of their action, they reversed everything that they did and began to deny. No governor has such power to fire a judicial officer without going through the NJC.

There is a school of though pushing for the unbundling of the Supreme Court. They are proposing a central S’Court in Abuja and six regional Supreme Courts to handle cases at regional level.  How do you react to this?

I think that will be very clumsy and complicated. What I would have suggested, and, in fact, which I have suggested many times, is to limit the appeals that find their ways to the Supreme Court. It should not be Supreme Court of anything. Some cases ought not to be filed there. For instance, what is the Supreme Court doing with landlord and tenant case? Unfortunately, today, you can appeal such case to the Supreme Court. I was involved in a case recently where the other side vouched that we would end up in the Supreme Court. The idea is just to obstruct and obstruct, then delay to achieve a goal because the journey is a long one. In my opinion, I think that is not necessary. There are other trivial cases like divorce that should get to that court. In fact, if I have my way, I will limit the Supreme Court appeal to political, constitutional and human rights matters. Anything other than that, no. Commercial matter, no. One company suing or you are suing for your shares, no. Those are things that can be handled by the Court of Appeal at the highest level. So, only political cases, constitutional matters and human rights cases are those that should be reserved for the Supreme Court. Not all these ordinary routine legal issue which can be handled at the lower level. Currently, the Supreme Court is so loaded with so many trivial matters that if you file a fresh case there today, you will spend a minimum of ten years to get your case heard. It is scandalous and devastating.

Considering the nature and seriousness of the service they render, stakeholders have been mounting pressure on the executive and the lawmakers in the last ten years including obtaining court order to compel upward review of the meagre salaries earned by judicial officers in the country with no result. What is your take on this issue?

I think the president should weigh in on the matter. This is because it is having an effect on the quality of the judgment of the Supreme Court and makes them highly susceptible to parties brandishing a lot of money. I mean, somebody offering $3illion dollars which you can retire on forever. The temptation is so great. So, we need to pay justices of the Supreme Cmoneyand other judicial officers in other levels of the court sufficient amount in salaries and allowances and give them conditions of service that will make them very comfortable and able to carry out all their expenses and then, live a very comfortable retired life. If that is done, it will reduce the attractions from these corrupt parties that tend to tarnish the image of the Supreme Court by involving them in cash and so on. Without any question, their salaries need to be increased. I mean, it is ridiculous that a member of the National Assembly is taking home about N15million a month and Supreme Court justices are taking home about N1million each. It doesn’t make sense.

A recent survey finds that ordinary Nigerians on the streets appear to think low of the Supreme Court of Nigeria today. It also finds that even many lawyers are not comfortable with the apex bench particularly with its recent decisions in two notorious cases involving former and incumbent Senate President. How would you react to the findings?

Without any question, the Supreme Court decision endorsing former Senate President, Ahmad Lawan as the All Progressive Congress’ candidate for Yobe North senatorial district together with its separate ruling in another case endorsing Godswill Akpabio’s candidature for Akwa Ibom North Central senatorial position created a great embarrassment to senior lawyers who have an idea of the law. It is a great embarrassment. You could see  Okorocha making fun of Lawan in the Senate, saying he should tell us the trick of how he managed to make it back to the senate. You know, it is an open secret on how they got there. Certainly, it was not a legitimate exercise that took them there. Everything that took them there was contrary to the existing law: The 2022 Electoral Act. No doubt about it, the magic by which they got there would remain a mystery for a long time. And this has not done anything good to the image of the Supreme Court.

What is the way forward?

As I have said earlier, the remuneration and rewards of Supreme Court justices, during the time they are in office and in retirement, should be increased tremendously. That will separate the good ones from the bad ones. The good ones will certainly refrain from anything that will tarnish their names.  We used to have a Supreme Court in those days. I am talking of the time when Justice Kayode Esho Esho (1978-1990); Justice Chukwudifu Akunne Oputa (1984-1989);  Justice Augustine Nnamani (1979-1990); Justice Mohammad Bello, about seven or eight of them then were in the Supreme Court, our Supreme Court was the best in the world. And that is what we now refer nostalgically to as the Golden Era of the Supreme Court. After that, there was a decline. The decline was however gradual up till around 2004. It just declined sharply particularly from 2007 after that terrible election conducted by Prof Maurice Iwu. After that election, the quality of decisions at the Supreme Court deteriorated sharply because a lot of things went wrong after that election. But as I said, if we do the right thing, we will see an upward swing. And if we reduce the number of cases they are handling, bearing in mind that they should be limited to cases on policies of the state, constitutional matters, political matters, human rights cases, that is enough. They would have enough time to reflect on issues and give qualitative judgments.

But there is another school of thought fingering the violation of Section 231(3) of the 1999 constitution which provides that justices of the S’Court should be appointed from qualified legal practitioners in advocacy, academics and the appellate bench, as the cause of decline in the quality and image of the apex bench?  

I agree that restricting appointment into the Supreme Court bench to serving justices at the Court of Appeal is a big mistake. They think that appointment into the Supreme Court is an exclusive preserve of those in the judiciary. It is a misunderstanding of the legal situation that is affecting the country. They should appoint directly from very senior practitioners who have established a record of good character and learning and of university professors who have a record of achievements in their research and writing in addition to those being elevated from the Court of Appeal. In fact, candidates from both the bar and the academia had previously been appointed into the Supreme Court bench and they did very well.  For instance, Justice (Dr) Augustine Nnamani was an Attorney General of the Federation, the fourth holder of Doctorate degree in Law when he was appointed. Justice Taslim Elias was the Attorney-General, Professor and Dean of Law Faculty at UNILAG when he was made the Chief Justice of Nigeria and quite a number of others which names I cant actually remember now who were appointed directly to the Supreme Court without being members of the bench and they all performed excellently. Though, I can understand the tendency to protect one’s turf. Yes, to say that the judiciary is our own turf , nobody from outside should come. But the judiciary belongs to the whole of Nigeria. Their judgments are given on cases filed by Nigerians. Appointment into the Supreme Court should be open to those who are qualified. And we need some intellectual and philosophical bents in their decisions which we used to have in their decisions during the time of Justice Esho and Oputa in those days but which is lacking today and which should be provided by people from the University and then practitioners of great learning. It will definitely strengthen the legal output and quality of judgment from the Supreme Court. There is no question about that.

Stakeholders have begun to fault section 285 (6) of the 1999 Constitution which prescribes 180 days for court to deliver its decision in writing for all categories of election and Paragraph 4 (5) (6) and & (7) of First Schedule of the Electoral Act, 2022 which provide that election petition must be filed within 21 days accompanied by a list of the witnesses that the petitioner intends to call in proof of the petitions. What is your attitude to this?

I think those provisions should be looked into. But, let us not forget that the 180 days in fact was done to shorten the process of election petition. Before, we were having election petitions that were lasting three and a half years. If you remember Ngige and Peter Obi and the case of Olagunsoye Oyinlola and Rauf Aregbesola which took over three years. So, by the time Oyinlola left, he had spent almost his term. He wasn’t bothered. It was in an attempt to resolve all these that they reduced it to 180 days. But I agree that it is still too much. I think we must have a way out. One is by making elections to come early so that election cases can be concluded before swearing. If we say election should be held nine months before the actual date of swearing in, then, within those nine months, we should be able to conclude everything. Because what people are most concerned about is that people are being sued while they are already in office and that incumbency appears to help people in that office. We can eliminate that by creating a situation in which all election petitions are determined before winners take oath of office and we should also reduce the steps. For instance, governors now have the chance to go from tribunal to the Court of Appeal and to the Supreme Court. That is too much. Two steps are enough. Those are the things that should be looked into. It is too long. People should be engaged to study the situation and make recommendations on how to shorten it. Also, all election petitions must be dealt with before taking office.

On the other leg of 21 days maximum to file petition with all witnesses’ depositions?

That is what is going on now. Everything is front-loaded. Everything must have been typed and signed. Those witnesses must have gone to court to take an oath to confirm that they are the ones giving evidence. Everything must have been in within the stipulated time. Nothing will be accepted again once you have filed. They wont accept any witness deposition outside those whose statements on oath were filed with the petition

Will 21 days be enough for all categories of election?

It is probably not enough for presidential election, for instance. But that is the law, as it stands today. Very unfortunately, when you make a decision in this country, because you want to favour somebody and that legal principle which you introduce into that judgment now becomes the law which can create a very devastating situation for the entire country. When in 2015, the Supreme Court ruled in the case between Peterside and Wike. The history of the case was to the effect that Wike was declared winner by INEC. Then, Peterside went to the tribunal and the election was nullified. He went to the Court of Appeal, the nullity was upheld. Wike appealed to the Supreme Court and the Supreme Court restored his victory by saying that if you make any allegation about any polling unit, even if it is 10,000 polling units, you must produce 10,000 witnesses. The court said that there must be a witness from each polling unit and that you cannot have somebody who is the head of all the polling agents of that party coming to give evidence on their behalf with the evidence they have signed. The court said no, you must produce them one by one even if it is 1000. Now we have 176,606 polling units in the country. So, if you have any complaints about each of the polling units, you must produce a witness each from each polling units to give evidence. You know that is impossible. And I remember I wrote an article in that case which I entitled: A farewell to election petition. I said so because there is no way any petitioner can succeed and no petitioner has succeeded since then when the petition rests on electoral malpractices. So, we need to look into that law again and set it aside and allow evidence to be provided by agents of the party based on allegations coming from various units which will be attached to the evidence of the agent. We have to allow that. Otherwise, no election petition will ever succeed. None will ever succeed except purely on law but not on electoral malpractice.

Source: Vanguard

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