Valedictory Speech: Ex-S’Court Justice Dattijo unfair to his brother justices—Ahamba, SAN

Chief Mike Ahamba, SAN

By Ise-Oluwa Ige

Justice Musa Dattijo retired from the Supreme Court bench last week upon clocking the mandatory retirement age of 70 years. He read a fairly long valedictory speech, like his predecessors, at a special court session organized for him which has since set the alarm bell ringing. In this interview with a respected member of the inner bar, Chief Mike Ahamba, SAN, he declared that Justice Dattijo’s outburst in the speech amounted to an attempt to bring down a house he had lived for almost half a century because he is now outside it.

With Dattijo’s retirement, the number of Justices at the Supreme Court will be further reduced to 10 against the constitutional requirement of 21 justices, how do you react to this?

I’m so worried with this. The APC government that has come before and the one that is there now, have not seen anything wrong in the depletion of membership of the Supreme Court. It is a serious matter. But I am sorry to say this: The APC, since it came to power under my friend, Buhari, has always midwifed the wrong thing. They have not taken any right decision in favour of this country since they started ruling under Buhari. I hope they do not crash this country before they are taken out of power. Quote me. That is what I said. Anytime I’m called upon to prove it, I will prove it. They have put this country into a terrible mess economically, educationally, socially, everywhere. And yet, they are looking for votes, even at governorship level. Im surprised that people are voting for them. But as you vote for that party, you are voting for something negative to yourself and your people.

What do you think should be done regarding the depletion of Supreme Court membership

They know the process of appointing people. Let them start immediately. The law says they can be up to 21 justices at the Supreme Court. Even if we cant get up to that, let’s have at least 15 or 16 justices for now. Let them start the process of selection immediately so that in the next three or four months, let them fill all the vacant positions because there can be crisis one day over constitution of panel to do something. You only need two or more of the justices declining to hear a case and we run into a hitch. A full court is 7 and we are just 10. Can’t we imagine a situation in which the Supreme Court may not be able to muster a full court to look into a crucial issue? We must start getting rational in what we are doing in the interest of the country.

Q: At a valedictory court session held in honour of a retired Supreme Court Justice Musa Dattijo last week, the jurist raised the alarm that there is enormous concentration of powers in the Chief Justice of Nigeria, being the chairman of various key bodies in the judiciary like the NJC, FJSC, NJI, LPPC, etc, arguing that power corrupts and absolute power corrupts absolutely. How do you react to this?

Well, when someone says the CJN has a lot of powers concentrated in him, I will expect him to  suggest a way out, having identified a problem. For me, if I make that kind of statement, I would suggest an alternative. I mean suggest those who should perform those functions if the office of the CJN is unbundled.  But he didn’t suggest any. This is a very sore point. Why didn’t he suggest those who should perform the functions in the alternative. There are some things that happened, you just have to leave it to persons believed to be rational to perform those functions. For example, when people say the President should not appoint the electoral commissioners, then who should? Section 154 (1) of the Constitution of the Federal Republic of Nigeria (1999, Amended) and Section 6 of the Electoral Act (2022) empower him to so do. Some of them said that they should be appointed by the Council of State. But even if they say the President should not appoint the electoral commissioners, but the Council of State, don’t forget that the president always has majority of membership of that body. So, what we pray for is to have a president who is rational, who knows the difference between justice and injustice, who would follow the constitution. You don’t say that the officers set to do it should not do it because you have not suggested the alternative.

But apart from the fact that no alternative was suggested, would you say that too much power is indeed concentrated in the CJN?

What I am saying is that assuming the power concentrated in him is too much, what is the alternative. Let somebody suggest something now. When we were at the National Conference in 2014, I was in the committees for governors. And everybody there except myself was shouting that there was too much powers concentrated on the president of the country. I was just a lone voice. I pruned the committee down to specifics and I said let us look at the necessary positions in the constitution. I had to convince the committee to check the section on presidential powers and we looked at all the powers given to the president to identify whether there was any of them he could perform without an input from the National Assembly. And we went through the list from the beginning to the end, there was none and I said who is now responsible if he is not doing well? What about the National Assembly. There is nothing that the president does that does not require the approval of the National Assembly. Not one appointment. Now, if the president has done a wrong appointment, why should the National Assembly approve it? If they approve it, why blame the president instead of the National Assembly. This is my take on this matter. The truth of the matter is that the president cannot punish the National Assembly. But the senate can punish the president. So, why do we leave them and keep pointing at person who has no powers of punishment on the National Assembly and you leave the National Assembly that has approved what is wrong only to be blaming the President. I don’t think that is fair.

The retired justice also said in his speech that public perceptions of the Judiciary have over the years become “witheringly scornful and monstrously critical for a number of reasons including that the judiciary is characterized by filth and intrigues with Judges now comfortable in companies they never would have kept in the past and that court officials and judges are easily bribed by litigants to obviate delays and or obtain favourable judgments”. How do you react to this?

Hun! And he didn’t say all these while he was on the bench. He delayed all these until he has left. The fact is this: I am doing a book on this attitude concerning election petitions and I take responsibility for whatever I write there. Now, he has said they are bribed. If you take bribery before him, he would tell you it is a criminal matter, you will have to prove it beyond reasonable doubt. But in a speech, he now convicts his colleagues for taking bribe. That is not right now. You cant just allege that somebody took bribe and it ends there. Even in a civil case, if you alleged that somebody took bribe, you have to prove it beyond reasonable doubt. That is a civil case. It is not enough to allege it or to sort of insinuate it. You have to prove it beyond reasonable doubt. That’s what the law says. That is it. We must learn not to make allegations we cannot establish. You find out when that my book comes out, I prove everything I said there to the letter, clearly. And in my preface, i will putut it there that anybody who finds anything I have said there as false should challenge me publicly and i will apologize publicly. But if you are not ready to do that now, don’t allege now. I will never talk generally about the judiciary. I have always insisted that you don’t talk generally because amongst them, there are some very good ones.

The attitude of judicial officers waiting till his exit day to criticize the judiciary they are part of started with Justice Odemingwe Uwaifo sometimes in 2004 when he made a lot of criminal allegations of corruption against the third arm of government in his valedictory speech. Few others had done the same. Justice Dattijo last week also joined the line. How do you react to this attitude that is fast becoming a trend?

Yes, I can remember. Justice Uwaifo in his valedictory speech rang the alarm bell that corruption was no longer established in the magistracy alone but that it had found its way into the high court and the Court of Appeal warning that it should not be made to get to the Supreme Court. I know some chief judges also said similar thing. It is no longer a wonderful thing to say. I want people to say this and establish it while still in office instead of when they are going out. Since the time Uwaifo made that statement, has anybody taken heed to find out if he was saying the truth or not. So, this the thing we have in this country. As far as I am concerned, he said it too late. He should have said it when he was in office and let’s see what happens to him. Trying to damage the house because you are now outside it, is not right. Those who wrote petitions against Tanko while they were all there were more gentlemanly and more judicially right than talking when you are leaving. They wrote petition to say this is what is happening now. I admire them for being that courageous while they were still in office. Yes. But when you are on your way out, if you say the judiciary is corrupt, that includes you. We have to probe you too. I’m not saying the judiciary is not corrupt o. They have said it themselves. But you don’t just start talking when you are out. You should have the courage to talk while you are there.

Q: Also at the special court session, Justice Musa Dattijo criticized the composition of the Supreme Court panel that considered the multiple appeals that challenged President Bola Tinubu’s electoral victory in the last poll on the account that the law envisages that the presidential election appeal panel ought to include representatives from all parts of the country. He even insinuated that it was deliberate new justices were not appointed before the appeals were taken simply to shut out south east representatives from the court panel. How do you react to this?

A: On whether the law envisages that the presidential election appeal panel ought to include representatives from all parts of the country, I don’t think so. There is no law that says that in picking a panel, every geo-political zone should be represented even though it is reasonable, so to say. I must say that I have not seen any law in Nigeria that says justices of the Supreme Court that should be empanelled to hear cases must come from all the geo-political zones of the country. If there is any law on empanelling them, it only talked about Supreme Court justices. Period. If we begin to appoint people because of where they come from, they will have the duty to be protecting people who come from their own zone. Is that right?

On the second leg of your question regarding the insinuation that it was deliberate new justices were not appointed before the appeals were taken simply to shut out south east representatives from the court panel, I will simply say that is strange. Ordinarily, I believe the CJN ought to know the ability of his people. You cant just put somebody you don’t believe in his ability in the panel just because he is from a particular geopolitical zone, you will worsen the situation. If the law says that you must appoint a panel representative of all the zones in the country, the CJN must pick justices from all the zones, then he must comply, otherwise the panel will not be competent. But if the law does not say so, then he makes his choice. Unfortunately, some zones were excluded including my own zone. But that does not make me angry. I believe that every Supreme Court justice should be rational and fair no matter what zone you come from. This our country in which we get nothing except based on where we come from is not right.  Everything we get, we want to relate it to where we come from. We  don’t relate anything to being a Nigerian. Nothing. This is not right.

Q: The jurist also said that as the deputy chairman of NJC, he said he is just like a spare tyre, the same way a deputy governor is to a sitting governor with little or no role to play and that the CJN doesn’t consult him when he is taking decision. Is it the law that the deputy chairman of the NJC for instance, should be consulted by the CJN who is the chairman, before decisions are taken?

It all depends on relationship between the person given the powers and the person he thinks he should consult. It is only a question of personal relationship. If there is nowhere it was said that the president must consult his vice president or the chairman should consult his deputy chairman, then it depends on the relationship between the president and his vice or between the chairman and his deputy. Simple. If the law does not enjoin me to consult you, why should I consult you willy-nilly when I know that you don’t want the best for me. In fact, he can decide to consult other persons but definitely not that person. That is why when I see some deputy governors quarrelling with their governors, I always say these people are stupid. You accepted a position that has no function whatsoever and then you want to have functions without being in a good relationship with your boss. That is stupidity. The press call that office stand-by generator. And you are expected to hold it. Why do you want to be a functional generator when the functional generator has not broken down. I do feel sorry for them. Let me tell you, we don’t follow the law in this country. The constitution is very clear. It says that for the president to choose the vice president, or the governor to choose his deputy, it didnt say consultation of his party. The only thing the constitution says is that he has to be a member of his party. Period. Look at what is happening between the Edo governor and his deputy. Can’t somebody tell the deputy to  look at his powers under the constitution. He is to wait until the governor is sick or when the governor gives him an assignment. So, if he doesn’t give you, that’s all because the law does not even enjoin him to give you any assignment. For the vice president, he is only the chairman of National Economic Council. But when they get there, they now want to dictate to the president: You have to accommodate me or I make trouble. He cant make any trouble. If you know you love to be a boss that you cant do a deputy job, don’t accept the position. As you see me here, I cant be a deputy governor. In the same way, the constitution makes the CJN the chairman of the NJC and the next most senior justice of the Supreme Court to be the deputy chairman. The constitution stops there. It didn’t  say that the chairman should hand over his powers to his deputy. He is the deputy so that the day the chairman is not available, somebody can preside. That is all.

Dattijo said salaries of Justices have remained static with no graduation for over 15 years. How do you react to this twin issue.

Elsewhere, the chief justice earns more than the prime minister. I say no more on that issue. The justices should be taken good care of because they cant take care of themselves. What the president of the senate which no justice of the supreme court can do to earn more money. We should not expose them to unnecessary financial discomfort. Period. We should look into that issue raised. We cant blame the CJN, the present and the past, we should blame the senate. They are the people who should make the laws to cover those things. If it is true that their salaries have been stagnant for 15 years, it is not fair. Simply not fair.

The judge also alleged that the appointment of judicial officers, unlike in the past, is no longer based on merit, sound knowledge of the law, integrity, honour and hard work but that people now lobby, they bribe to be appointed judges with judicial officers influencing the process for the benefit of their children and spouses. How do you react to this?

It is unfortunate that is the truth. Very unfortunate. There was a time in this country when before you are appointed a high court in this country, a delegation will be sent to you by government and ask you to leave your practice and come over and serve the country as a judge. And when you accept that kind of position, the government will expect you not now when you carry your cvs all over the place. It is not right. We know that a lot of things have gone wrong in the appointment of judges in this My reaction is that i want to remove the word bribe . but i know they lobby. They lobby. Before, it was not so. But I want to remove the word bribe from it. But I know they lobby. They lobby. Before, it was not so. The language is: have a long standing in the bar, you sit on the bench. Today, majority of the judges never stood at the bar. They sat on the lower bench of the magistracy and they are promoted. Appointment as a judge should not be promotional. Now, note one thing. The day you appoint a high court judge, you must take heed that you are appointing a potential Supreme Court justice, the way things are and the search for quality should start at that time. I made it an issue when I was running for President of the bar in 1998. I made this point one of my reasons for coming. But I lost the election. And that one died. I was of the view that when you appoint a high court judge, you should take heed that you are appointing a potential supreme court justice and the quality search should start there and then not later. So, this is it. A lot of things are happening in a wrong way in this country and that is not an exception and there is little or nothing one can do about it than to pray to God that He should help them do it better.

On the other leg of your question that judicial officers are allegedly influencing the appointment process for the benefit of their children and spouses, I have no evidence for that. If the son of a Supreme Court judge became a judge, that does not mean that he or she got there because of the parents. Now, we would not want them to be favoured.  Also, we should be fair enough. If they went through a competition and they succeeded, you cant deny them the appointment because their father or mother happens to be a Court of Appeal justice or Supreme Court justice. That will be unfair to that very child. The most important thing is whether he is competent. It is not an offence for the child of a judicial officer to become a judge. It is not an offence just as the children of Senior Advocates are becoming Senior Advocates. Or, is it an offence? So, if circumstances gave you a privilege to get somewhere, you prove that those who put you there, put you there rightly. It does not in any way mean that once you are a judge, your own children cannot be judges. There is no law that says that. We cant be unfair to the children. The person can even be a judge of the high court and the child rises to be Supreme Court justice. If you don’t appoint him or her, how will he rise to that level. We worry ourselves about things that are very infinitesimal.

The quality of judgments emanating from our court these days is worrying. Justice Dattijo on his exit day cited the decision of the judiciary in the case of Ahmed Lawan, the former President of the Senate and the Imo governorship appeals, as few of such cases making decisions of even the apex court unpredictable. How do you react to this?

Well, yes. There is what we call judicial precedent. But I have observed that when politics is involved, judicial precedent don’t matter much to us in this country I am doing a case about it as it relates to election petition. Im doing a book on it. I will leave that until I finish my book. 

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