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The SAN’s Pulpit:The long distance runner braces the tape ( 4)

By Awa Kalu

In our earlier instalments on Justice Kutigi’s valedictory session upon his retirement as Chief Justice of
Nigeria, attention was drawn to the various sub-themes on which speakers at the occasion dilated.

Before we juggle your memory on the critical areas on which the individual speakers bared their minds, it is important to note that such gatherings often bring together men and women of ‘timber and calibre’ from different fields of endeavour. Justice Kutigi’s valedictory session was no exception.

To the delight of many, and we stand to be corrected, that occasion was graced for the first time by angelic and cherubic faces of two female Supreme Court Justices -Aloma Mariam Mukhtar and Olufunlola Oyelola Adekeye J.SC. Hitherto, there was only one such face on that Bench but the addition of a second shows that women are making great progress with regard to their emergence on the Benches of Superior Courts of record in this country.

Perhaps, this is the only country in Africa in which female Judges are forging ahead in a manner that is no longer imperceptible. It is doubtful whether there is any High Court Bench in this country on which female Judges are not sitting in a proportionate ratio with their male counterparts.

There are several female Judges now sitting in the different Divisions of the Court of Appeal-even as Presiding Justices. The demons have since been banished and the former excuses that inhibited their progress are now in the past. There were several highly educated and powerful Traditional Rulers (Emirs of Suleija, Kontangora and the Etsu Nupe) in attendance just as there were powerful politicians including present and former Governors.

To that extent, Governor Babangida Aliyu of Niger State was present. The Lagos State Governor Tunde Fashola, a Senior Advocate of Nigeria was also in attendance, as was Professor Amos Agbe Utuama, SAN, the Deputy Governor of Delta State. Asiwaju Bola Tinubu, former Governor of Lagos State, Justice S.M.A. Belgore,, former Chief Justice of Nigeria as well as very many other serving and retired Justices of the Supreme Court, the Court of Appeal and other Courts were all smiles as the proceedings wore on.

Justice Dahiru Musdapher smiled benignly when it was said that the retired Chief Justice was often impatient when any Counsel tended to be long_winding or indulged in circumlocution. In the presence of a packed Court, each of the authorized speakers recounted the milestones of an acknowledged meritorious career in public service including the celebrant’s long service on the bench.

Having revisited the galaxy of personalities who came to bid His Lordship goodbye from the Bench, we need to recall the references to the calls for the abolition of the rank of Senior Advocate of Nigeria and the argument that has trailed the debate on either side of the divide and in addition, we must also recall the condemnation of the rising number of cases that are presently argued and profiled on the pages of newspapers, on the Internet and even on television. There were references to the recurring crisis in Jos, the proposed political and electoral reforms, the retirement ages of Judges and the vexed question of direct appointments from the Bar to the Supreme Court Bench.

Although no attempt will be made here to rekindle the debate on the retirement age of Judges, it will however, pay dividends to recall that under the extant constitution, judges of the High Court retire mandatorily at the age of sixty five years. At the appellate level i.e. the Court of Appeal and the Supreme Court, judges continue sitting until they attain the age of seventy years, at which stage they must quit even if as fit as a fiddle. On one side of the divide, are those who contend that a Judge ought to hold his office for life subject to ‘good behaviour’.

On the other side are those who point to the debilitating effect of our environment where harsh working conditions make it inexpedient for Judges to ‘die in harness’. In a situation where a Judge takes the record of court proceedings in long hand and conducts his research manually, responds to frequent power interruptions, it is thought that such a Judge ought to go at an age when he can pursue some other interests or vocations. Reference is made to Judges who became traditional rulers upon retirement and to another set that became clergymen, farmers, Arbitrators, Consultants, etc, upon retirement. Some have found time to attend to their memoirs or other writing. The popular African adage is that you cannot watch a masquerade from only one vantage point.

The lesson is that to maximize your enjoyment of the antics and performance of the masquerade, you need to alter your position as occasion may warrant. Having regard to the teeming number of retired Judges who found joy in other meaningful activities after retirement, it is difficult to be dogmatic on this matter save to be mindful of the fact that any change in the status quo would require a constitutional amendment. To make anything out of the proposals for political and electoral reforms would require a lengthy review and we prefer to leave that issue for another day, soon enough.

However, the merits and demerits of direct appointments from the Bar to the Supreme Court Bench require a little patience having regard to the comments made by the incumbent Chief Justice in the course of his appearance in the National Assembly during his screening for his new job. His Lordship (the Chief Justice) scoffed at the idea of taking any one direct to the Supreme Court without any intervening judicial experience. His opinion was anchored on the point that appellate work involves the correction of the errors of the Court below.

How can you correct when you do not have any knowledge of what the Judge does, he queried. It was also his view that in England, you cannot be a Judge unless you have taken silk.  He recalled that the direct translation of Justices T.O. Elias and Dr. Augustine Nnamani from the Bar to the apex Court was during the military era and that era, being an aberration, could not be a peg on which to hang any case for a repeat performance. In that regard, let us visit the argument on the other side.

Chief Wole Olanipekun, SAN, who spoke on behalf of the Body of Senior Advocates of Nigeria at Kutigi’s valedictory session, noted that ‘the duties and responsibilities foisted on our peculiar situation call for the appointment of the very best of materials from all the segments of the profession, the Bench, the Bar, the Academia, etc, to the Supreme Court Bench’.

He also further argued that ‘…the apex Court should be the melting point of the very best of ideas and experiences from these departments of the profession’. After drawing attention to section 231(3) of the Constitution which provides that a person shall not be qualified to hold the office of the Chief Justice of Nigeria or of a Justice of the Supreme Court unless he is qualified to practice as a Legal Practitioner in Nigeria for a period of not less than fifteen years.

Chief Olanipekun conceded that no ‘pedestrian interpretation’ should be given to that provision but submitted nevertheless that ‘…someone who has been found suitable to be appointed and sworn in as a Senior Advocate of Nigeria and has been at the Inner Bar for upward of ten years, effectively practicing law, writing and settling briefs and appearing before our appellate Courts is qualified and suitable for a direct appointment to the Supreme Court of Nigeria’. It was his further contention that ‘it is also not out of place to have a peep into the academic world to consider one or two of the eggheads therein for appointment to the Supreme Court. By so doing, the apex Court would become richer, stronger and better, but definitely not weaker’.

I cast my lot on the side of erecting a Kaleidoscopic view for the apex Court by enlarging the search for those whose words are ‘final but not infallible’ having regard to what they say about the laws of the land. His Lordship the Chief Justice, whose patience and meticulous attention to detail is widely acknowledged may give further thought on this matter on the points marshalled by Chief Wole Olanipekun, SAN, and on several other point which ought to persuade the preeminent judge. The present system of appointment by promotion ought not to be cast in stone having regard to the fact that the most learned Chief Justice has empanelled a sub-committee of the Legal Practitioners Privileges Committee to make recommendations for the reform of the criteria for the appointment of Legal Practitioners to the rank of Senior Advocate.

Perhaps, His Lordship may create a similar Committee from the National Judicial Council, for instance, to see whether what is clearly contemplated by the Constitution ought to be forbidden in practice. Surely, if a lawyer appears at the apex Court and convinces the apex Court to overturn the judgment of the Court of Appeal, such a lawyer must be deemed to understand those consecrated principles of law and practice that lead to such intervention. Similarly, if (even though the occasion is few and far between) a lawyer convinces the apex court to overrule its previous decision, that lawyer ought to be applauded for recognizing that Oliver Wendell Holmes was right when he said that ‘the law is not a brooding omnipresence in the sky’.

His Lordship may listen to the voice of his eminent colleague who had examined the cause of law and justice in the years gone by Justice T.O. Elias, of blessed memory said of contemporary Nigeria, that it requires a lawyer who is at once a social engineer and an analyst, a Pericles and a plumber, capable of appreciating the values of existing institutions and mores and yet ever ready to make a dynamic contribution to the maintenance of a proper balance between the claims of the state and those of the individual’. He urged that ‘Law and society should engage in a continuous dialogue both as to the choice of means, and as to the end in view’. The kind of lawyer Judge Elias had in mind exists within the Bar, the Bench and even amongst our colleagues in the Diaspora.

Supreme Court as a Court of law and equity and above all, as a policy Court, ought to take advantage of a wider catchment area. It is good and certainly, not deleterious. Perhaps, the example of other arms of government such as the Executive and the Legislature may be instructive in that one needs no prior experience as a Minster for instance, to serve in that position or as a Commissioner at State level.

Similarly, there are several members of the National Assembly and of State Legislative Houses that had no prior experience in legislative work who have not made a harsh of it. His Lordship does not require verbosity on this point and we shall now conclude this piece by praying that Hon. Justice Idris Legbo Kutigi, enjoys his well earned retirement.


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