Special Report

August 28, 2011

As CJN Retires: Leaving the judiciary in turmoil

*Genesis of the Katsina-Alu/Salami face-off
*… The implications to follow

What would have been a fitting and befitting retirement for Chief Justice of Nigeria, Justice Aloysius Iyorgyer Katsina-Alu, is unfortunately, becoming pantomime.  After 44 years in the legal service, leaving behind a crisis-ridden judiciary at a time when the building blocks of democracy are still being put in place, as the Chief Justice, may not reflect the true essence of Katsina-Alu.  However, confronted with contemporary realities, as late as his insistence to swear-in 30 new Senior Advocates of Nigeria, SANs, 48 hours ago, only presents Katsina-Alu as an individual who is set in his own way.

By Jide Ajani, Deputy Editor, Abdulwahab Abdulah & Ikechukwu Nnochiri

What a waste!

How did a certain Aloysius Iyorgyer Katsina-Alu end up in the legal profession?
Well, he enrolled at the Nigerian Military Training College, Kaduna, between April and October 1962, from where he moved over to Mons Military Training College, Aldershot, England, between November 1962 and January 1963.

But then, something changed. His interest in a military career was, however, short-lived as he returned to the country to later enrol at the Faculty of Law, Ahmadu Bello University, Zaria, between 1963 and 1964. In 1964, he proceeded to the Inns of Court School of Law, Gibson and Weldon College of Law, School of Oriental and African Studies, University of London, to continue his legal studies.

He was called to the English and Nigerian Bars in 1967 and 1968.  And so, having dumped the military for the legal business, did he dump the mentality?

Would he have been better as a military General? Nigerians may never know what has been lost.
He may have unwittingly turned his retirement into a freedom ceremony, the type organised for mechanics, welders, tailors and sundry artisans.

For a man who had committed 44 of his 70 years on earth into judicial service, Justice Katsina-Alu,  Chief Justice of Nigeria, CJN, is exiting on a generally acknowledge low.

Did Katsina-Alu have to bow out in this fashion? ‘No’ would be a resounding response!
Is he bowing out pursing the cause of justice? Another ‘No’ would be the apt response!

To be fair, Katsina-Alu has been generally acknowledged as a jurist of immense wisdom.
However, the stasis that appears to be the immediate legacy that he is leaving behind belies any form of allusion to sagacious jurisprudential appellation on the retiring Chief Justice.

Differences in perception
As Katsina-Alu retires today, it would be fitting to do a synoptic recapitulation of how he got himself to this generally acknowledged sorry situation.

What many have failed to realise so far, is the fact that the string of animus between  Katsina-Alu and now suspended President of the Court of Appeal, PCA, Justice Isa Ayo Salami, started December 16, 2009, a day the two former classmates at the Law School, appeared before the Senate for screening into their respective offices.

Whereas Katsina-Alu was nominated to take over from  Justice Idris Legbo Kutigi, who was to retire on December 31, Justice Salami who was hitherto serving in acting capacity was screened by the Senate to  take over from Justice Umaru Adbullahi as substantive PCA.

That event suggested individual differences, especially as it related to the issue of perception.
For instance, when they were asked questions relating to a 70-year retirement age of judges and time-frame for disposing of election petitions before swearing in the winners, Katsina-Alu suggested that “a few more years added to the retirement age (of 70) will do no harm to anyone”.

Salami, on the other hand, cried blue murder, insisting that increasing the retirement age might impair judges’ sound judgements.  He said they should, “leave the retirement age at 70 because the standard of living here does not support increase in retirement age as we have in the developed countries where medical facilities and health care delivery are of high standard”.

Both men equally offered different perspectives on the  time frame for disposing of election petitions before the swearing in of the winners of  elections.

Whereas Katsina-Alu noted that lingering petitions have become a distressing feature of the nation’s justice administration and would be addressed if politicians learn to accept defeat, Salami suggested the insertion of a provision in the constitution to the effect that if a petition goes on appeal, the winner should not be allowed to take office until the matter is disposed of.

According to Katsina-Alu, “My personal view is that we should finish every case arising from election before those who are going to take over are sworn in as is done in many countries”.

On the other hand, Salami said: “I will suggest a provision be made for swearing in and if the matter goes on appeal, he (winner) should not be allowed to take office until the matter is disposed of”.

Meanwhile, the then CJN, Kutigi, swore both men into their respective offices on December 31, sequel to their appointments by the late President Umaru Musa Yar’Adua, who acted on the recommendation of the National Judicial Council, NJC.

Sowing the seeds of a crisis
Though these two legal eggheads successfully masked their aversion for each other, the bubble finally burst on February 18, 2010, a day Katsina-Alu queried Salami over his alleged refusal to disband the panel of justices handling the Sokoto State Gubernatorial Election Appeal, a move that was considered legally absurd by the PCA who saw it as an attempt to usurp his powers, considering that it was the appellate court that had total jurisdiction over governorship disputes at that time.

In an unanimous decision of the Court delivered on April 11, 2008 and read by Belgore, JCA, the appeal was allowed. The judgment of the Election Tribunal, Sokoto, was set aside and the election and return of Governor Wamakko was nullified.

The Court ordered the Independent National Electoral Commission, INEC, to within 90 days, conduct fresh governorship election in Sokoto State, adding that only valid candidates involved in the annulled election should participate in the fresh poll.

The fresh election ordered by the Court of Appeal, Kaduna, was held on May 24, 2008, and the Peoples Democratic Party, PDP, and its candidate, Governor Wamakko won again, a situation that warranted the Democratic Peoples Party, DPP, and its candidate, Alhaji Dingyadi, who lost, to proceed again to the Election Tribunal in Sokoto for redress, contending that by virtue of the earlier judgment, Wamakko ought not to have participated in the re-run election as he was not qualified to contest the 2007 election in the first place.

The Governorship Election Tribunal, Sokoto, again dismissed the petition without deciding the issue of the disqualification of Governor Wamakko, hence the petitioners appealed to the Court of Appeal Sokoto Division, which was established after the decision of the Court of Appeal, Kaduna.

However, before the appellate court could enter verdict in the matter, counsel to Wamakko and INEC, Mr. Alfred N. Agu and Mr A.B Mahmood, forwarded two petitions dated February 15, 2010, to the CJN, alleging judgment leakage, an allegation that was relied upon by the CJN to seek an immediate disbandment of the panel.

Following the refusal of the PCA to disband the panel, the CJN, ‘arrested’ its judgment and subsequently dismissed Dingyadi’s petition as grossly lacking in merit.

A Chief Justice of Many Controversies
Some of the controversies to his credit, range from alleged falsification of age, illegal arrest of a ripe appellate court judgment, unholy promotion of a sitting Court of Appeal President, CPA, to the Supreme Court bench, alleged judicial recklessness and judgment malpractice in a gubernatorial election petition appeal clearly outside the ambit of his jurisdiction, suspension of a CPA, swearing in of an Acting PCA regardless of a subsisting court action, friction with the Nigerian Bar Association, NBA, over the investiture of 30 Senior Advocates of Nigeria, SANs, just to mention a few.

It is on record that Nigerians were on February 21, 2011, jolted with banner headlines in several newspapers, alleging that investigations into  “Supreme Court of Nigeria’s staff Nominal Roll and current list of council members and their expiration date”, suggested an allegation that the CJN might have falsified his date of birth with a view to prolong his retirement date.

Though the allegations were that his original date of birth was pined at May 28, however, the Supreme Court, in a statement it issued on February 24, signed by its Chief Registrar,  Mr Sunday Olorundahunsi, dispelled the rumour, contending that it was “an attempt to discredit and ridicule the Honourable Chief Justice of Nigeria.”

Contending that it was “unethical for an important story bordering on the conflicting dates of birth and retirement of His Lordship (as he was) to be made public without verifying the authenticity or otherwise”, the apex court, which is equally presided by the accused person (Katsina-Alu), went ahead to give its own account of the story.

It maintained that, “for the benefit of the public, I wish to reiterate that from our records, Hon. Justice Katsina-Alu, was born on  August 28, 1941.

”For the avoidance of doubt, his Lordship (‘as he then was’) will attain the constitutional retirement are of 70 years from the Bench on  August 28, 2011.

”Further verification of the date of birth of the CJN can be made at the National Judicial Council, NJC (a body he equally presided over) that has the bio-data of all judicial officers in the federation.”

The Man, Katsina-Alu
Meantime, a quick look at the said genuine records of the retiring CJN, which was made available to Sunday Vanguard by the Supreme Court, shows that prior to his legal studies and subsequent rise to the apogee of his legal career, Katsina-Alu had military training  in Nigeria and in England.

His training at the military training college in Nigeria and at Aldershot in England spanned from 1962 to 1963.

After his elementary education at  RCM Primary School, Aduku, Benue State, from January- June 1951, St. Ann’s Primary School, Adikpo, Benue State, from July 1951-December 1952, St. Patrick’s Primary School, Taraku, Benue State from 1953- 1955, he eventually obtained his First School Leaving Certificate.From there, he proceeded to Mount St. Michael’s Secondary School, Benue State, where he had his Secondary School education between 1956 and 1961 and secured the Cambridge School Certificate.

After his secondary education, Katsina-Alu pursued his legal training at the Law Faculty of the Institute of Administration, Ahmadu Bello University, Zaria, from 1963-1964, after which he travelled to London.

He attended Inns of Court School of Law, Gibson and Weldon College of Law, School of Oriental African Studies, University of London, from 1964-1967, where he obtained the Degree of Utter Barrister. The retiring CJN who was called to the English Bar in October 1967 and the Nigerian Bar on June 28, 1968, also worked as a Legal Officer as the Nigerian Ports Authority, Lagos, between 1969 and 1977. Barely a year he left  NPA, Katsina-Alu became the Attorney-General of Benue State in 1978, a position he held until 1979 when he was appointed a Judge of the Benue State High Court.

From the High Court of Benue State, he was elevated to the Court of Appeal in 1985, where he served until November 1998, when he was appointed a Justice of the Supreme Court.

Katsina-Alu became the Chief Justice of Nigeria on December 31, 2009 after he had spent 11 years on the Supreme Court Bench.  Born on August, 28, 1941 in Ushongo, Benue State,  he is the 10th indigenous CJN since independence and one of the more than 80 Justices that have sat on the bench of the Supreme Court since its inception in 1956. A father to many children and grandchildren, fate played foul on him last May, when his wife of many years, Lady Mimidoo Katsina-Alu, was killed after a tree fell on her in their country-home in Ushongo, Benue State, during a wind storm.

A needless war of Attrition
Meanwhile, should all the controversies that characterised the tenure of the outgoing CJN be arranged in their chronological order of national embarrassment, pundits will readily agree that the uncanny feud that later ensued between him and the suspended PCA, Justice Isa Ayo Salami, will stand out as the lead.

As if their relationship was not frosty enough, the retiring CJN, in what many described as an absurd move, recommended that the PCA should be promoted to the Supreme Court, an action that further fanned the embers of disunity in  judicial circles.

In his bid to resist the ‘unholy-promotion’, Justice Salami dragged  CJN, NJC and Attorney-General of the Federation, AGF, before a Federal High Court in Abuja, alleging subterranean plot to by the CJN to “push” him to the Supreme Court bench, a move he termed “Greek gift”.

He deposed to an affidavit at the high court wherein he raised grave allegations of corruption against the CJN. However, before hearing could commence on the case, the NJC mounted pressure on him to withdraw the suit, promising to investigate the matter, an exercise that took five months.

Remarkably, the same withdrawn affidavit formed the bedrock upon which the NJC finally pronounced him guilty on the premise that all the depositions therein were false.

While indicting the PCA of engaging in unethical conduct capable of eroding public confidence in the integrity and impartiality of the judiciary, the council totally exonerated the CJN of the alleged ‘judicial recklessness’, adding that he “acted in good faith and was motivated by the apparent urge to protect the administration of justice and avoid breach of peace when he directed that the judgment in the Sokoto Gubernatorial Appeal be ‘put on hold’ pending the investigation of the petitions he had received on the matter.

NJC, in a statement  on August 10, maintained that, “the allegation made by the Hon. President, Court of Appeal, Hon. Justice Isa Ayo Salami, OFR, that the Hon. Chief Justice of Nigeria, Hon. Justice Aloysius Katsina-Alu, GCON, instructed him to direct the Sokoto Gubernatorial Appeal to dismiss the appeal by the Democratic Peoples Party of Nigeria is not true. “Therefore, the Hon. Chief Justice of Nigeria was exonerated of the allegation of interference with Court proceedings in the Sokoto State Gubernatorial Election Appeal.

“Having, therefore, established that the allegation/complaint by the President, Court of Appeal, Hon. Justice Isa Ayo Salami, OFR, against the Chief Justice of Nigeria, Hon. Justice Aloysius Katsina-Alu, GCON regarding the Sokoto Gubernatorial Election Appeal was false.

”Council decided that it is misconduct contrary to Rule 1(1) of the Code of Conduct for Judicial Officer of the Federal Republic of Nigeria.

“Thus Council further decided as follows, that, (1) the Hon. President of the Court of Appeal should be warned for such unethical conduct which eroded the public confidence in the integrity and impartiality of the Judiciary; and (2)apologise in writing to  the Hon. Chief Justice of Nigeria and Chairman of National Judicial Council, Hon. Justice Aloysius Katsina-Alu, and National Judicial Council within a week from the 10th day of August, 2011.”

Salami’s Grouse
Thrown into a dilemma, Justice Salami had no option than to re-approach the High Court for redress, in view of the fact that apologising would automatically nail him to a criminal offence of perjury punishable with imprisonment.

He equally joined the acting chairman of  NJC, Justice Dahiru Musdapher, Justice Umaru Abdullahi, Justice Emmanuel Ayoola, Justice Dominic Edozie, Justice Michael Akpiroroh, Mrs. Rakia Sarki Ibrahim, Justice Ibrahim Ndahi Auta, Justice Kate Abiri and Justice Peter Umeadi as defendants in the suit.

Salami argued that NJC was improperly constituted on  August 9, 2011, when it sat and received the report of the three-man panel chaired by the ninth Defendant and that as such all actions, steps and decisions reached on the said date are illegal, null and void.

However, two days after the case was instituted and the public drama that trailed the initial refusal of the CJN and  NJC to accept service of the court processes, the legal body still went ahead to not only suspend the PCA but equally persuaded President Goodluck Jonathan to appoint Justice Dalhatu Adamu as  Acting PCA.

In what many dubbed a pre-determined action, barely 24 hours after he received the NJC recommendation for Salami to be suspended, President Jonathan approved it, while the outgoing CJN as early as 8:45 a.m. the next day swore in an acting CPA.

Both actions of the President, NJC and the CJN, are currently a subject of litigation before an Abuja High Court presided by Justice Donatus Okorowo, of which hearing was fixed for September 7.

Taking on the NBA
Even at that, the controversy surrounding the retiring CJN is far from over!
In the twilight of his career, as if there was an unseen force pulling him to the altar of judicial ignominy, the CJN decided to engage in an unnecessary fisticuff with the Nigerian Bar Association, NBA, over the investiture of 30 newly – appointed Senior Advocates of Nigeria, SANs.

His loggerhead with  NBA commenced right from the selection process of the SANs to their confirmation date.

Despite threat by NBA to boycott the swearing in of the SANs should the event fail to hold on September 19, which was the original date slated for the event, Katsina-Alu, in his characteristic manner, single-headedly abridged the date to last Friday, stressing that the occasion would mark his last formal assignment, vowing that nothing would deter him from doing so.

According to a statement that was signed by  Deputy Director of Information at the Supreme Court, Mr Festus Akanbi, Katsina-Alu maintained that “the newly-appointed Senior Advocates of Nigeria will be sworn in, as earlier announced, on Friday,  August 26, 2011, at 10:am, at a special Court Session of the Supreme Court of Nigeria”, adding that, “all the information earlier disseminated to our esteemed invited guests and the general public remain valid.”

It would be recalled that the 30 legal practitioners were on July 17, conferred with the rank of SAN by the Legal Practitioners Privileges Committee, LPPC, which is equally headed by CJN. Their confirmation was sequel to an out-of-court settlement reached between NBA, and LPPC.

NBA had kicked against an initial 62-man list of legal practitioners who were ab-initio pencilled down for the rank, contending that the CJN sidelined the due process of the law in compiling the list.

NBA, which argued that it was not carried along in the process, specifically prayed a Federal High Court in Abuja to void the list on the premise that it was constituted in total disregard to the provisions of section 7 of the Legal Practitioners Act.

It equally urged the court to determine among other things, “whether the defendants, particularly  LPPC, complied with the mandatory provision of paragraph 12-(1) of the Guidelines for the appointment of Legal Practitioners to the rank of Senior Advocate of Nigeria made pursuant to section 7 of the Legal Practitioners Act, in the appointment exercise to the rank of SAN for the year 2010-2011”.

Nevertheless, noticing that the suit would attract him public opprobrium, the CJN and  LPPC, courted  NBA to withdraw the suit, even as the initial 62-man list was pruned to 30.

Thus, at the resumed hearing of the suit on May 16, counsel to  NBA, Mr Emeka Obegolu, informed the presiding judge in the matter, Justice Gabriel Kolawole that all the parties decided to settle the matter out of court.

Following terms of settlement the parties subsequently filed at the High Court registry on May 31, the trial judge discontinued further hearing on the suit, though he adopted the said terms of settlement as the judgment of the court on the matter.

In view of the development, the Chief Registrar of the Supreme Court who also serves as the Secretary of  LPPC, Mr Sunday Olorundahunsi, on July 17, while unveiling their names, announced that they would be sworn in on September 19.

However, the CJN insisted on doing it in his usual controversial way! A decision that was greatly inveighed by NBA, which maintained that the date clashed with its general conference in Port Harcourt.

The legal body further queried the urgency on the part of the CJN, even as it noted that it would not be in the interest of the celebrants to host the event within the Muslim Ramadan period.
NBA insisted that, “it is a tradition to begin the legal year of the Supreme Court of Nigeria with the swearing in of new Senior Advocates of Nigeria”, adding that Friday would not mark the beginning of a new legal year.

Consequently, NBA vowed to boycott the ceremony, vowing it would not acknowledge the rank on any of the 30 appointees that present him/herself before the CJN on Friday for as a SAN. The 30 SANs were sworn in last Friday.

No matter the angle one looks at it from, the outgoing CJN, would always be remembered as the most controversial ever! C-O-U-R-T!