A Senior Advocate of Nigeria, Isiaka Olagunju, speaks to AYOOLA OLASUPO on why some governorship candidates lost their appeals at the Supreme Court and why the election of some incumbent governors was upheld among other issues
The last general elections have raised concerns that there is a need for the Electoral Act to be amended. While some have said that the provisions of the Act should not be tampered with, others said it is a necessity and should be expanded by way of an amendment. What is your thought about this?
Amendment of the law is not sacrosanct except there are needs for it. The Electoral Act was started in 2002 and it has undergone several amendments since that time until we have the Electoral Act 2022 as amended. Of course, there are improvements from that of 2002 compared to 2022. If there are needs to amend it, there are areas of amendments. I don’t see anything bad in that, but that amendment may be used to achieve an aim. What do you want to achieve? Which area needs amendment? If that is achieved, I don’t see anything bad in that.
There are concerns that the Supreme Court is often overburdened, and the burden is placed on it because of the provisions of the Constitution. Do you also support the need for the Supreme Court to be decentralised to reduce its burden?
I don’t believe in the decentralisation of the Supreme Court. We should have one Supreme Court of Nigeria. The Court of Appeal has many divisions across the states in this country; sometimes the Court of Appeal of Lagos State may give a decision and that same issue may be taken to a Court of Appeal in Kano State and it will give a different decision on the same matter. So, when we now have a decentralised Supreme Court, then there will be divergent judgments from the Supreme Court. I don’t agree with the decentralisation of the Supreme Court. What I think we should do is that some disputes should not even get to the Supreme Court at all. Those are the ones that we need to criticise and say ‘Look, this issue should not get to the Supreme Court and everything should end at the Court of Appeal.’ That is my opinion about that.
What kind of issues are you talking about in this regard?
All pre-election matters should end at the Court of Appeal and shouldn’t get to the Supreme Court except that of the presidency. Whether it is from the House of Representatives or House of Assembly, insofar it is a pre-election matter, it shouldn’t get to the Supreme Court, but all those pre-election matters, even on chairmanship election, shouldn’t be taken to the Supreme Court. All of these should stop. The only one that should get to the Supreme Court is that of the presidency; every other one should end at the Court of Appeal.
How will you react to the suggestion that people are making that the number of justices available at the Supreme Court should be increased?
Let me reiterate one thing. Before judgment is passed at the Supreme Court, that judgment is considered by the Supreme Court justices at their meetings and some judgments require full court which means full membership. As I said earlier, before a judgment is passed, especially when it is a constitutional matter that judgment is discussed at their meetings. What we can do now is to appoint younger hands and more justices at the Supreme Court.
What is your take on the several opinions about the official retirement age for justices which have been said to be a factor depriving young justices from being promoted to the Supreme Court?
Well, the retirement age of Supreme Court justices is put at 70 years because we need experience and knowledge at the Supreme Court. Concerning the extension of the retirement age at the High Courts, it is quite unfortunate that the disadvantages are more than the advantages. I don’t know the credibility of the fact that the retirement age should be extended at the High Court to 70 years. To me, it is a serious one, and many jurisdictions now have been failing at the High Court. If you have practised when you were 45 or 50 years old because it is a daily routine and more tasking than the higher courts where you have a man of 65 or 70 years sitting at 9am, and has several cases, we have some justices having about 1,500 cases on their list and you want a man of that age to look into them. How is that possible? Unfortunately, this is happening. It should have stopped at 65 years for the High Court.
There are claims that the welfare package for judges is not encouraging enough and is one of the factors that make it easy for them to be manipulated. What is your take on that?
Manipulation of any justice by the politician is not because of the absence of welfare but a product of greed. That your welfare is not well taken care of does not mean that you should allow yourself to be used by politicians because you do not represent justice and fairness, and they have sworn an oath to deliver justice without fear or favour irrespective of whoever is before them. I agree with you that the welfare package of justices, especially at the High Court needs to be reviewed. Many things can be done in agreement with what is happening now. It is inexcusable that because your welfare package is low, you now engage in corruption. There is no excuse for that, and I do not agree with that.
Even though some sections of the constitution such as Sections 162 (9), 81 (3), and 84 provide for the financial autonomy of the judiciary, it still seems as if the executive dictates how the judiciary is funded. What can you say about the stance that the allocation of funds to the judiciary should be directly from the Federation Account through the NJC to the Heads of Courts and not through the state’s ministries of finance?
The constitution has provided that the funding should come from the Federation Account directly to them. Unfortunately, that aspect of the constitution is not being used not only by the Federal Government but even by all the state governments. In as much as I agree that it is very sacrosanct that they must obey it, there is one thing that all of us have forgotten. How are we ensuring that the Chief Justices of the states and the Chief Justice of Nigeria are not being monitored during their time in office in terms of how they meet their financial obligations? How many of them are being audited annually to know how much is spent? I doubt if there is any proper platform for auditing their finances either from the federal or state governments so that there will be prudence in their finances.
Are you suggesting that there should be an annual auditing of the statement of account for the allocation received by those chief justices from the government?
Yes, if you receive an amount of money, the account should be audited annually to show that you are prudent and transparent enough. It is just for credibility’s sake. While some are very prudent in their expenses, some are not. As they are the Chief Justices of the states, I don’t think their finances are audited which should not be.
How do you think that can be easily achieved?
As I said earlier, auditing and getting competent auditors to determine the prudence of the spending of the Chief Judge in a state is for credibility’s sake.
In Kano State, the Supreme Court upheld Abba Yusuf’s election after both the tribunal and the Court of Appeal had earlier ruled otherwise. Why did you think the final judgment eventually went in favour of the governor, even when he had lost at the tribunal and the Appeal Court?
There was no surprise there. I have handled matters that I lost at the High Court and the same issue that was ruled against me at the Court of Appeal, but the Supreme Court upheld the argument. So, there is no big deal about that and I can’t talk specifically about the judgment of the Supreme Court on the governorship election because I was not part of the team and I’ve not read the judgment. So, I wouldn’t know specifically the reason why the Supreme Court gave its judgment. There is no big deal about it; sometimes you would even lose at the High Court and the Court of Appeal, and eventually win at the Supreme Court. So, it is not peculiar to Kano State.
Does that mean that there were some inconsistencies that the lower courts failed to recognise while hearing the case?
Maybe the lower courts failed to recognise some inconsistencies which the Supreme Court finally saw. It is possible but there is nothing like you have won at the tribunal and the Court of Appeal and that means you cannot lose at the Supreme Court. That is not the way of the law. So, most of the time, the court always considers what we call true consistent judgment. It doesn’t mean that when there is a mistake at the lower courts, the Supreme Court cannot attend to that mistake or error in the judgment.
All the cases filed by defeated governorship candidates also failed at the Supreme Court. Why did that happen and what did the Supreme Court put into consideration to have ruled in favour of all incumbent governors?
It is not because they are serving governors. The judgments were given based on the facts before the court, and before now, there are precedents on what the court will look at. The Supreme Court is not Father Christmas; so, any case that is ruled for or against you is based on facts before the court. It is very challenging for you to be satisfied with a judgment, particularly the governorship election judgment, but what you need is that you don’t bring anybody as a witness. It must be people, victims, and agents at a particular polling unit that you are challenging in the court, not your collation officers or state returning officers but we have been doing the same thing all the time, calling people as witnesses from the state collation centre. You need to present witnesses from the scene as evidence before the court.
Some thought that the Supreme Court had been compromised in the process of delivering those judgments. What can you say about this?
That’s very unfortunate. The Supreme Court has laid down the conditions before now. It is not peculiar now and the law has been there since on what you need to do before an election can be set aside. Get direct evidence from the person who witnessed that occurrence. If you are challenging results at the polling unit, you must present your polling unit agent as a witness, not your agent at the collation centre or at the ward or state. It must be that agent at the polling unit.
Don’t you think the judgments in one way or the other have dented the image of the judiciary or have boosted the confidence of the masses in the judiciary?
The judgments have not dented the image of the judiciary in any way. There is nothing peculiar about it.
What role can the NBA play as a body towards the implementation of viable reforms for effective and efficient administration of justice delivery in Nigeria?
The NBA needs to be involved particularly in the training and retraining of its members. The NBA should make it mandatory that its members undergo one form of training or the other yearly. It is not the training at the conference but a peculiar training.
