Godwin Sunday Ogboji is a senior constitutional lawyer based in Abuja. In this interview with SUNDAY EJIKE, he bares his mind on the state of the nation’s judiciary and the forthcoming elections.
How would you rate the Nigeria Judiciary in 2022 and what do you think were the low moments?
From all ramifications you look at it, the judiciary in the last one year has performed very okay. I tell you that because what is at the disposal of the judiciary to work with, is very very fundamental. A lot of states are not able to fund the judiciary because the welfare of the Judges and the tools for the Judges to work with, are all in a very bad state in most states of the federation, with the exception of Lagos, Port-Harcourt, Kano and Abuja.
I just came back from a court in Kano state, a Magistrate court to be precise, the facilities there, are nothing to write home about. Taking into cognizance this state of affairs of the situation on ground for Judges, Magistrates and any person that dispenses justice, you will commend them that they have done well.
Most courts don’t have requisite facilities, they don’t have the right electronic equipment, and that delays matters, and they are expected to work within this orbit.
It is difficult. you must now give it to them, that despite all these challenges they face in the discharge of their responsibilities, they still stick to their oath of office and discharge justice as ought to be.
Yes, you cannot say all of them are mindful of the sacred work they do. There are bad eggs in the judiciary. We have low points where unneccesary judgments are being given by courts of coordinate jurisdiction, where from the face of it, they know they don’t have jurisdiction, but they go ahead to give the order. But, the good thing is that, at any point in time, these Judges err, the National Judicial Council (NJC) is up and doing. That is why the judiciary is one of the best places to be because, they don’t spare their own. You might say that they are delayed at times, but at the end of the day, the Judges are punished and disciplined according to the rule.
So, when you talk about performance of the Judiciary, I will give a maximum credit. Why I say so is because of the environment they work in and what they come out with. I am talking about the quality of judgements. Though some of them are watery, the bulk of them are so sound you cannot fault them. The erring ones are also being punished. We have seen them particularly in this election period when ridiculous judgements come out, but at the end of the day, the judiciary has fared beyond expectations, taking into cognizance the poor facilities.
2023 is an election year, as a constitutional lawyer, what do you think the judiciary should do differently to avoid backlash?
That is a very good question because at the end of the day, they say the court is the last hope of the common man. At the end of the day, it is where the aggrieved politicians go to ventilate their grievances.
Even now, we have started seeing ridiculous judgements from a few courts. You have issues of black market injunction or whatever appellation given it, by those who don’t know how the judiciary works.
I want to also urge that if the judicial precedents are followed religiously, there is no electoral dispute that have not been resolved by the Supreme Court. There is no part of electoral dispute brought by any politician that has not, before now, been decided by the Supreme Court.
I urge that the courts should follow judicial precedents as laid down by the Supreme Court. And if need be, they should weigh where the Supreme Court weighed because from time to time, the Supreme Court might change from a previous decision but before that change, the lower courts should adhere to the decision given by the superior courts, the Supreme Court and the Court of Appeal as the case may be.
If we have certainty in judgements, if we have certainty in the way and manner justice is dispensed, we will be sure that people will not backlash. The backlash you have most often is from having different judgements on the same issue from different courts in Nigeria, and it is mainly in election petitions.
If we can insist on judicial precedents like I said, all judgements, all matters, all facts of disputes on election matters have been determined. If you take into cognizance that we have been in democracy for more than 20 years now, since 1999, you will appreciate the fact that there is no aspect of litigation in election dispute that has not been determined one way or the other by the appellate courts.
If these disputes have been determined one way or the other by the appellate courts, the lower courts should not deviate un-necessarily. If we have that, you know that, this is the position of the law. It may not favour you now, but you know how it will favour you tomorrow. If there is no certainty; you will have backlash because this backlash is linked to the fact that, the court is deciding same facts and circumstances, differently from what had been decided.
I urge the election petition tribunals to ensure that they follow judicial precedents. If they follow judicial precedents and there is certainty in their judgements, I don’t think we will have backlash as we use to have before now.
On what ground can the Supreme Court shift from its earlier decision?
There are certain instances based on the circumstances of the matter. There are some judgements that might be delivered that may not accord to the reasons.
Judgements are delivered based on the facts available in court. So, if a similar circumstance comes up with better facts now available to the court, the court might not have a better alternative than to deviate from its earlier decision.
It can also happen if a judgement is given without relevant facts made available to the court or there is a judgement that is against the grain of justice. Let me give you an example, there is a chain in the Supreme Court now that tells you that there is the possibility of the Supreme Court changing from its query. There is an elementary principle of law now that, if a process of court is filed by a law firm and not signed by a particular lawyer known and called to the Bar on behalf of the law firm, that process is bad abinitio, but Agim said, we cannot continue with this, where a litigant has taken his case to a lawyer who inadvertedly made a mistake of not putting his name or signing on behalf of a law firm. That should not continue because there are others that say, once it is signed and the person is not being misled, the process, though defective, should be regularised.
The law as it stands today is, if there is no signature on a particular process, that process is defective and no matter the merit of the case, that process is defective and judgement will be given against that person. That is the present state of the law.
But, there are agitation among the Supreme Court Justices now that you cannot because of a signature inadvertendly signed by a lawyer not called to Bar, rob the case of justice, where the facts and processes from the High Court to the Court of Appeal show that the person whose lawyer made the mistake is deserving of justice.
If some judgements work injustice at the end of the day to the litigant, the Supreme Court might shift from its rigid position, to a more flexible position.
If you give me a process today and I inadvertendly didn’t sign with my name and I sign on behalf of Sunday Ogboji and Co instead of Godwin Ogboji (Esq) with my seal, no matter how good my case is, I will lose that case.
Now the position of the law that is being pushed by the likes of Agim is that even if I signed on behalf of Sunday Ogboji and Co, the fact is, Sunday Ogboji and Co is owned by Godwin Sunday Ogboji (Esq).
The law should take into cognizance that the law firm is owned by a lawyer and even if it is not signed by a lawyer but the law firm, the process should stand. In no time, I can assure you that this will be the position of the Supreme Court and that might become the position of the law.
This is one instance, among several others that the Supreme Court might shift from its earlier decision on law, where the justice of the case wrought injustice to the interest of the parties that brought the case before the court.
What is your take on the constitution of election petition task force and the practice directions for election cases by the Chief Judge of Federal High Court?
That is a wonderful innovation, although other cases suffer seriously at that point in time. Election matters, because of their nature, are time-bound. That brings to rest a lot of agitations and grievances by political actors. These are something that one has to take a look at. That is a very good innovation and I must commend the Chief Judge for that.
I have been in one or two of the election task forces and matters are dispensed judiciously. Before now, because of the nature of Nigerians, you will discover that every part of electoral processes has several electoral disputes. There are some states that have one Federal High Court and most election dispute, because of the presence of INEC and others institutions, are taken to Federal High Court and in some states, you will have only one Judge and you will have 50 to 100 of political cases. There is no way the Judge can handle it.
There are some jurisdictions that have more than one Judge, there are some jurisdictions that you don’t have many election cases, they hijack the Judges of these jurisdiction to jurisdiction where you have high volume of pre-election matters. These Judges sit day in day out and I can tell you confidently, unlike before now, pre-election matters are time-bound. If because there aren’t enough Judges to handle cases, they may not be determined on merit. The grievances of the petitioner might lead to violence and other things because they will say, it is pre-determined that my matter should not be heard.
Because of this task force, that gives you a listening ear, at the end of the day, you will get justice one way or the other. Either you win or you lose, at the end of the day, you have been heard. That mitigates the griviances of litigants. So, I commend Justice Tsoho for bringing this up and I hope it is also allowed to go on, so that, at the end of the day, electoral disputes are dispensed with judiciously within a specific period of time. If you are caught up by time, no matter how good your case is, it cannot be determined one way or the other by the court.
We must commend Justice Tsoho for bringing up this innovation. The practice direction is correct, it is right. It is when you don’t have the opportunity to ventilate your griviances that you will be angry, when you have the opportunity, no matter how unsatisfied you are with the judgement, you have been heard.
Though judgement is not given to you today, somebody else might benefit from your griviances tomorrow. But where you are not given the opportunity to say anything at all, that might lead you to thinking negatively, to go into violence or disruption of the peace of the society.
The essence and purpose of the practice direction and the task force is to ensure that, as many cases as possible are heard. As for me, when there is fair hearing and opportunity to be heard, is a way to deal with situation in the society. I commend the Chief Judge for that innovation.
Do you support specialised courts for corruption cases?
If you do so, that same court will become corrupt, because everybody knows the Judges sitting there. The task force on election matters is an ad-hoc thing. It comes and goes. It is not permanent and election comes once in a while. Corruption issues are on daily basis. It will not be decent to designate a Judge as a corruption Judge to handle corruption matters.
One of the politicians said that, what money cannot buy, more money can buy. If you now keep a person on the spot and you keep saying, lead us not into temptation, every corrupt person will face him alone, whether you like it or not, it will take only the grace of God for that person not to fall into temptation.
So, let it be free. You don’t know where your case is going, you don’t know which particular judge will handle it. I have never subscribed to specialised court for corruption cases, because that same institution could be corrupted by the society in no time.
Some governors are insisting on state judicial council before their Assemblies can endorse the constitution review exercise by the National Assembly. What do you make of returning appointment of Judges in states solely to governors?
I am completely against it. Ordinarily I am not supposed to say this as a lawyer because a federation is supposed to be a federation, where states form part of the federation. The peculiarity of Nigeria is something you cannot wish away. There are some states where undue dominance is apparent. Like the state I come from, Benue state, a particular ethnic group, the Tivs are saying they must hold governorship power, they must be House of Representatives members, Speaker of House of Assembly and Chief Judge as their exclusive prerogative.
If you allow governors to have the sole right to appoint Judges, what is the guarantee that others from different ethnic nationalities can be appointed as Judges in the state. What is the guarantee that judgement would be delivered against the state.
For you to know the gravity and the fact that this should not be granted, look at the state Houses of Assembly. Which one have you seen as vibrant as the National Assembly? Which one have you not seen, under the whims and caprices of the governor of the state? If a state House of Assembly, ought to be independent, and serving as a guide against the arbitrariness of a governor, can be put in the pocket of the governor, how much less the judiciary whose appointments are now solely by the governor. That is for me, though it is against the dream of a true federalism. Every federalism has its own peculiarities. Judges should be appointed by the Federal Judicial Council where merit will be the order of the day, where people that they are going to appoint, will not know where the person is going to be coming from, where Federal Character system will be upheld by the Federal Character Commission. Look at what happened in Gombe recently where the governor deliberately refused to appoint a substantive Chief Judge because of the religion of the person that was deserving of it.
The NJC intervened. You know what happened in Bayelsa State where the governor, because of one thing or the other, refused to appoint a substantive Chief Judge because she was not from that state. But for the intervention of the Federal Judicial Council, you know what would have been the case.
If the state governors have been playing around with the judiciary, you can imagine if powers are given to them, they will appoint only members of their family, their cronies. They might even appoint political office holders or partisan politicians to be Judges.
I completely oppose the governors for insisting that appointment of Judges should be given to the state judicial council and they should not use it, to blackmail the National Assembly. One day, they will leave power. They will become ordinary citizens like me and you and what they are advocating for will also hunt them. Let them see tomorrow and think of the betterment of the society. I urge the National Assembly not to succumb to the blackmail by the state governors because if they do, that will be the end of the Judiciary in Nigeria.
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