Lagos-based lawyer, Mr Jiti Ogunye, in this interview with ADE ADESOMOJU, speaks about the “golden era” of the Nigerian judiciary, which many old practitioners always recall with nolstagia
Members of the legal profession often say the golden era of the Nigeria is gone. What do they mean by that?
When members of the legal community in Nigeria and the legal profession – the Bar and the bench – talk eloquently and with nostalgia about the golden era of the judiciary, they talk about that era in the Nigerian judiciary from the mid-70s following the removal of the Chief Justice of Nigeria, Justice Teslim Olawale Elias, from the Supreme Court by the Murtala Mohammed regime in 1975.
After that era, in the late 70s and in the early 80s, certain jurists were elevated to the Supreme Court and by some strange but fortunate coincidence, those jurists from their separate backgrounds happened to be like a select core of first-class jurists, who had their strength not only in Law but also in humanities, such as Classics and Philosophy.
Those Justices included the likes of Justice Kayode Eso, Justice Chukwudifu Oputa, Justice Otutu Obaseki, and Justice Chuwkueneike Idigbe. They were the Justices who were there when the 1979 election and when the military came back in 1984. Some of the judgements they delivered then were what gave interpretation to the new Presidential Constitution of 1979. Mind you, Nigeria was practising parliamentary system of government. It was Obasanjo that introduced the presidential system, which was an American model. There weren’t constitutional cases before that era. So, we had no precedent to rely on as far as the presidential model was concerned.
It was these Justices that first gave interpretation in cases such as AG Bendel State and the AG Federation, AG of Ogun State and AG of Federation, etc.
When the military struck again, these Justices stood their ground in protecting the civil liberty and rights of Nigerians even under a very difficult military regime.
Can you give some specifics of any of the cases?
One instance was the case of the Military Government of Lagos State Vs Chief Odumegqwu Ojukwu. What was the matter? Ojukwu led the civil war, went on exile and during the period, all the property belonging to the people of Eastern extraction were seized under the then Abandoned Property Edict and Law. Ojukwu’s father was very rich. In fact, at a time he was the once controlling 90 per cent of road transport business in Nigeria. He was so comfortable that when the Queen of England visited Nigeria it was his Rolls Royce the queen rode in. So, he had a lot of property in Lagos, including the one housing the old headquarters of JAMB in Ikoyi, Lagos.
The Federal Government seized these properties but there was one that was not occupied. So, when Ojukwu went into the property and the Lagos State Government wanted to seize the property, Ojukwu went to court. While the court was presiding over the matter, the government went there and forced their way into the property and forcibly evicted Ojukwu. The case went to the Supreme Court and the apex court said although the country was under a military regime, there was still the rule of law. The court descended heavily on the government and ordered the government to leave the property. It said once a matter was submitted to the court for adjudication, even if a restraining order had not been granted, you were supposed to maintain status quo. That was what that decided.
We also had the case of Garba and the University of Maiduguri, which was like a locus classicus at that time for students. That case saved hundreds, if not thousands, of students because it became a refuge and succour for them throughout the military era. This was because students then were not only playing the roles of student unionists, they were also playing, significantly, the role of anti-military activists for which reason the military regime was always breathing down the neck of university administrators to expel those students and that case saved the day.
There were also cases like the Federal Civil Service Commission and Laoye, which was about how the rule of law has to be maintained. It is about when somebody is facing a criminal allegation, an administrative panel cannot try that criminal offence; the case has to go to the regular court for trial. There were also innumerable Gani Fawehinmi cases — Gani Fawehinmi Vs NBA (1) and Gani Fawehinmi Vs NBA (2), etc.
What can you say about the courage and impartiality of those Justices?
The judiciary is truly an arm of government but when the question of the civil liberty of the citizen is being raised, it is not supposed to see itself as an ally of government that exists to protect the interest of government. Rather it has to see itself as an impartial arbiter between the government and the governed, between the ruler and the ruled. And very importantly, when the rulers are military, it has to make pronouncements that can give life to the muffled aspiration of the people to secure their freedom and liberty under the rule of law.
That was what the judiciary was in those trying moments and that was why that era was described as golden. It was an era when soldiers were going to visit the judges to remove them the following day after the judges made a pronouncement not favourable to government. But they continued to do their best and in particular, in many cases, including Tony Nwosu Vs Imo State Environmental Sanitation Authority and many of such cases.
There was this terrible decree during the Ibrahim Babangida era which was called Public Officers Special Provisions Decree No. 17 of 1985. Immediately Babangida came, he knew he was going to have problem with the radical intelligentsia within the universities and other institutions and he felt that he must break the backbone of resistance which was coming from the universities and others. So, he hatched and promulgated the decree very early; Babangida took over power in 1985 and brought the decree in that year. The decree, which was later abrogated when military left, empowered the military to remove any public officer who otherwise could not be removed or retired without attaining the retirement age of 35 years in service or biological retirement age to remove him without recourse to due process if he as the President or his delegate felt it was in public interest to remove such a person. And the court was not to inquire into what constituted public interest. So, once you were removed under that decree, you were gone; you couldn’t go to court. It was that decree they used against Prof. Olorode, and Prof. Iyayi and Prof. Sagay that made them to spend 10 years in court up to the Supreme Court before they got reprieve.
The government used the decree on many lecturers. What the Supreme Court was doing which other courts followed was to admit that the decree truly had an ouster clause that the court should not inquire into the action, but said it would look at it and apply a principle of law that states that any law or statute that has a penal clause such as the one in Decree 17, such law must be construed strictly and narrowly such that if there was any slight departure from the dictate of that law, the court would intervene and strike down the action. In Iyayi case, for example, the decree stated, as I have said, that Babangida or his delegate could exercise the power of removal under the decree; so, the Governing Council purported to have exercised that power to remove Iyayi and they then wrote to Babangida to approve the removal. So, what Aka-Bashorun and Mr Femi Falana took to court up to the Supreme Court was that the decree did not talk about somebody who was alien to the decree exercising the power and seeking approval later. They argued that the decree stated that the military president should exercise that power personally or his delegate, meaning that he must have delegated that power before the actual exercise of that power. Based on that limited principle, Iyayi’s dismissal was nullified at the Supreme Court and it was reported at Part 305 of the Nigerian Weekly Law Report.
Could the judges of then have been more courageous due to their stricter adherence to ethical standard?
Judges of then were courageous in spite of the fact that the military government was there with its shackles of decrees with ouster clauses, with the decree that said nobody must inquire into what the military government was doing, and others. The Nigerian legal profession is very fond of that era, if the truth be told.
Secondly, the era was golden, not just about jurisprudence, not just about the knowledge of the judges and not just about reading their judgments and wondering whether if those judges were Nigerians or ancient English men, but also about their ethics.
Was it about their incorruptibility too?
It was also about their incorruptibility and the era was scandal-free on the bench. They lived the life of judges of the old tradition. They were not unnecessarily co-mingling, but they were speaking through their judgments and they were giving lectures. They were judges of impeccable integrity such that when they even retired they were always calling on them for various assignments and that was why we had the Oputa Panel, the Eso Panel and things like that.
Members of the legal profession often say the golden era of the Nigeria is gone. What do they mean by that?
When members of the legal community in Nigeria and the legal profession – the Bar and the bench – talk eloquently and with nostalgia about the golden era of the judiciary, they talk about that era in the Nigerian judiciary from the mid-70s following the removal of the Chief Justice of Nigeria, Justice Teslim Olawale Elias, from the Supreme Court by the Murtala Mohammed regime in 1975.
After that era, in the late 70s and in the early 80s, certain jurists were elevated to the Supreme Court and by some strange but fortunate coincidence, those jurists from their separate backgrounds happened to be like a select core of first-class jurists, who had their strength not only in Law but also in humanities, such as Classics and Philosophy.
Those Justices included the likes of Justice Kayode Eso, Justice Chukwudifu Oputa, Justice Otutu Obaseki, and Justice Chuwkueneike Idigbe. They were the Justices who were there when the 1979 election and when the military came back in 1984. Some of the judgements they delivered then were what gave interpretation to the new Presidential Constitution of 1979. Mind you, Nigeria was practising parliamentary system of government. It was Obasanjo that introduced the presidential system, which was an American model. There weren’t constitutional cases before that era. So, we had no precedent to rely on as far as the presidential model was concerned.
It was these Justices that first gave interpretation in cases such as AG Bendel State and the AG Federation, AG of Ogun State and AG of Federation, etc.
When the military struck again, these Justices stood their ground in protecting the civil liberty and rights of Nigerians even under a very difficult military regime.
Can you give some specifics of any of the cases?
One instance was the case of the Military Government of Lagos State Vs Chief Odumegqwu Ojukwu. What was the matter? Ojukwu led the civil war, went on exile and during the period, all the property belonging to the people of Eastern extraction were seized under the then Abandoned Property Edict and Law. Ojukwu’s father was very rich. In fact, at a time he was the once controlling 90 per cent of road transport business in Nigeria. He was so comfortable that when the Queen of England visited Nigeria it was his Rolls Royce the queen rode in. So, he had a lot of property in Lagos, including the one housing the old headquarters of JAMB in Ikoyi, Lagos.
The Federal Government seized these properties but there was one that was not occupied. So, when Ojukwu went into the property and the Lagos State Government wanted to seize the property, Ojukwu went to court. While the court was presiding over the matter, the government went there and forced their way into the property and forcibly evicted Ojukwu. The case went to the Supreme Court and the apex court said although the country was under a military regime, there was still the rule of law. The court descended heavily on the government and ordered the government to leave the property. It said once a matter was submitted to the court for adjudication, even if a restraining order had not been granted, you were supposed to maintain status quo. That was what that decided.
We also had the case of Garba and the University of Maiduguri, which was like a locus classicus at that time for students. That case saved hundreds, if not thousands, of students because it became a refuge and succour for them throughout the military era. This was because students then were not only playing the roles of student unionists, they were also playing, significantly, the role of anti-military activists for which reason the military regime was always breathing down the neck of university administrators to expel those students and that case saved the day.
There were also cases like the Federal Civil Service Commission and Laoye, which was about how the rule of law has to be maintained. It is about when somebody is facing a criminal allegation, an administrative panel cannot try that criminal offence; the case has to go to the regular court for trial. There were also innumerable Gani Fawehinmi cases — Gani Fawehinmi Vs NBA (1) and Gani Fawehinmi Vs NBA (2), etc.
What can you say about the courage and impartiality of those Justices?
The judiciary is truly an arm of government but when the question of the civil liberty of the citizen is being raised, it is not supposed to see itself as an ally of government that exists to protect the interest of government. Rather it has to see itself as an impartial arbiter between the government and the governed, between the ruler and the ruled. And very importantly, when the rulers are military, it has to make pronouncements that can give life to the muffled aspiration of the people to secure their freedom and liberty under the rule of law.
That was what the judiciary was in those trying moments and that was why that era was described as golden. It was an era when soldiers were going to visit the judges to remove them the following day after the judges made a pronouncement not favourable to government. But they continued to do their best and in particular, in many cases, including Tony Nwosu Vs Imo State Environmental Sanitation Authority and many of such cases.
There was this terrible decree during the Ibrahim Babangida era which was called Public Officers Special Provisions Decree No. 17 of 1985. Immediately Babangida came, he knew he was going to have problem with the radical intelligentsia within the universities and other institutions and he felt that he must break the backbone of resistance which was coming from the universities and others. So, he hatched and promulgated the decree very early; Babangida took over power in 1985 and brought the decree in that year. The decree, which was later abrogated when military left, empowered the military to remove any public officer who otherwise could not be removed or retired without attaining the retirement age of 35 years in service or biological retirement age to remove him without recourse to due process if he as the President or his delegate felt it was in public interest to remove such a person. And the court was not to inquire into what constituted public interest. So, once you were removed under that decree, you were gone; you couldn’t go to court. It was that decree they used against Prof. Olorode, and Prof. Iyayi and Prof. Sagay that made them to spend 10 years in court up to the Supreme Court before they got reprieve.
The government used the decree on many lecturers. What the Supreme Court was doing which other courts followed was to admit that the decree truly had an ouster clause that the court should not inquire into the action, but said it would look at it and apply a principle of law that states that any law or statute that has a penal clause such as the one in Decree 17, such law must be construed strictly and narrowly such that if there was any slight departure from the dictate of that law, the court would intervene and strike down the action. In Iyayi case, for example, the decree stated, as I have said, that Babangida or his delegate could exercise the power of removal under the decree; so, the Governing Council purported to have exercised that power to remove Iyayi and they then wrote to Babangida to approve the removal. So, what Aka-Bashorun and Mr Femi Falana took to court up to the Supreme Court was that the decree did not talk about somebody who was alien to the decree exercising the power and seeking approval later. They argued that the decree stated that the military president should exercise that power personally or his delegate, meaning that he must have delegated that power before the actual exercise of that power. Based on that limited principle, Iyayi’s dismissal was nullified at the Supreme Court and it was reported at Part 305 of the Nigerian Weekly Law Report.
Could the judges of then have been more courageous due to their stricter adherence to ethical standard?
Judges of then were courageous in spite of the fact that the military government was there with its shackles of decrees with ouster clauses, with the decree that said nobody must inquire into what the military government was doing, and others. The Nigerian legal profession is very fond of that era, if the truth be told.
Secondly, the era was golden, not just about jurisprudence, not just about the knowledge of the judges and not just about reading their judgments and wondering whether if those judges were Nigerians or ancient English men, but also about their ethics.
Was it about their incorruptibility too?
It was also about their incorruptibility and the era was scandal-free on the bench. They lived the life of judges of the old tradition. They were not unnecessarily co-mingling, but they were speaking through their judgments and they were giving lectures. They were judges of impeccable integrity such that when they even retired they were always calling on them for various assignments and that was why we had the Oputa Panel, the Eso Panel and things like that.
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