As regard the Supreme Court, the highlights of my time in the Judiciary was probably when I was sworn in as a Judge. Serving at the Supreme Court, I didn’t really see any major highlight.

At your Book launch upon your retirement from the Supreme Court last year, Chief Afe Babalola, SAN raised the issue of upward review of the retirement age of Justices of the Supreme Court. Would you support this? What of the High Court which some claim should be increased to age 70?
Yes, I support it. I think that Justices of the Supreme Court and Court of Appeal should retire at 75, and High Court Judges should retire at 70. My reason for this is that, although we might look at it differently, I have always supported and advocated for increment in the retirement age of Judges. Judges mature with age.

It is obvious that there is urgent need for reform in the Judiciary, starting from curbing the spate of conflicting court orders, and what is said to be judicial corruption, to an increase in the salaries and allowances of judicial officers which have remained stagnant for about 14 years or so, from the lower to the highest courts. Many believe that the call to the Nigerian Judiciary is a call to poverty. Even the Vice President, Professor Yemi Osinbajo, SAN has stated on a number of occasions that remuneration of judicial officers should be benchmarked against that of the Legislature. Do you agree? What about the retirement package? Accommodation? Some also argue that remuneration should be staggered according to the years of service; that for instance a newly appointed Judge should not earn the same salary as a Judge of 10 years standing and so on, like it is done in Britain. Kindly, share your thoughts on this

Then, on conflicting decisions, very soon a lot of conflicting decisions will come up when the elections and primaries start.

I have always held the view, for instance, that candidates of the APC contesting between themselves for who the real candidate is; I say, all such cases should go to one Judge! There is no point giving all such cases to several Judges.

Anybody who has any of such cases and knows its before another Judge, should send such a case back to the Chief Judge for reassignment to the Judge handling such cases. So, it will be with the PDP, as to who won the primaries, who didn’t win. All should go to one Judge. That is the only way you’ll stop all these conflicting decisions.

On salary packages for Judges, you mentioned being staggered. No, I won’t support that. A Judge is a Judge. I won’t support that a Judge should earn a higher salary than his brother Judge who just got appointed into the Bench. Every Judge should get an equal amount, but it should be enticing.

What the Vice President said is true. It is also true that, a call to the Judiciary is a call to poverty.

Oh really?
Yes.

So, all you retire with is just pension?
Yes. Its just pension.

Vehicles?
Oh yes, you take your vehicles. So, its your pension and your vehicles.

When I was going over the Preface to one of the books I wrote, I realised that former Chief Justice of Nigeria, late Justice Ayò Irikefe (of blessed memory) had been conferred with GCFR, like the Nigerian Presidents are. I went back to check, and I saw that today, CJNs don’t go past GCON or CFR, thereby putting the Executive on a higher pedestal than the judiciary. How do we make it as it should be?

It has not always been like this. In the 60s, my father was a Judge. Nobody gave them cars. They bought their own cars with their own money.

A Judge then was earning €3576.91 a year! The Chief Justice of Nigeria was getting €4530.76. The Central Bank Governor was not getting up to €953.84 a year. But now, you can’t compare a Judge with the Governor of Central Bank.

When the military came, all these things were chopped off, one by one. Let me give you an example. When you are appointed a Judge, lets say 1964; you are sworn in, the representative of the Public Works Department came to you and take you to your quarters. Your quarters were well furnished with everything.

So, the Chief Judge of the State didn’t go to the Governor, cap in hand to buy his car. He didn’t go to the Governor to say, I need car, I need this, I need that. You didn’t have that in those days. Then this thing started about the independence of the Judiciary. Now you have to go cap in hand. That is where all these things started.

Today, you see some Judges afraid to offend the Governor, and all that. But, that is not how it should be. A Judge should see and say things as they are. But, its easier said than done. Because the Judge knows he has to go to the Governor to ask for car, ask for house and even ask for money to travel abroad for medical attention.

Judges in that old era, were not afraid. They were independent. All the money for the Judiciary, was with the Judiciary. They spent it their own way, but not now.

What steps must be taken for the Judiciary to be financially independent? How can the Judiciary be restored to its former place of glory?
That is what I support! At the beginning of every year, all the money for the Judiciary, should be given to them. The Judiciary should spend their money in their own way, just like how the Legislators spend theirs. And the Executive too. That is what separation of powers is all about. It’s not about one section of the government, lording it over the other.

How can the wheels of justice move faster in Nigeria, especially in the Supreme Court, where it can take years for a matter to get there and be concluded? Should the Constitution be amended to increase the number of Justices, or should the matters that go to the Supreme Court be streamlined? Kindly, share your thoughts on this thorny issue
I am of the opinion that, we should bring in timelines on all proceedings in Nigeria. For example, the sort of things that go on with election petitions. Any case that is filed in a High Court must not last beyond a certain number of years. Maybe you say one year and five months. Then the Court of Appeal, one year. The Supreme Court one year or two years maximum. That is the only way you quicken this process of cases being concluded fast. A similar thing goes on in Malaysia, where they have time limits, 15 months from start to finish. From High Court to the Supreme Court.

Before in election petitions in Nigeria, an election would be held one year and while the case is still in court, the next election is holding. So, they brought in this provision where the Tribunal has 180 days to conclude. Court of Appeal has 60 days and the Supreme Court has 60 days, and its all over. But, when you start having people having all the time in the world to do whatever they want to do, that is when you start having adjournments and things like that. We have to put a stop to that.

Judicial autonomy has remained a live issue in Nigeria. Despite the judgement of the Apex Court granting judicial autonomy, most States have refused comply. Now, the Supreme Court has thrown out Executive Order 10. What, in your opinion, is the way out of this quagmire?
The way out it is what I have just said. Give the money for the Judiciary to the Judiciary. There will be no need for any Chief Judge to go to any Governor. It has nothing to do with the States.

The debate about technical justice versus substantive justice never ends, despite several authorities that say that courts should shy away from meting out technical justice. Like take for instance the Adeleke v Oyetola Gubernatorial election case, where the matter was dismissed on the fact that the Tribunal Judge who read the lead judgement was absent on one of the days of sitting, and not on the merits of the case. Being that it was an election petition, and it is sui generis with some of the rules of evidence applying more loosely than in a pure civil matter, should the justice of the case not have been paramount?
I agree with that observation. But, in the circumstances, there was nothing that could be done. Let me explain.

The issue in that case, was whether a Judge who was on the panel and who did not sit when two witnesses on the other side were taken, can come back and sit and write the lead judgement. That was the issue. No other issue!

Secondly, he never saw the witnesses to comment on their demeanour.

Alright, if this happened in a regular setting, what would have happened would have been to call back the two witnesses who gave evidence, to come and give evidence. Then the Judge would hear them and write his judgement! Why could this not be done in this case? The Tribunal had 180 days. The Court of Appeal highlighted this fact, that these people were denied fair hearing. Then 180 days is gone. Then the Supreme Court had another opportunity of 60 days. These election petitions come to the Supreme Court in most cases, between the 50th and 60th day. That is why the Supreme Court writes its judgements and says things like ‘Appeal allowed. Reasons will be given later’.

Because, you cant given reasons within that short period.

If you say election petitions are ‘sui generis’, you should overlook the law and overlook evidence, and just give judgement on the basis of substantial justice, how will you arrive at the right judgement? How will you overlook the Constitution that says it must be done within 60 days? You can’t overlook the Constitution. You can’t overlook the Evidence Act.

Why didn’t this Judge send the case back? This Judge who gave that judgement is Justice Obiora. He is a Judge in Anambra. It’s just because of the procedure. You can ask him, and he will tell you that it has nothing to do with the signing of records or any of such things. The question was ‘did you sit?’ its as simple as that!

Chief Olanipekun, SAN was on the other side said: ‘I have been denied fair hearing, I have been denied fair hearing’. There is nothing you can do! When you have been denied fair hearing, the whole proceeding is a nullity. It’s as simple as that. Very elementary.

So, till today, no court has decided who won that election. The results that Oyetola is using to stay there is the result of INEC, because of all the technicalities. That is why I am of the view that going to court to determine who won and election is all rubbish. INEC should be able to rise up to the occasion, and everybody takes it and goes away. You don’t need to take election petitions to court, to determine who won and election. Let INEC say who won an election, and leave the court out of it.

The issue of the constitutionality of virtual hearings. There was the case in which the Attorneys-General of Ekiti and Lagos brought the matter before the Supreme Court. What was the actual decision in that case? Why was the Chief Judge of the Federal High Court still waiting for clarification from the CJN at the height of the Covid-19 pandemic, when other courts were issuing practice directions that there should be virtual hearings?
I wrote the lead judgement, and it was two lines. That it is not unconstitutional.

Which means its constitutional?
Yes, and everybody said ‘I agree, I agree’. There was no dissenting voice! So, the Chief Judge of whatever court doesn’t need to wait for anything. He just needs to say I am relying on the Supreme Court judgment. that is all he has to do.
Which means its constitutional?

Yes, and everybody said ‘I agree, I agree’ .There was no dissenting voice!
Why does the CJ have to wait for the CJN? That is the law of Nigeria, that judgement. They are bound by the judgements of the Supreme Court.

So, the Chief Judge of whatever court doesn’t need to wait for anything. He just needs to say I am relying on the Supreme Court judgement. That is all he has to do.

Maybe his stand was before the judgement of the Supreme Court.
Oh, ok. Because now I don’t hear anybody saying anything against virtual hearings in any court.

Kindly, comment on two major events that have shaken the Supreme Court. First, the invasion of the residences of some of its Justices (and other Judges) in 2016, and more recently, that of your sister Justice, Mary Peter-Odili; and the unceremonious removal of a serving CJN?
Those are incidents that were very bad for the Judiciary, they demystified the Judiciary. To recover from that, I don’t know how many years that will take. I don’t know.

These are the type of things that make young people say, they don’t want to be Judges. I was at the Law School, the day before yesterday, and someone gave a speech about career choices. I asked them, if anyone wanted to be a Judge. Not one! Not one wanted to be a Judge. I asked them why, and they were just looking at me. The Judiciary has some mystic about it, but people going out of their way to pull it down is something that is worrisome.

We were at the Kole Aluko memorial lecture. Kole Aluko would stand, and make sure that the Judiciary is respected. I never heard Rotimi Williams or G.O.K Ajayi tried to pull down the Judiciary. The Vice President and most of the speakers said that at the lecture, said that they don’t support pulling down the Judiciary. The Judiciary, anything you find wrong with the Judiciary, you seek audience with the Chief Judge or the CJN, and those things will be resolved behind close doors. You can’t begin to insult the Judiciary all over the place. You can’t.

As the Chairman of the Body of Benchers, what exactly is your role and that of your Body? Were you consulted before the recent legislation was passed by the Senate, that six more Law School campuses should be added on to the existing six (the seventh is under construction in Port Harcourt), when the existing campuses are already grossly underfunded and need serious revamping? The Council of Legal Education had said last year that such a decision should be theirs, and they do not require any new campuses for now. Kindly, share your thoughts on this
The Body of Benchers is the highest decision-making body in the legal profession. What they basically do is that they call students to the Bar, and the discipline of Lawyers.

As regard building additional campuses all over the place, I was not consulted. But, you have a committee in the House of Representatives and in the Senate, the Judicial Committee. I think it emanated from them. They should have liaised with us, and they didn’t.

Do you think more campuses are needed?
Oh, that is a tough one. Because some campuses are overcrowded. About 4,000 students are called to the Bar every year. When you say ‘do you think it is needed’, people are likely to tell you things like, students that read law are from one side of the country. There are people from the other side. It’s a delicate thing. Its something that should be discussed openly.

The argument is that, already the Law School is underfunded. Take for example, the Yenagoa Campus; apparently there is hardly anything there. In fact, the Governor of Rivers State, in constructing their own campus in Rivers State donated the sum of N5 billion to help Yenagoa Campus. Even looking at Lagos Campus, it looks like it is in dire need of revamping. It looks rundown. Apparently Lagos campus is even understaffed, and short of Lecturers. They took a few Lecturers from Lagos and posted them to another campus, and they have not been replaced. The point is that the ones we have on ground, you haven’t taken care of them properly, and then you want to start building news ones in places that don’t even have airports. Who even wants to be travelling on the road and be kidnapped? What is the sense in this decision?

That is why I said we have to be careful about how we build other campuses. That should be discussed more openly. But, I appreciate all your observations. It is true.

Some believe that there should be another body set up, with the sole mandate of disciplining judicial officers. That it should not be the NJC, because not only is the NJC bogged down with so much already, sometimes it is awkward when members of the NJC are the ones involved in the petitions. Kindly, comment on this.

The buck must stop somewhere. If you set up another body like NJC to discipline Judges, you have to determine who are the people that would be in that body. Who would be the Chairman? Should it staffed by retired Judges? I don’t know.

Suggestions have been made about creating divisions of the Supreme Court. Right now some cases at the Supreme Court are already adjourned to as far away as 2024. So, the suggestion has been that if three divisions can be created, like in Lagos and one in the East, it would help reduce the burden on their Lordships at the Apex Court. Although this might require tinkling with the Constitution. Is this something you foresee in the near future?
I have heard about it. But, one reason why people involved in this kind of agitation drag their feet to push to implement, is that they are afraid of conflicting decisions. Because that is the final court. So, if you have one in Enugu, one in Lagos and one in Abuja, there is a strong possibility that, that is when you’ll likely be having conflicting decisions. That is the reason against creating divisions of the Supreme Court.

What about a situation where the Supreme Court is divided, so that the panels still sitting in the same place; but, there is a Constitutional Court to handle matters of maybe policy or Constitution, while the panel is doing other cases?
That may involve having more Justices.

Yes. But, within the same place, so that the issue of conflicting judgements for one, does not arise
Yes. That makes more sense.

Now, the Apex Court is apparently short-staffed. Some of the Justices have stepped down. Like your good self who retired last year. Right now, there are about six vacancies and they have called for applications. They listed the different regions and how many people can apply from each region. Do those Justices have to be taken from the Court of Appeal? Can anybody not apply?

There is a strong push for SANs to apply. It has been on for quite some time. But, when you want to go to the Supreme Court, the people who are being considered are usually Court of Appeal Justices, and what they look at is their judgements. So, what would you look out for in a Senior Advocate?

The cases he or she has handled?

Yes. Something like that. I heard from good source that when you want to appoint people to the Supreme Court in England, they are made to go through series of interviews. I was even looking at the appointment of Justices in South Africa. They were really grilled every day!

At the Kole Aluko Memorial Lecture, the Vice President told us that if you want to become a Judge in England, there are about 17 different hurdles you have to surmount, to be able to get there.

When I was there, everybody who got to the Supreme Court had the same background. High Court, Court of Appeal and then Supreme Court. But, if you have people from the Universities or SANs, then you start getting a different outlook in the final product, the judgement.

The issue of Judicial Review, that is, the Supreme Court being unable to review its own judgements. The rules have changed, like the Pencil Rule of old days. There are now exceptions or situations where the Supreme Court reviews its judgements.