Periscoping the Kano Judgement, Apex Court Appointments in Focus
While Nigerians are yet to come to terms with the unfortunate judgement of the Court of Appeal, on the Kano State Gubernatorial Election Petition which dismissed the appeal and at the same time, set aside the decision of the Election Petition Tribunal, the nation’s Judiciary has been put to a litmus test, not only about the integrity of our Judiciary, but that of the recruitment process of Judicial Officers, which has come under scrutiny in recent times. Femi Falana, SAN; George Oguntade, SAN; Professor Chidi Anselm Odinkalu and Joseph Otteh dissect the issues surrounding the Kano judgement which has left the jury divided, as some believe the contradictions in the judgement are simply clerical errors that can be corrected under the auspices of the “Slip Rule”, while others believe that the errors go beyond clerical errors, and instead, are a matter for appeal to the Supreme Court whose final pronouncements will correct the errors and lay the controversy to rest. They also give their perspectives, on the ongoing selection process of appointing Justices to fill the vacant positions at the Supreme Court
Kano Governorship Appeal Judgement and its Disastrous Consequences
Femi Falana, SAN
The aggrieved parties have approached the Supreme Court, for appropriate legal redress. To that extent, I can no longer comment on the controversial judgement of the Court of Appeal.
The Slip Rule and the Process for Correction
A typographical error in a judgment is a mistake, such as a misspelled word. In the instant case, there was no mistake in the spelling of any word whatsoever. So, the Court of Appeal did not set out to correct any misspelled word in its judgement. What it did was to correct the contradiction in the judgement, which is permissible under the slip rule. With respect, the court overstepped its bound by removing and replacing the conclusion of the judgement after it had been drawn up, without the consent of the parties.
Once a judgement has been signed and distributed to parties, a court cannot suo motu correct it without inviting the parties to comment on it. Under Order 23 Rule 4 of the Court of Appeal Rules 2021, an application to correct a serious slip in a judgement is required to be made by any of the parties or the court. If the application is granted, a new judgement will be signed and given to the parties.
Matters Arising
Since election petitions and appeals arising therefrom are time bound, the judgement of the Court of Appeal could not have been validly corrected after the mandatory period of 60 days. The error could only be corrected by the Supreme Court, where an appeal has already been filed.
More importantly, the Supreme Court has repeatedly maintained that the nomination of candidates to contest elections is the internal affair of political parties. I am of the firm view that the serious issue to consider, is the legal validity of the decision of the trial tribunal to cancel the votes of 165,000 voters on the ground that electoral officers did not stamp the ballot papers. I am confident that the Supreme Court will do justice to all the parties, by interpreting the law in favour of democracy.
Filling the Vacancies in the Supreme Court
The vacancies in the Supreme Court, should be filled as soon as possible. It is in the interest of justice, to act quickly and decisively. My view is that it is going to be extremely difficult for 10 Justices to hear and determine the avalanche of appeals flooding the Apex Court from the Court of Appeal, in respect of the Governorship elections.
The authorities are required to fill the vacancies in the Supreme Court with senior Justices, Academics, and legal practitioners of experience, integrity, and erudition. This time around, the Senate should screen the nominees and not ask them to take a bow. The Senate must take cognisance of the judgements, or contributions of the nominees to legal development. Their lifestyle and the company they keep, should be part of the criteria to be considered in confirming the nominees.
Femi Falana, SAN
Can the Kano Court of Appeal Judgement be Corrected by the Slip Rule?
George Oguntade, SAN
It is most unfortunate that the recent Judgement of the Court of Appeal in the Kano State Gubernatorial Litigation, has generated and continues to generate so much controversy. I suspect that most of those criticising the judgement, have not even bothered to read and understand same. Rather, courtesy of social media, the obvious error contained in the concluding part of the judgement has been extrapolated and made the basis of vitriolic anger and abuse of the Judges. It is also understandable that recent decisions of our appellate courts, based on technicalities rather than substance, has fuelled palpable anger in the country. The people and not Judges, are supposed to determine the winners of elections.
A careful reading of the judgement, the facts, the evaluation of evidence and analysis of the law leaves one in no doubt as to the true decision of the Court, which is to DiISMISS the Appeal and sack Governor Abba Yusuf. The concluding sentence extrapolated for discourse, to the effect that the issues were resolved in favour of the Appellant and against the 1st Respondent, was an obvious error. This can be corrected by the Court under what is known as the “Slip Rule” in the Rules of Courts generally, and I understand that the error has since been corrected.
It should be understood that Judges are also human beings too, and can therefore, make innocuous errors in their judgements. The Slip Rule is designed to correct such errors, and courts utilise this statutory provision regularly.
A recent example is when the Supreme Court utilised the Slip Rule to correct an error in the May 2022 judgement concerning the APC Chairmanship contest, where an error was made in the names of certain persons by Hon. Justice Mary Peter-Odili. Upon application to the Court, the error was corrected by the Court.
It is rather sad that many elites who know better, even senior Lawyers, have been in the vanguard of misrepresenting the validity of the judgement and making a mountain out of a molehill. In this regard, the recent statement of the Attorney-General of Kano State maligning the Justices in his castigation of the judgement, has been shocking to say the least. He clearly knows better than this. Lawyers owe an obligation to the society at large, to convey the correct position of the law on matters of this nature.
Recruitment of Supreme Court Justices
On the recent nomination of 11 Justices to the Supreme Court Bench, this is indeed, a welcome development and long overdue. The backlog of cases in the Court is huge, and has resulted in inordinate delay in the hearing of appeals over the years. The current Justices are stressed and overworked, putting their health at risk. The new appointments, will lighten the burden of work in the court. My expectation is that the new Justices will appreciate the complexity and enormity of the problems facing the Court, buckle up and get to brass tacks. The appointees are deeply knowledgeable in the law and have demonstrated their competence over the years. I have no doubt that they will prove up to the task.
On a related note, it is important to use this opportunity to state that Appeals to the Apex Court should not be automatic, but should be by Leave as obtains in many other jurisdictions. This will stop the filing of many frivolous appeals with no chance of success, that ultimately end up clogging the docket of the court. This constitutional amendment, is long overdue.
George Oguntade, SAN
Basis to Suspect the Kano Gubernatorial Court of Appeal Judgement
Professor Chidi Anselm Odinkalu
The fact of the matter is that there is now ample material on the basis of which to suspect that that judgement, something wrong did happen.
Every judgement has three parts – the Recital of what was filed, what is the dispute, framing the issues; the Discursive dimension in which the Judge discusses applicable law, analyses applicable law and applies them to the issues framed and decides how they are inclined. Then you have the Dispositary parts, where the Judge actually says, this is how I decide, these are my findings, these are my orders – that’s the end of the matter.
You cannot say that the Dispositive part of a judgement, is an error. No Judge makes an error with their disposition, and still calls that a judgement. I’m learning now that, what is said in court is really the judgement of the court, and not what is in the record! That’s the way law works in Nigeria. I’m also learning that, you can appeal against concurring judgements. It is absolutely new law to me, that you can appeal against concurring judgements. It’s also new law to me that what the Judge says in court is what the judgement is, and not what is in the record.
The Slip Rule
This is absolutely not a clerical error. There is a doctrine in law actually that applies to clerical errors in judgements, called the “Slip Rule”. So, for instance, if you want to write wifi and you write wife, that is a clerical error that can be corrected. With the consent of the parties, having notified them, revert wife to wifi. But, you cannot, with the consent of anyone, say that having awarded costs to me, you will cancel that and award costs to the other party. Of having set aside the judgement of the lower court on record, you then come back and say that is an error, and will actually uphold the judgement of the lower court, because those are dispositary, those are the dispositions of the court. Once you do that, that’s final. The only way you can reopen that matter is upstairs, if there is still an opportunity, or a review, if you are before the final court. That is not a clerical error. That was the old law that I was taught. How can the dispositions in that judgement be clerical errors?
Recruitment to the Supreme Court
I am not from Kano. I’m not interested in any of the parties in Kano. I am however, interested with every fibre I have, in the credibility of the judicial system in Nigeria. And, by the way, the Judge who gave this thing is the one who is being put forward to go to the Supreme Court on the basis of the nominations that have just come out of the FJSC. It’s a coincidence I presume, that it is contemporaneous with this scandal of a judgement; on the basis of this scandal of a judgement, that person who is being put forward to go to the Supreme Court and the Judge who was on Reserve the last time appointments were made from the Niger Delta, the South South in 2020 is stepped down in favour of this scandal of a judgement. I think indignation is dead in the country.
We are no longer serious, about upholding the integrity of the judicial system, of Judges. Any Judge who puts this thing forward should be going before the disciplinary process, so that they can explain themselves as to how you provide a judgement to all sides in the matter. It is inconceivable. It is a scandal. I’m actually scandalised that any Lawyer, irrespective of the side they have taken in the case, cannot see that this scandalises the Judiciary and the judicial system.
The Nigerian Judiciary is crooked. I said so and I claim it with my full chest. It’s not a belief. No Judiciary that is credible, will produce this kind of judgement and certify it. And, this is not coming from a Customary Court. It’s not coming from an Area Court or a Magistrate’s Court, it’s not even coming from a High Court. It’s not coming from a Customary Court of Appeal nor a Sharia Court of Appeal; this is the Court of Appeal of Nigeria, the second highest court in the country. Any Lawyer worth their onions, should be scandalised by it, irrespective of whatever side you take, because the country relies on credible adjudication in order to make progress, in order to sanitise society, in order to retain balance in our country.
Now, if we are producing judgements like this, and then asking the Lawyers to come back so that they can be tippexed and corrected, how do you trust the judicial system?! That is crookery. If a Judge gives a disposition and comes to change it, and you are telling me not to say that they are crooked, you are not serious.
Shame
As a citizen, would you trust a Judiciary at the highest levels in which a Judge produces this kind of judgement? It is absolutely crooked and shamelessly so. We should all be ashamed of a Judiciary that produces this kind of judgement; and we should all be ashamed that we are sitting down here talking about changing a judgement that has already been published and certified. And, we should all be ashamed that we are publicly claiming that what was said in court is superior to what was certified by the court. All of this is very shameful. I’m really ashamed, as a person who used to be a Nigerian Lawyer. Nigerian law left me a long time ago, because quite honestly, it is impossible to try to advice anybody on the basis of what is happening in our courts.
Don’t take my word about the crookery. The ICPC published a Report saying that Lawyers and Judges were bribing one another to the tune of billons of Naira. This was just 2020. Now, if we look at what is happening, the numbers will be more than that. These are not my sentiments, there is official reporting, literature from institutions of the Nigerian State. And, we are having situations in which Judges and Senior Advocates of Nigeria who were charged with serious crimes of corruption, have been let loose and let go without being acquitted and have returned to the Bench. And, you are telling me not to say that it is crooked. What then, is it?
It is not his place to do so. The Chief Registrar of the Court of Appeal, did not sit on the proceedings; Chief Registrars are not Judges. It is not the business of the Chief Registrar to get in at this point. His job is over. He makes reference to the Handbook of the Court of Appeal. The slip rule is not available, to correct the final dispositions of a court. It is for typographical errors. The final dispositions of a court, is not a typographical error. That is the meat of the judgement. How do you return a CTC to correct a judgement, not a typographical error? That is a scandal. That is crookery.
Conclusion
We have never had it this bad. Between 1999 and 2004, the NJC disciplined over 20 Judges for corruption related to election matters. In 2005, the NJC fired two Justices of the Court of Appeal over collection of money and buildings in a Senatorial case. So, let’s not behave as if we don’t understand that these things are happening. It is the impunity and complicity between political actors and judicial actors on the scale that it is happening, that is dangerous. There is a trend, and we need to all act collectively to redress. I do think we need to begin by acknowledging that there is a problem, and try to work together for the benefit of all sides. We are dealing with a pattern of malefaction which I believe, should worry us.
Professor Chidi Anselm Odinkalu, former Chairman, National Human Rights Commission, Nigeria
Why is Nigeria’s Judiciary Further Destroying the Supreme Court with its Politics Over Appointments?
Joseph Otteh
Introduction
A shift of public attitudes is seeing the Judiciary – and the Supreme Court – come under an unrelenting barrel of scatting attacks, and it is so clear that a lot of people have lost faith in Nigeria’s judicial institutions. Former Minister of Education and World Bank Africa Region Vice President, Oby Ezekwesili, only two days ago, called out Nigeria’s Judiciary as being “rotten”. Similar tropes are reverberating across broad spectrums of public opinion. The leadership of Nigeria’s Judiciary still appears unruffled by this loss of esteem, and has barely shown signs of irritation or indignation at the name calling, nor made efforts to recalibrate its public perception. On the contrary, the Judiciary keeps feeding the impression that it is un-reconstructable and irresponsive to public opinion.
Recently, the Federal Judicial Service Commission (FJSC) released a list of Justices who were shortlisted for the vacant Supreme Court positions, which the National Judicial Council (NJC) will consider and recommend for appointment. Before interrogating the list, one first hurdle the Judiciary must clear with the public, is: was the entire recruitment process stage managed for political purposes?
Prior Efforts to Fill Supreme Court Vacancies
To be clear, there were 14 Justices on the roll of the Supreme Court in June 2022, when the current Chief Justice of Nigeria (CJN) Hon. Justice Olukayode Ariwoola, GCON was appointed. By the time the CJN was confirmed in September 2023, the number had decreased to 13 with the retirement of Hon. Justice Abdu Aboki. Meanwhile, even before the CJN came into office, his predecessor had begun a process to appoint more Justices into the Supreme Court, and, as at January 2023, published notices requesting expressions of interest in the Supreme Court vacancies, with the process progressing enough to the extent that the Nigerian Bar Association (NBA) stated that a shortlist drawn had been drawn up but had excluded members of the Bar. As far as is known, no explanation has been offered as to why the recruitment process started in early 2022, and expected to lead to the appointment of more Supreme Court Justices, expectedly in that year, was aborted.
In June 2023, one year after his appointment as CJN, another call for expression of interest was opened for the appointment of 10 Justices of the Supreme Court, with no reference made to the outcome of the process which begun in 2022. Five months after this process began, no fresh Supreme Court appointments have been made, in spite of the urgency and direness of the personnel situation at the Supreme Court.
In his address at the Valedictory session of Hon. Justice Dattijo Muhammad recently, the CJN said the Supreme Court was now reduced to 10 Justices, which he said, was unprecedented in recent history, promising that new appointments were underway. What the CJN did not say, was arguably far more important than what was said. The question that should have been answered, was why the vacancies in the Supreme Court had to persist and even widen during the period. Why were two processes begun for recruiting additional Justices of the Court aborted, stalled or simply kept in abeyance? The Judiciary exercises complete control over, and independently manages processes leading up to appointments of Supreme Court Justices, up till the time the President is called upon to make a formal appointment. So, it was not the case that the President has refused to act on any recommendations made to him for appointment, in the way ex-President Muhammadu Buhari did in 2018/2019. So why, for nearly two years after the Judiciary initiated processes to recruit additional Supreme Court Justices, have the Justices not been appointed? Why did the process stall, and not returned an outcome? As Justice Dattijo Muhammad said at his Valedictory: “It is not in doubt that there has been sufficient time for suitable replacements to have been appointed.”
Justice Dattijo Muhammad called out the “Antics” and Politics of Judicial Appointments. There is also a more portentous, sinister perspective to take account of, floated by no other than retired Supreme Court Justice, Dattijo Mohammad, at his Valedictory saying: “It is evident that the decision not to fill the vacancies in the court is deliberate”. When considered against the backdrop of other comments Justice Dattijo Muhammad made regarding the composition of the Supreme Courts’s Presidential Election Appeals Panel which recently ruled on the Presidential elections appeal, it appears Justice Dattijo was suggesting that the delay in filling Supreme Court vacancies was both premeditated and politically-motivated. Was it? Up till now, it is not known that the leadership of the Judiciary has refuted the allegations or fought them elsewhere.
Well after the conclusion of the Presidential election appeals, efforts to fill Supreme Court vacancies have gathered traction, and a new shortlist of candidates has been released. The list, comprised entirely of serving Court of Appeal Justices is blinkered with raw institutional biases, or, to put it in another way, reeks of blatant institutional nepotism. The Supreme Court needs the complexion, astuteness, robustness, scholarship and intellect of a far more diverse body of Justices than what only serving Court of Appeal Justices offer. Supreme Court appointments ought not simply be reserved for fulfilling personal ambitions or expectations.
The foremost court ought to be a court that represents a country’s best foot forward, the iterations of a nation’s ablest legal scholars, legal philosophers, and jurists whose backgrounds and diversities can bring much added value to the task of building the legal architecture for achieving the socio-economic aspirations of the country. It’s often called a court of policy, not for cut-and-dried legalisms, and that is why in many countries, the process of selecting Justices of the highest courts goes through a rigorous public process, so that potential candidates, in addition to what their antecedents are, can demonstrate publicly, that they qualify for a seat in the Apex Court.
Even then, the current shortlist is not drawn from the selection process which produced the list of June 2023, and a significant number of changes can be observed between both lists. For the South-East for example, three names in the original list have been dropped. For the North-Central zone, a name has been dropped, while two names have been added in the new list. For the North-East, two new names have been proposed, which were not in the earlier list. One of them is the Justice who presided over the Presidential Elections Petitions Court. For the North-West, one name was dropped, while two others were added, while for the South West, and South-South three names were dropped entirely respectively.
Why did the same body, that is, the FJSC vary its recommendations? Did it begin a fresh recruitment process to do that? If so, when? Were fresh interviews conducted, or fresh appraisals of credentials made? If it did not, on what basis did it withdraw the former list and produce a new one? Why has there been a staggering lack of transparency, in the way appointments to the Supreme Court are being made? It therefore, appears that between 2022 and 2023, this is the third process undertaken for filling vacant Supreme Court vacancies, while no explanations have been offered as to why the earlier processes drew a blank.
Conclusion
Many lessons that can be drawn, from this narrative. One of them is that the process of appointing Justices to Nigeria’s highest court, elevated as that court is, is still under the near-full control of the CJN who heads both the FJSC and the NJC. The powers he exercises in this respect, are largely not subject to control. Have these powers been used in a politically-motivated manner? Some, like the retired Justice Dattijo Muhammad think so, and his claims in this respect, need to be thoroughly investigated for the sake of preserving whatever margins are left of the Judiciary’s reputation. And, it will not be the first time that such allegations have been made. Hon. Justice Ayo Salami (Rtd), former President of the Court of Appeal, once alleged that he was, against his will, recommended for elevation to the Supreme Court, in order to find a replacement who will dance to the strings of a certain political tune.
The politics surrounding judicial appointments in Nigeria is eating up Nigeria’s Judiciary, which was once a proud institution. Now, it is barely a shadow of itself, bumping along the bottom, and gasping for air. The negatively-altered climate of public trust in which Judges/Justices now function is casting a long shadow over them, many of whom have given their everything, soul and body, to serve honourably. There is a certain “urgency of now” to fix a badly broken system, but the complacency of those who ought to fight could drive the justice system to total perdition.
Joseph Otteh, Convener, Access to Justice
