Who Will Tell The Chief Justice?

By Chidi Odinkalu

Nigeria’s Supreme Court held a special session on 27 November 2023 to formally usher in a new legal year. It provides an occasion for a retrospective on the performance of Nigeria’s judiciary by its leaders in a season of unprecedented levels of public angst over the political weaponisation of judges and a set piece moment to compare notes on the dysfunctions that afflict the judicial system. The outcome was interesting to the point of anti-climactic.

*CJN Olukayode Ariwoola

On that occasion, the Chief Justice of Nigeria (CJN), Olukayode Ariwoola, also administered the oath on 57 new entrants into the coven of Senior Advocates of Nigeria (SAN). One of the new SANs was born in 1981. Two years later, in 1983, his dad, a lawyer, began proceedings against Shell Petroleum Development Company (SPDC) Ltd, a multinational company in the hydrocarbons sector, in Warri. At the time, Warri was part of Bendel State, which was created by the military a mere seven years earlier in 1976.

After 14 years, the High Court delivered judgment in 1997. By this time, Bendel State had ceased to exist. In its place, the military had, on 27 August 1991, created two successors in Delta and Edo States, and what used to be the High Court of Bendel State sitting in Warri (Division) had become the Warri Division of the High Court of Delta State. The Court of Appeal dismissed SPDC’s appeal in 2000. The company then proceeded up to the Supreme Court which took 15 years to reach a judgment in 2015, 32 years after the case began. By this time, the boy who was two years old when the case began had become a man and a lawyer, even accompanying his dad to the proceedings at the Supreme Court.

Ebun Sofunde, the Senior Advocate who related this story, addressed the special session on behalf of the Body of Senior Advocates of Nigeria (BOSAN). His also told the story of another case filed by Lagos State against the National Sports Lottery (NSL), which began on 5 February 2005. A little over 18 years later, on 31 March 2023, the Supreme Court decided the appeal on the jurisdictional objection of the NSL to the original proceedings and remitted the substantive case back to the High Court of Lagos State for trial. Naturally, Mr. Sofunde wondered aloud about the fate of ordinary litigants if a powerful state like Lagos has no sensible pathway to a timely exit from the courts. 

 Mr. Sofunde is characteristically parsimonious with words and is not given to hyperbole or oratorical flourish. So, when he says – as he did in his address to the Supreme Court – that public confidence in the judicial system “is at an all-time low… to a point where it may no longer be redeemable”, you would think that those with responsibility to run the legal and judicial systems of the country would pay heed. He also told warned the Supreme Court, rather charitably, that its judgments were becoming mostly “perfunctory.”

The Attorney-General of the Federation, Lateef Fagbemi, a prince and a Senior Advocate, chose to take the Fifth Amendment. Treating the occasion mostly as a social call, he congratulated the new SANs; told them how elevated and special they had suddenly become; warned them to avoid speaking to the media and wished everyone “good health in body, spirit, and soul.” If he had continued, he may even have found time to tell the new SANs that they have become a new species that have no need for urinals or toilets!

We digress though because everyone waited to listen to the CJN. Born on 22 August 1954, Olukayode Ariwoola will retire from office when he turns 70 in August 2024. As he acknowledged in his address, this was his last opportunity to report as the leader of the judicial system. It was also opportunity to begin framing his legacy in the public imagination. He grappled valiantly with the former task but appeared to have missed the memo on the latter. In particular, his address needlessly concatenated contradictions, defensiveness, and avoidance. It read like an ode to an institution incapable of introspection or too immersed in impunity to understand the vice in arrogance.

The CJN claimed that the Nigerian judiciary had “fared well in the outgone legal year” and is now “more deserving of public trust and confidence than ever before.” But he immediately followed this up with the promise that “we are poised to reposition it (the judiciary) for effective justice delivery”, which begs the question why anyone would want to reposition an institution that is faring so well as to be deserving of public trust and confidence.

In a rallying cry to judges everywhere in Nigeria, the CJN invited them to “never be overwhelmed by the actions or loud voices of the mob or crowd.” The paragraph before this contained the telling admission that “the true touch-stone for measuring the success of a judicial institution is the degree of confidence reposed in it by the public”, even going as far as warning judges that they “are definitely going to work more assiduously and tirelessly to make our country earn for itself the fullest respect and confidence of both the citizens and the international community.”

The CJN, it seemed, could not quite make up his mind about the state or public standing of the institution he leads. Even worse, his use of the word “mob” in the address was a piece of inspired own goal because it appeared to fit much better as a description of an organized crime ring, which is what a mention of the judiciary reminds many people in Nigeria of these days.

Evidence in support of this perception lay in the numbers he reeled out. First, the CJN delivered a report on judicial vacancies, congratulating himself for appointing nine new Justices of Appeal in September and 23 new judges of the Federal High Court in October 2023. He failed to disclose that among the new appointments, one of the 23 new judges was his own son (appointed with the most scandalously scanty credentials) or that among the new Justices one was his nephew and another was the son-in-law of the President of the Court of Appeal. He also had “the cherry (sic) news”, that soon the Supreme Court will recruit 10 more Justices to bring it up to the full complement of 22. If he brings to that process the kind of blinkers that ruled the filling of the vacancies in the Federal High Court and the Court of Appeal, then most people have a right to be worried.

Departing from judicial vacancies, the CJN proceeded to report that from 12 September 2022 to 11 July, 2023, his Supreme Court registered 1,271 motions and appeals out of which it “heard 388 political appeals, 215 criminal appeals and 464 civil appeals.” At a similar occasion only two years ago, Ariwoola’s predecessor, Tanko Muhammad, reported that the court’s portfolio of 269 appeals disposed of included 139 civil appeals, 102 criminal appeals, and 28 “political cases”. So, two years ago, “political cases” were 10.67% of the appeals heard by the Supreme Court.

According to CJN Ariwoola’s report, the same court in the past year “delivered a total number of 251 judgments, of which 125 were political appeals, 81 were civil appeals, and 45 were criminal appeals.” In just two years, the output of the court had fallen by 6.69% and political cases have risen from 10.67% to 50% (49.8% to be exact). Meanwhile, in the law faculties, professors still teach students that there is a “Political Questions Doctrine” which is a rule for denial rather than acceptance of cases.

These numbers dramatize the extent to which the Supreme Court has become captured by politicians and explain the crisis of lack of exit from courts that Ebun Sofunde complained bitterly about. It is little wonder that the only people who can dispense any form of kindness towards the CJN and his “mob” of exponents in the jurisprudence of the Italian Job are exclusively politicians. The misfortune is that rather than see an opportunity, this CJN can only see enemies. Who will tell the Chief Justice?

* A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu