It is rare to find a departing Justice of the Supreme Court speaking so frankly and directly about the problems of the Judiciary during a valedictory session.
Many retiring justices use such occasions to offer suggestions on the way forward, but usually, the speeches are diplomatic, in line with the conservative nature of the profession.
But Justice Musa Dattijo Muhammad was different. He called a spade a spade and did not hide his disappointment with the status quo.
Speaking during a valedictory session organised in his honour, Justice Muhammad said the powers of the Chief Justice of Nigeria (CJN) must be reduced.
He also called for reforms and more transparency in the use of the Judiciary’s funds.
Present was the CJN Olukayode Ariwoola, as well as the Attorney-General of the Federation Prince Lateef Fagbemi (SAN).
Both acknowledged that the issues Justice Muhammad highlighted need to be addressed.
CJN: more justices to be appointed
Chief Justice Ariwoola noted that with Justice Muhammad leaving the Supreme Court, the number of justices has further reduced.
He said: “With him leaving us today after the retirement of Hon. Justice Adamu Amina Augie a few weeks ago, we are now left with just 10 Justices on the Supreme Court Bench; being the lowest we have ever had in contemporary history of the Court.
“However, I can confidently assure all the litigant public that efforts are in top gear to get on board a sizeable number of Justices to boost our rank and complement the tremendous effort we have been investing in the business of the Court.
“His Lordship’s charismatic disposition and unflinching commitment to the cause he believes in, have literally conjured an alluring aura around him. In life, there is time for everything.
“The time has come for him to take a final break and have a well-deserved rest in the comfort of private life.
“We all rejoice with him on this special occasion that has been long anticipated, especially as the Almighty God has considered him worthy to enjoy good health and sound mind.
“Surely, his eloquent voice of remarkable judicial activism that had, for several years, rented the airwaves of various courtrooms across the country, will continuously resonate and admonish generations yet unborn.”
Chief Justice Ariwoola acknowledged Justice Muhammad’s frank nature, hailing the value he added to the Supreme Court Bench.
“His Lordship is one judicial officer that could be blunt, even to a fault; and is never known to be afraid to say things the way they are; and also never shies away from calling a spade by its name, irrespective of whose ox is gored.
“Through his mien and conduct, His Lordship has succeeded in erecting an edifice of hope and optimism in the minds of his teeming admirers; and even generations yet unborn who will be privileged to access and behold his great works in the judicial landscape that have already been well-documented and displayed conspicuously in the shelves of various libraries across the world,” the CJN said.
Fagbemi: reforms coming
Prince Fagbemi said the Bola Tinubu Administration was committed to achieving Nigerians’ demand for a simple, fast, efficient, effective, fair and trustworthy system for the dispensation of justice.
He added: “In this regard, both the Federal and state governments share common concerns regarding our system of Justice, as the effectiveness and functionality of the justice system have a direct effect on the overall development, stability and sustainability of our society.
“Against this background, I have initiated engagements with the Nigeria Governors’ Forum, where we deliberated on critical and cross-cutting justice sector issues affecting our Federation, chief among which was the overriding need for mutual collaboration and cooperation to meet the demands of our justice sector institutions.
“The years 2022 and 2023 have been somewhat unusual for the Justices of our apex Court, as it has been for the nation.
“The nation has within this short period, witnessed in quick succession, a steady reduction in the number of its Justices at the apex Court – from 17 number Justices as of May, 2022 to 10 as of date.
“The apex Court is now severely short of its constitutional numerical strength of 21 Justices.
“Ironically, this is happening at a time when the apex court is being over-burdened with the increasing number of cases.
“I must in particular express appreciation to the current Justices of the Supreme Court, for bearing the greater burden with regard to the severely reduced number of the Court against the increasing number of cases brought before them.
“I must also commend the Judiciary for the role they continue to play in sustaining a virile, dynamic and democratic culture in our country.
“I am aware that efforts are already at an advanced stage by the judiciary to recruit Justices and judges to fill the vacuum created by the exit of all the retired erudite jurists and that President Bola Ahmed Tinubu has given his assurance to give an expedited treatment of the appointments once he receives the recommendations from the National Judicial Council.”
‘CJN is too powerful’
Justice Muhammad said it was not his desire that a valedictory be held to mark his exit from the Judiciary. He had wanted to leave quietly on attaining 70.
He offered a tinge of what was to come when he said: “It was my view that valedictory sessions only provide honourees with the platforms to tell their stories and, informed by experience in the course of service, make suggestions as to how to improve the institutions they had served.
“I was, however, unable to appreciate the extent to which previous suggestions had been exploited to effect the desired reforms.
“Members of my family and close friends prevailed upon me to reconsider my position. They insisted that it is defeatist to allow failure in utilising suggestions proffered on previous occasions to deter subsequent contributions.
“The quest for institutional improvement, particularly in the judiciary, they insisted, must, rather, be intensified to avoid hastening the demise of our society.
“A society, they significantly reasoned, rots too easily when institutional defects are ignored. I capitulated and thus the unfolding event today.”
Justice Muhammad graduated from Ahmadu Bello University in June 1976 with an LLB (Hons). Two weeks later, he was employed as a Registrar on Grade Level 8 Step II in the Niger State High Court.
He became the Chief Registrar of the court in 1986. He was appointed a judge the next year.
Justice Muhammad said as presently structured, the CJN is Chairman of the National Judicial Council (NJC), which oversees both the appointment and discipline of judges.
He added: “He is equally Chair of the Federal Judicial Service Commission (FJSC), the National Judicial Institute (NJI), the Legal Practitioners Privileges Committee (LPPC) that appoints Senior Advocates of Nigeria.
“In my considered opinion, the oversight functions of these bodies should not rest on an individual alone. A person with absolute powers, it is said, corrupts easily and absolutely.
“As Chair of NJC, FJSC, NJI and LPPC, appointments as council, board and committee members are at his pleasure.
“He neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies. He has both the final and the only say.
“The CJN has the power to appoint 80 per cent of members of the council and 60 per cent of members of FJSC. The same applies to NJI and LPPC. Such enormous powers are effortlessly abused.
“This needs to change. Continued denial of the existence of this threatening anomaly weakens effective judicial oversight in the country.
“By the provision of Paragraph 20 of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended, the NJC shall comprise the following members: the Chief Justice of Nigeria, who shall be the Chairman; the next most senior Justice of the Supreme Court, who shall be the Deputy Chairman.
Read Also: Constitution, not public opinion shapes court’s decisions, says CJN Ariwoola
“Regrettably, the next most senior justice of the Supreme Court, like Deputy Governors of a state, shorn of any official function except at the pleasure of the Governor, is neither consulted on anything nor does he have any official function.
“His job as No. 2 is purely as the CJN pleases. It is incumbent that the system provides for more inclusion and consultation among the stakeholders.”
Depletion of Supreme Court Justices
To Justice Muhammad, the conversation about the diminishing number of justices at the Supreme Court has become a refrain.
He said: “As I bow out today (last Friday), the number is further reduced to 10 against the constitutional requirement of 21 justices. That this avoidable depletion has affected and will further affect the court and litigants is stating the obvious.
“We are in an election season where the election tribunals and appellate courts are inundated with all manner of petitions and appeals.
“The Supreme Court is the final court in the presidential, governorship and National Assembly election appeals. Yet, there are only 10 justices left to determine these matters.
“Constitutionally, each of these appeals requires a panel of seven justices to sit on them. When a panel of seven Justices is constituted to sit on a particular appeal, only three Justices are left out.
“Even when regular appeals are being heard in the Supreme Court, a panel of five justices is required to sit.
“We must not forget that the court, being the highest in the land, receives all manner of appeals from the court below.
“Presently, there is neither limit nor distinction to the manner of appeals that come to the apex court.
“Again, besides election matters, which are seasonal, the Supreme Court’s docket is overflowing with civil and criminal appeals, some of which took many years to arrive.
“Most of these are still pending. Several have not even been assigned hearing dates. The court also exercises original jurisdiction.
“As the justices who hear these matters are grossly overstretched, unable to meet the demands of their onerous assignment, the litigants who approach the court seeking justice are left in limbo; waiting endlessly for justice to be served. These, as I have said before, are avoidable.”
‘Supreme Court Bench composition unfair to Southeast, Northcentral’
Justice Muhammad bemoaned the unfair composition of the Supreme Court Bench.
He said: “When I exit today, the North Central zone that I represent, ceases to have any representation until such a time new appointments are made. My lord Hon. Justice Ejembi Eko JSC, who also represented the zone, retired on the 23rd of May, 2022. It has been a year and five months now.
“There has not been any replacement. With the passing of my lord, Hon. Justice Chima Centus Nweze, JSC on 29th July 2023, the South East no longer has any presence at the Supreme Court.
“My lord, Hon. Justice Sylvester Nwali Ngwuta JSC died on March 7, 2021. There has not been any appointment in his stead for the Southeast.
“To ensure justice and transparency in presidential appeals from the lower court, all geo-political zones are required to participate in the hearing.
“It is, therefore, dangerous for democracy and equity for two entire regions to be left out in the decisions that will affect the generality of Nigerians. This is not what our laws envisage.
“Although it can be posited that no one expected the sudden passing of Hon. Justice Nweze JSC, yet, it has been two years and seven months since the previous Justice from the Southeast died and no appointment was made.
“Ditto for the replacement of Justice Eko JSC of Northcentral, who exited nearly two years ago. Hon. Justice Sidi Bage JSC, now His Royal Highness the Emir of Lafia, from the Northcentral, had earlier voluntarily retired. He equally is yet to be replaced.
“Also, it was clear ab initio that I would be leaving the court that day on attaining the statutory age of 70.
“It is then not in doubt that there has been sufficient time for suitable replacements to have been appointed. This is yet to occur.
“When on the 6th of November 2020 the Supreme Court, for the first time in its history, got a full complement of 21 justices with the swearing-in of eight Justices, little did anyone know that we were only a few steps to unimaginable retrogression.
“As it stands, only four geo-political regions – the Southwest, Southsouth, Northwest and Northeast are represented in the Supreme Court.
“While the Southsouth and Northeast have two serving justices, the Northwest and Southwest are fully represented with three each.
“Appropriate steps could have been taken since to fill outstanding vacancies in the apex court. Why have these steps not been timeously taken?
“It is evident that the decision not to fill the vacancies in the court is deliberate. It is all about the absolute powers vested in the office of the Chief Justice of Nigeria and the responsible exercise of same.”
Need for transparency/accountability
According to Justice Muhammad, allusions have been made innumerable times about poor funding and how the judiciary has been emasculated by inadequate funding.
He said: “Beyond the issue of the salaries of Justices remaining static with no graduation for over 15 years now, it is instructive to enquire what the Judiciary also does with its allocations.
“Who is responsible for the expenditure? An unrelenting searchlight needs to be beamed to unravel how the sums are expended.
“In 2015 when President Muhammadu Buhari became the president, the budgetary allocation to the judiciary was N70 billion. In the 2018 Appropriation Bill submitted to the National Assembly, the President allocated N100 billion to the Judiciary.
“The Legislature increased it to N110 billion; N10 billion above the N100 billion appropriated for the 2017 fiscal year. At the end of President Buhari’s tenure in May 2023, the Judiciary’s allocation had increased to N130 billion.
“That is an increase from N70 to N130 billion in eight years. The present government has allocated an additional sum of 35 billion naira to the Judiciary for the current financial year making the amount of money accessible by the Judiciary to N165 billion.
“More than 85 per cent of the amount appropriated by the 9th Assembly has so far been released to the Judiciary.
“It is envisaged that the additional N35 billion will equally be released by the present government.
“Notwithstanding the phenomenal increases in the sums appropriated and released to the judiciary, Justices’ and officers’ welfare and the quality of service the Judiciary renders have continued to decline.
“It may interest one to know that the Chief Registrar of the Supreme Court earns more than the Justices.
“While she earns N1.2m per month, justices take home N751,000 in a month. The CJN on his part takes home N400,000 plus.
“The salary of a Justice, curiously, drops rather than increases when he gets the added responsibility of being a CJN.
“That the unjust and embarrassing salary difference between the justices and the Chief Registrar still abides remains intriguing to say the least.
“Valedictory session after valedictory session lapses and challenges that should be nipped are restated to no avail. Why the silence and seeming contentment?”
Need for reforms
Justice Muhammad noted that “a couple of years ago, appointment to the bench was strictly on merit”.
He said “sound knowledge of the law, integrity, honour, and hard work distinguished those who were elevated”.
“Lobbying was unheard of. I never lobbied, not at any stage of my career, to secure any appointment or elevation. As much as possible the most qualified men and women were appointed.
“That can no longer be said about appointments to the bench. The judiciary must be uniquely above board. Appointments should not be polluted by political, selfish, and sectional interests.
“The place of merit, it must be urged, cannot be over-emphasised. Public perceptions of the Judiciary have over the years become witheringly scornful and monstrously critical.
“It has been in the public space that court officials and judges are easily bribed by litigants to obviate delays and or obtain favourable judgments.
“Recently, fresh allegations have been made that children and other relatives of serving and retired judges and justices are being appointed into judicial offices at the expense of more qualified candidates lacking in such privilege and backing.
“It is asserted that the process of appointment to judicial positions is deliberately conducted to give undue advantage to the ‘children, spouses, and mistresses’ of serving and retired judges and managers of judicial offices.
“At the Court of Appeal, it is also asserted that presiding Justices are now being appointed out of turn. And there is the further issue of the unpredictable nature of recent decisions of the courts as well.
“Now, it must be said, Chief Femi Falana is right that the safeguard in our appointment procedures, against judicial appointments for improper motives, is increasingly being compromised.”
Justice Muhammad also raised questions over some recent Supreme Court judgments.
He said: “A number of respected senior members of the bar inter alia, citing Ahmad Lawan, the former President of the Senate and the Imo Governorship appeals, claim that decisions of even the apex court have become unpredictable.
“It is difficult to understand how and where, by these decisions, the judicial pendulum swings. It was not so before, they contend.
“In some quarters the view is strongly held that filth and intrigues characterise the institution these days! Judges are said to be comfortable in companies they never would have kept In the past.
“It is being insinuated that some judicial officers even campaign for the politicians. It cannot be more damnifying!
“President Muhammadu Buhari, in 2016 ordered the forceful entry into the houses and the arrest of Justices, some of whom were serving at the apex court.
“Not done, in 2019, the government accosted, arrested and arraigned the incumbent Chief Justice before the Code of Conduct Tribunal for alleged underhand conduct. With his retirement apparently negotiated, he was eventually left off the hook.
“In 2022, a letter signed by all the other justices of the Supreme Court, including the current Chief Justice, the aggrieved protested against the shabby treatment meted to them by the head of court and the Chief Registrar.
“At the centre of the friction was their welfare and the cavalier attitude of the Chief Registrar thereto. In the event, his lordship Ibrahim Tanko Muhammad disengaged ostensibly on grounds of ill health.
“Certainly, by Rule 8.3 of the Judicial Code of Conduct, ‘any judge who takes advantage of his judicial office for personal gain or for gain by his or her relative or relation abuses the power vested in him.
“It is obvious that the judiciary I am exiting from is far from the one I voluntarily joined and desired to serve and be identified with.
“The institution has become something else. The duty to revive the institution remains a collective one. We must persist.”
