He was a Judge for 10 years. He practised as a lawyer for 19 years. Now in retirement, Justice Babasola Ogunade is into consultancy, which allows him more time for God’s work. Justice Ogunade is the Chancellor of the Diocese of Lagos West, Church of Nigeria (Anglican Communion). In this interview with JOSEPH JIBUEZE, he speaks on what makes a great judge; life in retirement; why being a judge is challenging; his expectations of the incoming Buhari administration and the need for more voter education to reduce ‘money politics’.
Are you satisfied with your time on the Bench?
If you have done your best while in service, in retirement you will feel happy that you have done your best. If you work according to your oath of office, then you should leave it better than you met it. That is my satisfaction.
How did you join the Bench?
A good number of us went to the Bench not because we aspired to. I was a full time legal practitioner from the first day of my call to the Bar until I was invited to come to the Bench. I did not apply. I did not lobby anybody. In actual fact it’s like I was dragged into it. I was first asked to come to the Bench in the mid 1980s but I didn’t take it, for two reasons. The way that judges were retired in 1975/76 by the Murtala/Obasanjo regime – I felt it was an unnecessary intrusion into the affairs of the temple of justice.
What was wrong with how the judges were retired?
I knew of two people who were retired in Lagos. One was in the limelight of the Bar when he was in practice. And on the Bench, he was someone that everyone was looking up to. The reason for his retirement was only made known to him after they had retired him. And when they heard him, they said: ‘We’re sorry, we didn’t have the facts.’ And most unfortunately, the Attorney-General at that time was a solicitor of the Supreme Court. In order to make up for it, they converted his compulsory retirement to voluntary retirement. It’s a long story. Because even though they knew the facts, one of those ones who played a prominent role in their retirement knowing all the facts came round to write a book to malign the character of that judge. So, when you have seen that kind of treatment, how are you encouraged to go to the Bench?
So, what convinced you to go to the Bench?
The first time I was asked, I said I was satisfied with what I was doing; I didn’t want it. But you realise that it is a position of honour. No matter what anybody says, the highest point you can reach as a lawyer is for you to become a judge. It’s the other way round in this country. In England I do know that a number of the High Court judges there are Queens Counsel (QCs), and they always regard it as an honour when they are invited to the Bench. But it’s not the same thing here. In the end, I had to surrender and I accepted to go to the Bench.
Did your earning increase while on the Bench?
The way I met the Bench wasn’t anything to write home about. One, my income was reduced by almost 75 per cent. But I didn’t complain because I knew what I was going into. I felt satisfied with what I had done in practice. And I was sure I could manage with whatever I earned. So the usual temptation that people have, to want to cut corners – I didn’t have it, maybe because of my family background. I’m satisfied that I gave of my best.
Are you satisfied with the way retired judges are treated?
My view is that having done your best for the Bench, you shouldn’t be among those going cap in hand to ask for your pension. And I think it’s worse here because your earning is tied to the apron string of state executives. They are the ones who will pay you if you have served in the states. I think they are trying to improve upon that now. Most of the time it’s for the governor to say: ‘I don’t have money for pension. We’re struggling to have money’. Without being partisan, the present governor of Ogun State has been doing his best for retired judges until last September when he had to confess that the income of the state had been drastically reduced to the extent they had to look for money through internally generated revenue.
How can this anomaly be rectified?
I think effort should be made to totally separate both serving and retired judges’ emolument from the apron strings of whether federal or state administration. I understand that the emolument and remuneration of judges rarely comes under First Charge on revenue. They have managed to relegate it to this stage that judges have almost become beggars. Those who are serving will have their own story to tell. You’re left under the whims and caprices of whoever becomes the governor. It’s just not right, particularly for a person who believes that he has given of his best and has not for any time soiled his hands and is satisfied with the sacrifices he made. And when you retire, you’re going to be left short of funds. Even that which has been given to you, you may not be having it on time. I don’t think it’s the best.
What do you make of allegations of corruption on the Bench?
Today you talk about corruption in the judiciary. I don’t really know what it is. There may be some (who are corrupt) because of human failings, but it’s not as all embracing as it’s made to appear by politicians and unfortunately even by the media. They expect judges to be prosecutors. For instance, someone has stolen. Those who are going to prosecute will not bring evidence, and when the judge gives judgment according to the evidence before him, he will then be the one who has done ill.
What do you miss most about the Bench?
I miss the regular interaction with lawyers in the court. Any practitioner who had enjoyed his practice will always appreciate what it is, especially when you have lawyers who know their onions. You miss all that. Unfortunately as a judge, you have more or less been secluded from society. Many of your friends would have deserted you when you are on the Bench. And when you leave, before they start coming back to you, it takes some time. I remember I was at a party. One of my childhood friends who I grew up with and went to school with, a reputable professional in his own right – he sarcastically said: ‘You’re the learned people, we’re not learned.’ This is the sort of attitude that people have generally. That’s the fate that we suffer. You’re there but your friends don’t come to you anymore. And when they see you, the attention is rather cursory. It’s not as cordial as it used to be. So it takes a while to start warming yourself into their embrace again.
Would you say the life of a judge is challenging?
It is challenging. As a lawyer, friends come to you. The moment you are appointed a judge, your friends and clients keep you at arm’s length. It’s for good reason because I had done that to my friends who became judges. The moment they are appointed judges, I keep my distance from them, because of the society in which we live. And you sort of suffer that isolation. What is worse is that you are isolated from your friends, even from your extended family. It becomes such that you are restricted to your immediate family, because you never know the reason people would be coming to look for you in the house.
Do you see that as good or bad for a judge?
Well, it’s a mixed bag. There are a few lawyers who have not been quite helpful. They say all sorts of things to their clients. ‘We’re friends, I know him, I’ll go and see him for you’. He would come towards your chambers, perhaps speak to your clerk, and he would go back and say: ‘It’s all done; it’s finished.’ So the client believes when he gets to the court, he’s going to get judgment, whether rightly or wrongly. If he doesn’t get it, he turns around and says: ‘That judge is corrupt; he took money from me.’ Sometimes it’s better for you to minimise your association with people. It’s not too much of an advantage on the other hand, because there are times you would want someone to share a burden with, not necessarily with your wife, but it’s an immediate burden you feel you want to share with someone. You could think X is your friend, then you caution yourself. ‘Do I know what advantage he will take of my discussion with him?’ So, it’s challenging.
How about working conditions?
What is worse is the atmosphere under which judges work. Lagos is an exception. For a quite a while, the state has been taken care of their judges. Wherever they have designated as judges quarters are judges quarters. It’s not the same in other states. If you go to some states now, what used to be judges’ quarters had been sold or shared among other people, except the judge had come from that area and has his own house, which in itself is not helpful. There is no longer that atmosphere of serenity or privacy.
Did you have any such experience?
There was a time during my career on the Bench when I had to live in hired accommodation. That is bad enough, because everybody you see is a potential litigant. What is worse? At some point, my landlord and his son had a controversial case in my court. I didn’t know anything about it. I saw the papers in the office, and thought: ‘This surname sounds like that of my landlord, but it doesn’t matter.’ You have taken oath to do justice to all manner of people irrespective of their relationship with you. A week after I started the case, bingo came an anonymous letter from someone saying: ‘Yes, you live in his house. We know you have compromised your position. You’ve taken a bribe of N1million from him. But don’t forget, we know your father and your mother. They are good people. Don’t soil their name.’ You could see the danger. Then in the town, it’s all over the place. ‘What justice are you expecting? They live together.’ The young man whose case was before me lived directly opposite my house. I didn’t know it until this case started. When his father was going to his house, he passed by mine. So you can really see the danger to which you are exposed. The judges before me in that jurisdiction had been living in that house. When I was transferred to the place, which happened to be my hometown, the house was in a shambles. Sometimes I’d receive anonymous letters. Some would say: ‘We know the way you take to Lagos; we’re coming to double-cross you on the road.’ These are the challenges you have in an effort to do your work.
Are judges more at risk?
The way I see the position of a judge, particularly a judge of first instance – magistrates and judges – they are the ones who will see the litigants take evidence, write judgments, and be seen by the litigants everyday. On appeal, the appellate justices look at records. They don’t need to know anybody. In fact it’s sufficient for them for the lawyer to just come. But the judge is the one seeing the litigants. They know you, they can ask questions about you. So you can see that it’s a sacred job, but at the same time one that endangers your life. But quite a number of us, because we believe in God that you’re not going to do what is wrong, so no matter what effort you make, one is not afraid.
Was there a particular judgment you regretted giving?
I cannot remember one. This is not really self-praise. I am human and fallible, but I have not deliberately gone out of my way to give judgment in favour of anybody who by my own judgment does not deserve it. I had not.
Was there any particular challenging case you handled?
This particular one was a chieftaincy dispute. I did it as I thought would bring peace to the town. Both sides appealed. Both sides accused me, saying I did it to just push them away. I gave judgment in 1997 but the case is still lingering in court till today. There was an appeal from 1997. It took 13 years before judgment was delivered. After 13 years they went to the Supreme Court. It’s been lying there for about three years. Unfortunately I would go into the town; nobody would come to me, but they would tell my friends that I was the one who had prevented them from having an oba in their town. But as far as I’m concerned I’ve done my best. I didn’t invite anybody to bring a case to me. They brought it and I gave judgment according to evidence. Having done that I have no apologies.
What can be done to limit interlocutory appeals?
By the various reforms being done, I think they are trying to find a way of limiting interlocutory appeals. But the instance I gave you, it was not a problem of interlocutory appeal. It’s the final judgment that they appealed against. Then a lot of things came into it. Again if I may suggest, serving judges are made to do a lot of other things, which eat into their judicial time. There may be a tribunal of enquiry, but they won’t trust a retired judge to handle it. They will ask a serving judge to do it. Speaking for myself – myself alone – I don’t see how we should inundate the highest court of the land, the appellate courts and the High Courts with election matters. You can imagine how long election matters take.
So who should handle such cases?
There are judges who are retired. You can make enquiries about them. And you can use those of them who will not compromise under any ground. Why can’t you ask them to handle some of these things instead of dragging serving judges into it, and in the course of it, they are maligned? There were a lot of unproven cases of bribery after the 2007 and 2011 elections. There were even cases where judges were retired because of allegations of collecting bribe. If their excuse is that if a retired judge collects bribe, he cannot be disciplined, has bribery stopped being a criminal offence? If a person has committed a criminal offence, why can’t you prosecute him? If a person who has a public duty to perform collects bribe, and you’re able to prove it that he collected bribe, why can’t you prosecute him? Prosecute him and send him to jail! Even if you say you cannot discipline him internally, you let the law take its course.
Why does NJC not allow serving judges accused of corruption to be tried rather retiring them?
I don’t know. Speaking for myself, I wouldn’t know why. Look at what happens in other climes. You do anything that people believe is scandalous, or is criminal, you get arrested. Investigations will be done. If they find that you’re culpable, you’re prosecuted. If they’re able to prove their case, you go to jail – just as it happens to politicians and the rest of them. Nobody is above the law as far as I know.
How would you rate the standard of judgments today compared to your time?
Without really intending to denigrate anybody, standards generally are falling. The tool of a judge are books. You have to give them books. A judge is supposed to have a library. Ask any judge to show you their library, even library in the court and look at what is there. I am saying this because I know. It has happened to me. As a practitioner, anywhere I had gone I was carrying my own books. I was carrying my entire library with me everywhere I went. The judiciary is badly funded. Regular law reports that should be made available to you are not there. I do believe they’re improving on that now. I understand that some allowances are being given for you to buy books and things like that. I can say that of Lagos. I’m not a judge in Lagos but I see what they do.
How can the problem be addressed?
It could be better. If you don’t equip a man, how do you expect him to produce? You ask a man to go and till a farm and you give him a dead hoe, what do you expect him to produce? Regular training is needed. There is the National Judicial Institute where judges undergo periodic training, but they should intensify that. You live on computer now. You should have a situation in which you equip the courts, put in sufficient power, so that they can use the electronic devices that you give them. Before I left practice, I remember the many efforts that were made to put electronics in the courts. But the thing would not just work. You could be making use of them and suddenly you have a power surge and it wipes away all your records. That’s worse than using my long hand to write. I wrote in long hand for 10 years. I do know of judge who was advised by a doctor that if he’s not going to lose the use of his hands, he should retire. That is why occasionally when judges retire, you will be wondering what happened to them. Three or four years after retirement, he’s a ghost of himself. A man will be about 70 and he will appear like an 80-year-old. And it’s because of the atmosphere in which they had been working. All these things could be better.
You mentioned that you were invited to the bench. Is it not better to ask people to apply to be judges?
I tell you this. That is what makes it beautiful. In England, nobody ever applies to be a judge. You don’t apply to be a judge. The Attorney-General would have done some enquires. He would ask for some names to be shortlisted. Many judges were practitioners. If you were a treasury lawyer, you would begin your career there and end it there. You won’t assume that the next position is to be a judge, unlike what you have here. People from the department of justice of those days, the moment you become a Director of Public Prosecution (DPP), the next thing you’re looking forward to is to be made a judge. When you have looked at the quality of practice, even in the official Bar, and they found that one is a good material, there is nothing wrong with an appointment being made that way.
What do you think is wrong with advertising it?
The moment you start asking people to apply, you know what happens? There is going to be lobbying. It’s going to be about who knows who. I think it’s much more dignifying to be invited. A man will appear in court, and the Chief Judge will say: ‘When you’re going please see me….I’m considering including your name in the next list of appointments. Go and think about it.’ Sometimes they don’t have to ask you. If they find that what you’re doing is good, they will put your name and inform you that you have been appointed a judge. If the environment is good, nobody will be told that he is appointed a judge and he will refuse it. But due to poor earning, poor treatment, that is why you find that if you offer people who are in the inner bar (SANs) judgeship, they will say: ‘What, I’m not going to touch it.’ But in other areas, QCs (Queens Counsel) take such offers with open arms.
Do you agree with suggestions that the Chief Justice of Nigeria (CJN) be appointed from outside of the Supreme Court?
What is he coming to do there? Practicing as a lawyer is not the same thing as having gone through the hierarchy as a judge. An advocate looks at his clients. Whether his case is right or wrong, he takes it, although ethically you’re expected to advise your client. Many practitioners don’t look at the ethics of the profession. If the money is right, they will look for the law. An eminent jurist once said: ‘When I’m in practice, I don’t care whether I’m right or wrong. You pay me the right money, and I’m going to find the law to deal with it. When I became a judge, I started looking for where I can do justice.’ If there is a case before him in which he finds that ordinarily, someone should be given judgment, if he is able to find a law that will support him, he will use it. That is not the concern of a Senior Advocate. They (SANs) are industrious; they are supposed to be hard working. But for you to skip the High Court, the Court of Appeal, and the Supreme Court – I know they are agitating for it, but speaking for myself, I pray that day will not come. Those who had been there (Supreme Court), do they lack knowledge? You only need to be more selective in your appointment. Forget about Federal Character. Look for the best. This Federal Character is what is killing all our institutions. Look for the best and put the best there.
What about the argument that it’s been done before?
I must admit we have had two instances. One of them rose to become the CJN – that is Justice Teslim Elias. But that is an exceptional case. He was not practicing, and was more of an academic lawyer, but he had world reputation. Then we had Justice Nnamani who was Attorney-General and then became a justice of the Supreme Court. Those are very exceptional cases. Don’t make it a norm. There could be exceptional cases. But it’s not to make those outside to rank pari-pasu with those who are already there. Look for the best. For all I know it’s not just about mere advocacy. I was a practitioner. I got to the Bench and found it was different. I found that I had to look at the cases with detached mind. So it’s not the same.
What is your advice on how to do justice?
My advice simply is this: Always remember your judicial oath. Be industrious. There is no need for you to sit late. Your training at the Law School enjoins you to be prompt. If you’re a practitioner and you’re late in going to court, your client one day will go and look for another lawyer. Sit on time; do your best when you’re there; always remember your judicial oath. Minimise your social outings because the work is so demanding. You’re not going to look at the case of one side; you’re going to look at the two cases, and on your own, look at similar cases that had happened in the past that could assist you in what you’re doing. So really, the time for socialisation is so little. Take it that you’re handling something that is sacred. If the remuneration is not as high as you expected, God is your paymaster, he will pay you. Since I retired 14 years ago, I’ve not looked over my shoulder. God has always provided for me. I’m not stupendously rich, but I’m not poor. If I want to eat, I have money to buy food. I have a car in which I ride. And if I need to satisfy family needs, I’m able to do it within my income. Live within your income. Don’t let people look at you and your status and say ‘Ah, how will they say he’s a judge and he cannot do this?’ If you’re unable to do it, you’re unable to do it. That’s the way I look at it. So, the temptation of having to add a little bit unjustly to what you’re earning may not be there.
What are your expectations of the Muhammadu Buhari administration?
The president-elect has put on the toga of a democrat. We only pray he will be able to live his word. The vice-president-elect, I believe is God’s doing. From the little that I know of Prof. Osinbajo, he is not a politician although he served in Lagos State Government as Attorney-General. He served professionally, as a technocrat. I’m not saying that any man who puts on the toga of a pastor is a pious man. But we could really see some of them who by their calling will bring it to bear on their office. If we’re able to have them to live according to their word, maybe we’re into something good in this country.
How can ‘money-politics’ be stopped?
But for goodness sake, let us stop all this money-taking. We need political education in this country. Tell the man who is expecting me to give him N2 that he’s only selling himself. When I give N2 in 20 places, when I’m elected, I’m going to see that I double what I have spent. Many of them don’t see it. We need a great deal of political orientation in this country. If the National Orientation Agency is working hard, what people see in this country would have been different. This last election, God has taken care. God has taken control of it. I think we should really educate ourselves the more. Any politician wanting office and comes to offer you money – some will say: ‘I’ll take his money; after all it’s my money.’ You’re encouraging what you should not encourage; you’ll pay for it. They might give four people money, out of which three will vote for him and he will get there. So let people be told that if you collect money from politicians, you will pay for it and you’re mortgaging the future of even your own children. I think someone should tell them that.
