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26 THE NATION TUESDAY, APRIL 28, 2015 LAW COVER CONT’D •Justice Ogunade (rtd) ‘Treat corrupt judges like criminals’ •Continued from page 25 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 •Continued on page 27
THE NATION TUESDAY, APRIL 28, 2015 27 LAW & SOCIETY •Chief Judge of Lagos State, Justice Olufunmilayo Atilade. IT started with Magistrate O.O. Martins of Lagos Magistrates‘ Court, Igbosere in 2012, who, on several occasions, walked reporters out of her courtroom for no reason. At first, journalists thought it was probably because the cases in question were among those for exemption as provided for in Section 36(4) of the 1999 Constitution and as such, obeyed her directive. Unfortunately, that was not the case as the Magistrate one morning openly said: “I don’t want reporters in my court,” irrespective of the fact that the cases she handles neither jeopardise state security, involve minors, nor endanger public health. This reporter decided to confirm the complaints from her colleagues who she had chased out before from her courtroom. So, that fateful morning in 2012, she was among the first callers at the court and quietly sat on the last bench awaiting the arrival of Magistrate Martins to commence the day’s proceeding. •Continued from page 26 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 Judges and magistrates have barred journalists from covering some cases, including those considered to be in the public interest. A recent example involved Justice Aishat Opesanwo, who walked journalists out during a robbery trial. Are such cases supposed to be heard in ‘private?’ PRECIOUS IGBONWELUNDU asks. When judges, magistrates turned against journalists As soon as she came in and was about to start taking matters, one of her support staff walked up to her and whispered something in her ear. The look on Martins’ face was anything, but unpleasant as she yelled: “I have said it severally that I do not want journalists in my court. What are you doing here? Get out of this place and let no reporter ever come to this court again.” Seeing her so enraged, the reporter quietly, but angrily left her court and never went there again till date. As if that was not enough, a High Court Judge, Justice Aishat Opesanwo, last week banned reporters from covering a murder trial in her courtroom on grounds that “it is a private matter.” Unlike Magistrate Martins, Justice Opesanwo was calm as she told the three female reporters seated at the gallery to leave the court because they were not needed. Aside the two examples personally witnessed, incidences abound where reporters have reportedly been humiliated and sent out of courtrooms by judicial officers in outright violation of the constitution, which clearly categorises a court as a public place. As if to borrow a leave from their learned brothers on the Bench, instances abound where some lawyers, who came late to court and could not secure seats at the Bar, have asked reporters to vacate their seats at the gallery for them. There was a particular case at the Federal High Court, Lagos, before Justice Ajumogobia, where a latecomer lawyer tapped a reporter on his shoulder and said “get up I want to sit down.” Initially, the reporter ignored him thinking he would respect himself and leave, but when he persisted, the angry reporter scolded him to the hearing of the judge, who also reprimanded the lawyer. However, most reporters have expressed worries over this cold war or seeming disdain for them by judicial officers, who see their presence in courts as intruding rather than fulfilling their constitutional obligations. Some have wondered whether the actions of the judicial officers were as a result of sheer ignorance of the law or because they have skeletons in their cupboards, which they do not want the journalists to uncover. They are worried that as custodians of the law, judicial officers who should, at all times, uphold the constitution, have turned to lawbreakers. What the law says The Constitution in Section 36 (3) expressly classified a court as a public place and went further in 36 (4) to state thus: “whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. “Provided that (a) a court or such tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons, who have not attained the age of (18) eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice. “(b) If in any proceeding before a court or such a tribunal, a Minister of the government of the federation or a Commissioner of a state satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in Private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter. Similarly, the Supreme Court in the case of Nigerian Arab Bank (NAB) vs. Barri Engineering (1995) cited in the Nigerian Weekly Law Report (NWLR) (pt. 413) 257 at 290; as well as the Court of Appeal in Asani Kosebinu vs Misri Aliyu (2005), stated categorically that the courtroom is a public place and the only place where court proceedings can take place. While nullifying the delivery of ‘Treat corrupt judges like criminals’ 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 •Justice Ogunade (rtd) it and you’re mortgaging the future of even your own children. judgment in-chambers by judges, the court cited Justice Ogundare (JSC) thus: “A judge’s chambers is not one of the regular court rooms nor is it a place to which the public have right to ingress and egress as of right except on invitation by or permission of the judge. “It is my firm and considered view that a place qualifies under Section 36 (3) of the Constitution to be called “public”, and which a regular court room is, if it is out rightly accessible and not so accessible on the basis of the “permission” or “consent” of the judge... “It is of essence of justice that not only should it be done, but that it should actually be seen to be done. “Any act of secrecy, however desirable it might seem, detracts from the aura of impartiality, independence, publicity and unqualified respect which enshrouds justice given without fear of favour.” In the same vein, many senior lawyers whose counsel were sought following the issue said it wrong for the judicial officers to ask reporters to leave the court, just as they explained that there was no such thing as “private matter” in a public court. The lawyers advised the reporters to petition the Lagos State Chief Judge, Justice Funmilayo Atilade, so that such actions by judicial officers can be contained. However, the Lagos State Attorney General, Ade Ipaye when contacted, said Justice Opesanwo took the action in order to protect prosecution witness in the case. He said: “It was for witness’ protection. Perhaps she should have explained better. Witness felt threatened and afraid and would have had to leave his residence if made to testify in public view.” I think someone should tell them that.
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