By Chidi Anselm Odinkalu
Aloysius Iyorgher Katsina-Alu didn’t set out to be a lawyer or a judge. His first love was soldiering. From April to October, 1962, he was enrolled at the Nigerian Military Training School (NMTC). The month after graduating from the NMTC, in November 1962, he left for the officer training programme at the Mons Military Training College in Aldershot, England. In January 1963, he returned to Nigeria from military training to enroll for a law degree at the Ahmadu Bello University. He returned to the United Kingdom the following year where he graduated from the University of London in 1967 before enrolling as a lawyer in Nigeria in 1968.
43 years later, when Katsina-Alu retired as the Chief Justice of Nigeria (CJN) on 29 August, 2011, one newspaper described his legacy as “leaving the judiciary in turmoil.” 11 days earlier, the National Judicial Council (NJC), which he chaired in his capacity as the CJN, suspended Isa Salami from office as the President of the Court of Appeal (PCA). Few would have predicted, however, that the NJC would choose to achieve this result by refusing service of court processes in proceedings questioning the exercise of its powers.
Not even the soldiers did that in the worst days of military rule. Katsina-Alu may have left soldiering for law but the military vocation never left him.
Much of Katsina-Alu’s tenure as CJN was dominated by allegations and counter-allegations surrounding the disintegration of fraternal relations between him and Salami. The wilful bungling of this case by Nigeria’s senior-most judges and the toxic aftermath continues to afflict the judiciary over one decade later.
Unless otherwise disclosed, all the quotes below are from the 23,952 word report of the Fact-Finding Committee headed by former PCA, Umaru Abdullahi, established by the NJC into these allegations.
This story turned on what happened at the encounter between the CJN and the PCA on 8 February 2010 in the CJN’s Chambers at the Supreme Court. Dahiru Musdapher, then the second senior-most Justice of the Supreme Court and likely successor to the retiring CJN, also attended the meeting. The subject matter was the pending judgment in the petition before the Court of Appeal concerning the Sokoto State Governorship election in 2007. The details of what was in fact discussed became the subject of bitter dis-agreement between Nigeria’s three senior-most judicial figures. At least one or more of them lied.
To find out what transpired, the NJC, a high constitutional and statutory council of supposedly the most solemn judicial figures in Nigeria, established three successive panels at the end of which the consequences did not bear any resemblance to the facts.
The PCA claimed that at the meeting, the CJN asked him to “instruct the Justices to dismiss the appeal,” saying that he – predictably – rejected this out of hand.
The CJN had a somewhat different recollection, claiming that he had called in the PCA to advise him that the judgment in the Sokoto governorship election appeal having leaked, “the only way to maintain the integrity of the Court was to reconstitute the panel.” The CJN says the PCA left him with the impression that “he would disband the panel having admitted that the judgment had leaked.” However, after waiting impatiently for over 10 days to hear from the PCA on the next steps, on 19 February 2010, the CJN “wrote letter No. NJCICAfDMlIV/48 that the judgment that was to be delivered in the Sokoto Gubernatorial Election Petition Appeal ‘be put on hold’ pending the investigation of the petitions I had received.”
The PCA retorted that at no time during this encounter was the issue of “leaked” judgment raised.
The recollection of the only other person present at this meeting, Dahiru Musdapher, tallied only somewhat with that of the CJN. However, he disclosed in his unsworn testimony to the Umaru Abdullahi panel that during this meeting, “the CJN (had) said there was going to be a security breach” (if the judgment was delivered by the Court of Appeal). It is not clear when or how it became the business of judges to worry that a judgment would cause a “security breach?”
That Nigeria’s three senior-most judges could render such conflicting accounts of a brief meeting must inspire considerable sympathy for the average litigant or court user.
When this matter first came to the attention of the NJC in February 2010, they constituted an “elders Committee from members of the NJC to look into the matter”, led by Bolarinwa Babalakin, then long retired from the Supreme Court and comprising three other retired Supreme Court Justices and a retired PCA.
As it turned out, no one was quite sure what the mission of the Elders Committee actually was. To four members of the Committee at least, theirs was a fact-finding and reconciliation mission. To the Umaru Abdullahi Committee, the Elders Committee had a narrow mandate to “reconcile” the CJN and the PCA. One person, a former Supreme Court Justice, sat on both the Elders Committee and the Umaru Abdullahi Committee. The Elders Committee reported on 8 March 2010, concluding among other things that they “found no misconduct made against the PCA” and “the Hon. CJN as Chairman of NJC has no power to interfere with any proceeding in any Court as was done in this case.”
In his testimony to the Umaru Abdullahi Committee, Bolarinwa Babalakin reported that “both parties appeared satisfied with what the Committee of elders did in the discharge of their mandate.”
It turns out they may not have been quite satisfied after all. A new chapter in this scandal opened at the end of 2010 when the Federal Judicial Service Commission, also chaired by the CJN, sought to recommend the PCA for appointment to the Supreme Court. He rejected this recommendation out of hand and sued to stop it. In doing so, he deposed under oath to claims that the proposal to appoint him to the Supreme Court was reprisal by CJN Katsina-Alu stemming from the allegations in the Sokoto case.
On 9 March 2011, the NJC established a five-person fact-finding panel to examine these petitions, claims and counter-claims. Curiously, neither the CJN nor the PCA testified before the panel. However, the PCA personally cross-examined some of the witnesses.
The Panel heard witnesses who did not testify under oath. Concerning the directive of the CJN suspending the delivery of the judgment of the Court of Appeal, the Panel concluded that it had no difficulty in holding the view that under the Constitution and the laws of the land, no apparent power has been bestowed on the NJC of which the CJN is the Chairman to interfere in any proceedings of the (sic) legally constituted Court. The Panel however finds no semblance of ill-motive, selfishness of an individual or sectional interest being used to subvert the Constitution in the steps taken by the CJN, Chairman of the NJC. In view of the surrounding circumstances, the Panel finds that the CJN was motivated by an apparent urge to protect the administration of justice and avoid breach of peace. The Panel finds that the CJN acted in good faith to have taken the steps he took.
Concerning the issue of instructions allegedly given by the CJN to the PCA in the presence of Hon. Justice Dahiru Musdapher to dismiss the appellant’s appeal; the CJN emphatically denied this allegation and the clear evidence of Hon. Justice Musdapher confirmed the CJN’s position. The matter needs no further discussion.
Thereafter, the NJC constituted yet another panel, headed this time by Chief Judge of the Federal High Court, Ibrahim Auta, to determine what to do. On 10 August, a release on behalf of the NJC by one Soji Oye declared that the NJC had concluded, contrary to the findings of the earlier panels that the allegation made by the PCA that the CJN “instructed him to direct the Sokoto Gubernatorial Appeal to dismiss the appeal by the Democratic People’s Party (PDP) of Nigeria is not true”, concluding that this “is a misconduct contrary to Rule 1(1) of the Code of Conduct for Judicial Officer of the Federal Republic of Nigeria”. The NJC, therefore, “decided that the PCA should be warned for such unethical conduct which eroded the public confidence in the integrity and impartiality of the Judiciary; and apologise in writing” to both the CJN and the NJC within a week from 10 August.
Two days later the PCA returned to court to set aside these decisions of the NJC. The NJC declined to be served with the court processes but leading members of the NJC who defendants in this case accepted service were also. While this suit was pending and after they had accepted service, they nevertheless, sat in the NJC to suspend the PCA.
Back at the Federal High Court, the case filed by the PCA awaited to be assigned by one Ibrahim Auta, the Chief Judge who wielded the Guillotine for at the behest of CJN Katsina-Alu. Thereafter, if there were to be an appeal, it would have gone to the Court of appeal presided over by the PCA himself. It could possibly even have ended up before a Supreme Court presided over by Dahiru Musdapher as imminent CJN.
It was impossible to persuade a scandalized public that these senior judicial figures were doing anything more than using the judicial process to settle personal scores. Surely, the NJC was created to be more serious business than a kiss-and-make-up club or an I-love-you-too rendez-vous. If a fraction of this happened on the Stock Exchange, serious charges of Insider Dealing would have been justified.
Over one decade ago, therefore, it was clear that the NJC as constituted was unsustainable. It was equally clear that the ubiquitous role of the CJN in the complex web of judicial governance in Nigeria did not serve the person, the office or the institutions of the judiciary well. Katsina-Alu and, more recently, Tanko Muhammad showed how the NJC could be suborned by a venal CJN. Court users and honest judges in Nigeria deserve better.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
