- Says stringent bail conditions amount to no bail at all.
“The manner of recruitment is important too. That is where the problem is. Are you bringing a judge because he’s a hand-clapping alleluia Christian, because he’s a fanatic Muslim or because he’s an animist? That shouldn’t be the concern. Is he jurisprudentially equipped? Does he have enough intellectual warehouse? We have politicised everything.” – Ejembi Eko, JSC
After 35 years in judicial service, six of which he spent at the Supreme Court of Nigeria, Hon. Justice Ejembi Eko, JSC will be remembered for his many dissenting judgments at the apex court. He will also be remembered for other notables including upholding the judgment of a Rivers State High Court at the Court of Appeal which had ordered Shell Petroleum Development Company of Nigeria Limited, SPDC, to forfeit the land on which its oil tank farm —the biggest oil terminal in Africa, Bonny Terminal—is situated, to the owners (the Bonny people). Not only did Shell obtain a Certificate of Occupancy (C of O) behind the community, a clause was inserted in the C of O abrogating the authority of the community meaning that the community had become their tenant. The court at the lower court which His Lordship upheld reads:
“This action of Shell not only smacks of malice but greed and therefore not worthy of any form of sympathetic consideration. Accordingly, I feel no hesitation whatsoever in setting aside the said Certificate of Occupancy for being unconstitutional, null, void, and of no effect. The law remains that a right of occupancy whether statutory or customary creates priority of estate so as to render null and void any subsequent Certificate of Occupancy issued in respect of the same parcel of land unless the right of occupancy is validly revoked by the appropriate authority before the issuance of a Certificate of Occupancy in respect of that same parcel of land to another person.”
The famous 1980 Onu Obekpa case where he convinced a High Court of Benue State that there’s no provision under the Criminal Procedure Code of Benue State which required formality in applying for bail is still a locus classicus.
His Lordship shared his thoughts with Lillian Okenwa.
Emphasise merit instead of seniority in appellate court appointments
If you emphasise seniority alone in the recruitment to the appellate courts, you’d get it wrong. There’s a lot of emphasis on seniority. In 2011, I couldn’t come to the Supreme Court because the person I was shortlisted with was a senior; a Presiding Justice. The Americans and the Indians seem to be getting their acts right. John Glover Roberts was nominated by George Bush to succeed Sandra Day O’Connor at the US Supreme court. Before the senate could consider that request, he withdrew it and re-nominated him to replace Chief Justice William Rehnquist who had died. That can’t happen here in Nigeria. Here your right to the headship of the court is largely gerontocracy – rulership by age. It is your age at the bench that is considered and the heads of court are likely to tell you to wait for your time. That tendency can give room for autocracy. The bad ones do not see themselves as primus interferes.
Recently I read the dialogue between Justice N. V. Ramana the Chief Justice of India and the retiring Justice Stephen Breyer of the United States from the Supreme Court during a webinar in April on the diversification of the bench. The Chief Justice of India said it’s good because when you bring all shades of opinion to the bench it makes the bench richer and assures the people that it is the people’s court. If you bring someone who has a background in commercial law practice or other areas of law, it enriches the bench. I agree with him. We need to embrace that instead of concentrating on seniority alone.
There’s another argument here. In the recent circular by the CJN for the appointment of justices, he invited the private bar which I think is right. Those of them in commercial, maritime, and other areas of practice should come and enrich the bench. Elias, a professor of Law and Attorney General of the Federation was made Chief Justice of Nigeria. Nnamani another Attorney-General of the Federation had a Ph.D. in Pharmacy before studying law. He was appointed straight from the Bar and his records are there. Justice Aguda was a Mechanical Engineer. He was at Yaba College of Technology before reading law. Obaseki first had a degree in Agricultural Science. Meanwhile, I disagree with JAMB which says you must have studied and passed literature in English before you can read law. Lord Denning had his first degree in Mathematics. Justice Iheme Nwosu of the Court of Appeal was in the science class all through secondary school. I was in the science class too. Studying literature in English does not necessarily make one an exceptional lawyer.
L&S: So you feel it’s in order for SANs to be appointed to the appellate court?
It doesn’t have to be Senior Advocates. The prerequisite should be anybody knowledgeable in law. All that’s needed is your jurisprudence; good knowledge of the law; someone that has good morals. I might be offending some of my colleagues who are expecting to be elevated but being a lawyer on the bench, the way you perceive certain things is different from the way the lawyer in the private bar sees things. The way a defence counsel sees things may be different from a prosecuting counsel, and the two of them at the bar will likely see things differently from the adjudicator. Why then don’t we bring from the private bar, official bar, magistracy even some with sound practice in commercial law? There are so many appeals for instance from the capital market and from maritime. We need experts from these fields on the bench. I’m speaking for myself. I’ve heard arguments that we’ve made sacrifices for the nation but we need variety on the bench.
L&S: But there’s an argument that lawyers in the private bar have chances of becoming SANs, so why deprive judges of their chances of elevation?
Did the constitution do that exclusivity? We need diversity on the bench. My orientation is human rights jurisprudence.
L&S: How in your opinion will this issue of conflicting judgments ever be resolved?
At a point when the Court of Appeal had five divisions, the incident was not as bad, but now its 20 divisions. Then the manner of recruitment is important too. That is where the problem is. Are you bringing a judge because he’s a hand-clapping alleluia Christian, because he’s a fanatic Muslim or because he’s an animist? That shouldn’t be the concern. Is he jurisprudentially equipped? Does he have enough intellectual warehouse? We have politicised everything. If it’s not my brother, he’ll not be there. I spent 19 years on the High court bench.
In some zones, five was enough to go to the Court of Appeal. When you go to the south it is muscle. These are the subjective elements causing conflicting judgments. Some judges are not bothered to read and distinguish. So at the end of the day when they just hand it out, it is in conflict. Even the previous judgments handed over to you, by the time you go through it you can make some distinctions
L&S: There is now a perception that one can no longer go to the Supreme Court and get justice. That it’s a place where somebody who was number four in an election can become number one.
It’s a human institution and there are certain errors in human institutions. Some may be deliberate, some may be innocent. The one that no society would tolerate is a deliberate error; a deliberate decision to do something wrong. Apart from that, I wouldn’t comment further on this. I was supposed to be on that panel and later was no longer there. I was on the panel that declared Nwosu as the authentic candidate of APC and Hope Uzodimma was a respondent in that appeal. I was also on the panel which declared that Nwosu having agreed to be sponsored by AA at the time when he was being sponsored by APC was disqualified from contesting. The two judgments recognised Nwosu as the APC candidate. That’s the much I know. Since I wasn’t on the panel I don’t know what happened.
On Stringent Bail conditions
We’ve been telling judges at conferences. It’s not there in the statute books. Stringent bail conditions amount to no bail at all and for a judge to say you have to bring somebody who is a director, how many people in my community are directors in the Federal service? These are very outrageous bail terms and when bail terms are outrageous, it’s tantamount to denial. Why they are still doing it I don’t know. In spite of the battles we fought in the 1980s, it’s still on in 2022. It amazes me. Baffles me.
