By Bolanle Bolawole
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Penultimate Tuesday, I flew from Lagos to Abuja and thereafter travelled by road to Lokoja, the capital of Kogi state, to witness activities marking the retirement of a Kogi State High Court judge, Hon. Justice Alaba Andrew Omolaye-Ajileye, as he attained the age of 65 years. The exit of this quintessential, cerebral, bold, courageous, even audacious, judge from the Bench was marked with mixed feelings. There was the feeling of sadness and a sense of great loss as everyone regretted that he was leaving at a time his expertise in the new field of electronic evidence would be greatly needed as Nigeria begins the novel process of electronic transfer of election results. Therefore, the demand was made by “learned” minds and other reasonable folks familiar with the topic that he still be kept on the Bench, even after attaining the mandatory retirement age of 65 years for judges of the lower Bench. This can be seamlessly achieved if he was, at that point, promoted to the higher Bench – Court of Appeal or even the Supreme Court where the retirement age is 70 years – either of which court the protagonists of this argument believe my lord is eminently qualified to sit and do great service and honour not only to the Bench but to the nation at large. Another leg of the argument was that even after retirement, my lord can still be APPOINTED to the higher Bench by the president.
Activities began in Abuja on Friday, 10th February, 2023 with a public lecture titled “The A-Z of the regime of electronic evidence in Nigeria: Issues and challenges” Omolaye-Ajileye is regarded as Nigeria’s leading authority on electronic evidence; his pronouncements on the subject matter has been cited even by the higher Bench. On Tuesday, February 14, the retiring judge made visits to orphanage homes in Lokoja, rounding it up with an “Evening of seven hymns” The high point of the celebrations was the valedictory court session held at the Kogi State Judiciary headquarters on Wednesday, 15th February, 2023 where the retiring judge was “pulled out” of service. Here, my lord made his last judicial pronouncements – and they were profound. Hear him: “A lot of reactions from groups, well-meaning individuals, well-wishers (known and unknown), friends, and colleagues, greeted the announcement of my retirement from judicial service. The quantum of these reactions has been an expression of shock, bewilderment, and stupefaction. In some cases, it has been one of consternation, and a kind of bolt from the blues!’You look too young for your age!’” My lord is not one person who would doctor his age to remain a day longer on the Bench!
Saying that the two pillars of justice in our society are the Constitution and the administration of law (supervised by lawyers and judges), he passed this verdict: “The process of appointment of judicial officers in Nigeria requires some attention here because it is of paramount importance to the administration of justice. I will be unfair to my conscience and the legal profession in Nigeria if I fail to share my knowledge and experience on this aspect. If the truth is to be told, we must admit that there is something faulty at the moment in the process of appointment to the Nigerian Bench. Without any form of equivocation, I say here that I have seen four evils associated with the process.
“The first evil that I see is that in most cases, there is no transparency in the process. The process is shrouded in secrecy and clandestineness. Another evil is that recommendations of Honourable Judges and Honourable Justices don’t count. The act of calling for recommendations looks to me like a ritual, exercised merely to fulfil all righteousness. Those who would be appointed would still be appointed with or without recommendations. The number of recommendations a candidate receives guarantees nothing for him. The third evil I have seen is that the person a candidate knows matters a lot. And that person must carry a lot of weight. The fourth evil is that the place where you come from also counts. In Nigerian parlance, it is called the federal character or quota system. There is nothing evil on the face of the principle of federal character. What is evil in it is the way the principle is applied by the functionaries of government. This underscores the point that it is the human being that makes or mars an institution.
“The direct effect of these four evils is that merit, in most cases, is either relegated to the background or does not count at all in the process of appointment of judicial officers. In fact, I have found that there are no known rods or parameters for measuring merit. That is why merit becomes an eccentric word that is often abused. And the abuse is such that you find that every exercise of appointment of judicial officers is always said to have been based on merit! It is important that the Nigerian Judiciary gets it right with the process of appointment of judicial officers because if it does, it will surely be well with her.
“A comparative analysis of what the situation was in the past and what it is today is expedient here. We have seen the immense glory of the Nigerian Judiciary in the past when the institution was a great pride to ordinary citizens. Judgments of courts were predictable and adorned with philosophical pontifications. Judgments of Nigerian courts were quoted as authorities in other African countries with piquancy. The Nigerian Judiciary, at the apogee of its glory, withstood the tyranny of a military armed with guns but, regrettably today, it has fallen flat before the majestic politicians, armed with Dollars and Naira. It was a healthy judicial system in the days of yore with a reputation for integrity and competence. This was mainly attributable to a fair system of appointment of judges in the superior judiciary wherein appointments were generally made on merit alone. The puzzling question here is: at what point did we get it wrong?”
Space constraints will or allow me dwell further on the Hon. Justice Omolaye-Ajileye’s “four evils” but it immediately reminded me of Francis Bacon’s “Novum Organum” and its four idols, namely: Idols of the Tribe; Idols of the Cave; Idols of the Marketplace; and Idols of the Theatre. We may have cause to return to this some day! Learned silk, J. S. Okutepa, SAN, who represented the Body of Senior Advocates of Nigeria (BOSAN) at the event, regretted that their prayers that my lord be elevated to the higher Bench went unanswered by God:. “For me and many good Nigerians, the Nigerian judiciary, the legal profession and indeed the Nigerian nation are the greatest losers of the retirement of your lordship. This is a case of a shining star and judicial colossus being allowed to go home substantially unused because the system we operate does not appreciate merit in most cases. We prefer to elevate the worst in place of the best. We prefer to lift those who know the well connected than those who know the law and are integrity driven. We prefer the lily-livered characters to those with strength of character. Honestly… the legal profession needs to weep for allowing this jurist of extraordinary strength of character to end his career on the high court bench. Why did the powers that be fail to support your lordship’s aspiration to move to the Court of Appeal or even the Supreme Court? At least the remaining five years allowed by the Constitution for those on the Court of Appeal and the Supreme Court bench would have brought out additional rich jurisprudence from this judicial icon on any of these appellate courts”
Okutepa, who went to neither primary nor secondary school but who, today, is one of Nigeria’s leading SAN, then lamented: “Welcome to Nigeria of absurdities where honesty, integrity, and truth are in most cases obstacles to your growth and development. I feel a sense of grief in me that your lordship is not allowed further opportunities on the appellate bench of either the Court of Appeal or the Supreme Court. This judicial colossus… is not a local judge. His works of scholarship as an author have been acknowledged and quoted by the Court of Appeal”.
Despite his retirement, controversy still trails Omolaye-Ajileye’s exit from the Bench and agitations that he be appointed to a higher Bench have not ceased. But can a retired Judge of the High Court be appointed into the appellate court by the president? This weighty question of law was answered in the affirmative on Friday, 17 February, 2023 in Abuja by no less a personality than the president of the Nigerian Bar Association, Yakubu Maikyau. Speaking at the launching of Omolaye-Ajileye’s book, “In the interest of justice: Excellence in judgment writing”, Maikyau said a line must be drawn between appointment and promotion. The relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), he said, empowers the president to appoint a judicial officer who has retired after attaining the mandatory age of 65 years to a higher Bench where the retirement age is 70 years.
Section 238 of the Constitution of the Federal Republic of Nigeria says: (1) The appointment of a person to the office of President of the Court of appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate. (2) The appointment of a person to the office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council. (3) A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years”.
Citing this relevant section of the Constitution, the NBA president said it was not too late for the president to act to prevent the country from losing the wealth of knowledge and experience of Justice Omolaye-Ajileye, widely recognised as Nigeria’s leading authority on electronic evidence. He argued that since the retirement age on the higher bench is 70 years, Omolaye-Ajileye, if so appointed, would have five more meritorious years of service to offer the country, especially at this critical period in the history of the country when elections are being transmitted electronically and adjudications on election matters in this novel field cannot but be expected. Describing Omolaye-Ajileye as a cerebral and profound judge, Maikyau said the judicial pronouncements of the retired judge, if made on the higher bench, will advance the jurisprudence of Nigeria globally.
Also speaking at the book launch, the Kogi State governor, Yahaya Bello, represented by the deputy governor, Edward David Onoja, described Omolaye-Ajileye as “a good man”. Also describing himself as “a friend of the author”, the governor said Omolaye-Ajileye “is one of those jurists of whom you have no qualms whatsoever in classifying as professional, erudite, wise, upright (even incorruptible) and a fierce Defender of the Independence of the Judiciary as an arm of Government”.
Saying that he concurred with the valedictory court session pronouncements of the retired judge and describing it is as “nothing but the truth”, he regretted that the systemic evils (highlighted by Omolaye-Ajileye) “have permeated not just the judicial fabric but the entire textile of our national existence. One of the most grievous ills under the sun in Nigeria today is that good men and women who have served their nation faithfully and for long are routinely subverted to make way for less qualified and less committed opportunists who are better connected or have the accidental benefits of what they call the right tribe or religion”.
William Shakespeare says “All’s well that ends well” As if to testify, three universities jostled at the book launch to offer Omolaye-Ajileye a professorial chair. These were the Federal University, Lokoja; Baze University, Abuja and the University of Jos while someone said he hoped a foreign university would not emerge to outgun all three!
*Former Editor of PUNCH newspapers, Chairman of its Editorial Board and Deputy Editor-in-chief, BOLAWOLE was also the Managing Director Editor-in-chief of THE WESTERNER newsmagazine. He writes the ON THE LORD’S DAY column in the Sunday Tribune and TREASURES column in New Telegraph newspaper every Wednesday. He is also a public affairs analyst on radio and television.
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