By Deborah Musa
Following the recommendation of Justice Kudirat Kekere-Ekun as the next Chief Justice of Nigeria by the National Judicial Council, DEBORAH MUSA takes a look at her rise in the judicial firmament and the legacy of the outgoing CJN, Justice Kayode Ariwoola, who will bow out on August 22, after presiding over the affairs of Nigeria’s Supreme Court for two years
On Thursday, the National Judicial Council, in its 106th meeting presided over by the Chief Justice of Nigeria, Justice Olukayode Ariwoola, recommended Justice Kudirat Kekere-Ekun to President Bola Tinubu for appointment as the next CJN.
Upon the President’s approval, Justice Kekere-Ekun will become the second female CJN, the first being Justice Mariam Mukhtar, who held the position from July 2012 to November 2014.
Before her official recommendation, many already tipped Kekere-Ekun as the country’s next CJN, not only because she would become the most senior on the bench following Justice Ariwoola’s exit, but as the tradition is for the second most senior on the bench to succeed the outgoing CJN, but because she has what it takes to become the next CJN.
The 66-year-old jurist, who obtained her LL.B from the University of Lagos in 1980, was born in London on May 7, 1958. She was called to the Nigerian Bar on July 10, 1981, having attended and graduated from the Nigerian Law School. Afterwards, she went to the London School of Economics and Political Science, where she bagged her LL.M. in November 1983.
Justice Kekere-Ekun, a life bencher, was in private practice from 1985 to 1989 and was later appointed a Senior Magistrate Grade II, Lagos State Judiciary in December 1989. She was appointed a judge of the High Court of Lagos State on July 19, 1996, and served as Chairman of the Robbery and Firearms Tribunal, Zone II, Ikeja, Lagos, from November 1996 to May 1999.
She was elevated to the Court of Appeal on September 22, 2004, where she served in various court divisions and presiding justice of two divisions (Makurdi & Aku) in 2021 and 2022, respectively.
When Ariwoola was mentioned as a potential successor to Justice Tanko Muhammad as CJN, before his official appointment in an acting capacity on June 27, 2022, many Nigerians, particularly those disillusioned with the judiciary, did not view it as a significant development.
To them, Justice Ariwoola would not be different; neither would his tenure be immune from some unsavoury issues that laced the administrations of the two immediate past Chief Justices of Nigeria. And given the geopolitical zone he hails from, some others, especially political actors with allegiance to opposition political parties, openly expressed fears that he would be impartial in his judgment on political issues since the All Progressives Congress presidential candidate featured its presidential candidate from his zone.
Within his two-year tenure as the nation’s CJN, Ariwoola, like his two immediate predecessors, faced controversies. A group of lawyers and civil society organisations had prevailed on him to relinquish his position over the alleged appointment of his relatives to the bench and National Judicial Council.
Unlike Justices Walter Onnoghen and Tanko Mohammed, who resigned in controversial circumstances without much honour accorded them as had expected, Ariwoola manoeuvred through the judiciary terrain, culminating in his expected eventual retirement on August 22, 2024. This is coming after his 13 years of being on the bench of the apex court in Nigeria.
To prove that he had no personal stake in the nation’s political affairs, the CJN recused himself and allowed other judicial officers to hear and determine the appeal against the judgment of the Presidential Election Petition Tribunal when the matter got to the Supreme Court. This was even though he is the most senior justice with years of experience on electoral issues.
Some notable judgments determined by the Supreme Court during Ariwoola’s tenure included the cash scarcity case and the famous local government autonomy case. There were, however, conflicting court orders, especially from courts of coordinate jurisdiction and perceived indiscipline on the bench during his tenure.
Looking at his two-year leadership at the nation’s apex court, as he bows out, having attained the mandatory 70-year benchmark for a judicial officer to retire, it is not in doubt that Ariwoola, an Iseyin, Oyo State-born jurist, has etched his name in the sands of time. This was in line with the promise he made when he assumed office as the number one judicial officer.
Speaking during the special court session to mark the Supreme Court’s 2023/2024 legal year on November 27, 2023, Justice Ariwoola regretted that the number of justices in the nation’s Supreme Court was grossly inadequate and vowed to push for its completion.
“As soon as I assumed office on the 27th day of June 2022, I immediately got down to work on this urgent and immediate need in particular. Though we have not gotten them on board yet, I can convincingly assure the litigant public that within a very short while, the Supreme Court of Nigeria will, for the very first time in its history, get the constitutionally prescribed full complement of 21 Justices.
“That is one of the legacies I have been working assiduously to leave behind, as it now seems that the court has been somewhat ‘jinxed’ from meeting its constitutional requirement since that piece of legislation was enacted several years ago,” he had said.
He saw this through when, on February 26, the apex court got 11 new judges to make the full complement of the Supreme Court.
Some senior lawyers rate the outgoing CJN and his tenure:
Mike Ozekhome (SAN) described Ariwoola’s tenure as “a mixture of the good, the bad and the ugly.” The legal luminary said: “The Honourable Justice Olukayode Ariwoola’s tenure can be said to be a mixture of the good, the bad and the ugly – some achievements and some minuses, there is no question about that.
“He was my classmate at the University of Ife, the Nigerian Law School (1981 Law School Set). The last CJN, Tanko Mohammad, was also our classmate and, by the grace of God, the incoming CJN, Justice Kudirat Kekere-Ekun, is also our classmate. So the 1981 Law School set still has about five justices at the Supreme Court right now, with three justices back to back produced by the class. The 1981 Set has certainly done well for Nigeria.
“I want to say that the full complement of the Supreme Court with the entire 21 justices has been achieved by Justice Ariwoola. For decades, we have not had the time where we had the full Supreme Court complement for a long time, but he was able to pull that through, there is no question about that. That is a big achievement that is now reducing the over bloated docket of the Supreme Court which had been over-tasked and over-worked.
“Because of the previous development, justices were no longer patient enough to do rigorous over-analysis of the cases before them, rigorous research or apply rigorous thinking and philosophy, being a final court and also a policy court. We saw many decisions coming from the Supreme Court that cannot stand the test of time or even stand earlier cases before them. For example, the case of Yobe between Honourable Bashir Machina and the former Senate President, Ahmad Lawan, is a case in point where the Supreme Court relied on technicalities to deny a person who should have been at the Senate today (Machina) because Lawan did double registration, both as a presidential aspirant simultaneously as a senatorial aspirant.
“The facts were there. If they had done a more calm, more rigorous interrogation, all the facts were there and the Supreme Court would have seen that there was no way Ahmad Lawan would have won to be at the Senate today. It would have been Machina. That’s one case.
“The case of Hope Uzodinma and Emeka Ihedioha is another case which was decided by the Supreme Court and I went there to tell the Supreme Court to review itself, to review the judgment because the Supreme Court itself had said this can be done in a case of Adegoke Motors Limited versus Adesanya in a wonderful judgment delivered by late Justice Chukwudifu Oputa. He had said that the Supreme Court is final not because it is infallible, it is infallible because it is final. Then he added that they are mortals and as such they can make mistakes, they can err, therefore when there is an error, a bold, courageous lawyer should be able to approach the Supreme Court to tell it to correct this error because they are mortals, they are not God.
“Following that decision, I approached the Supreme Court last year in the case of Emeka Ihedioha versus Hope Uzodinma, not even to review its earlier judgment but actually to affirm an earlier judgment based on the facts presented but the Supreme Court was impatient with me. I wouldn’t know if it was because of the crowded docket, asking that it would prefer me to withdraw the application that they cannot be taking such a matter when there are more important matters, time-bound, timeline electoral matters that have crowded the court. I told the Supreme Court that based on my humble deep research, not just as a practising advocate but also as a professor of law, this was a case I believed they should have a second look at so that when I die, I will be able to tell my God that I discharged my duty to the best of my ability, but they insisted that I should withdraw the matter. I insisted that I was not going to withdraw it because of the preliminary points, even before I argued the main matter; they took a decision and gave a bench ruling dismissing the matter and imposing N40m cost against me, N10m in favour of each of the respondents. That should not be the case from the highest court in the land.
“This happened under the nose of Justice Ariwoola. The same Supreme Court had done it against Wole Olanikpekun (SAN) and Chief Afe Babalola (SAN), two legal titans so when you frighten lawyers of the citadel of justice from presenting a client’s case then, I think there’s the need for the Supreme Court to rethink this very seriously and I use this opportunity to call on the Supreme Court to allow a review of an earlier judgment like it has done in three or four other cases when the occasion rightly calls for it because their judgment should not be carved in the panoramic tablet. That was one big minus under Justice Olukayode Ariwoola.
“A second big plus is that going by my argument in the last four years, this year alone, the CJN was able to bring about 87 senior advocates. Last year, it was 58. My argument has always been that contrary to the fears of many lawyers, it is not a bastardisation or watery down of the quality of the rank of the silk, the rank of senior advocate, just because many people have been given it. I gave the example of the UK, England and Wales, small countries where, at times, they give out 155 silks to those who are qualified.
“My argument was and is still that if you have interviewed these aspirants for the silk and you have done your first filtration, you have done your second filtration and you have seen that they are qualified and you have called for public opinion on them and the public has reacted by writing on them and, at the end of the day, the Legal Practitioners Privileges Committee finally meets to asses these applicants and they found that these numbers have qualified, then give it to that number. There is no need to further prune it down because in doing that, you are discriminating against some of those who you have already found qualified by picking out some of them and leaving out others. That is when bad factors rear their head.
“Factors like ‘Are you a woman or a man? Are you from the North or the South? Are you the son or daughter of a past CJN, past minister, past governor or president? Are you the son of a poor peasant farmer from the village? Are you Yoruba, Hausa, Fulani or Igbo? Are you Edo, do you practice in Lagos or Benin or Abuja?’ are mundane and have nothing to do with the exceptional ability of these interviewees who are qualified and who have been found strong and in learning. It will now amount to discrimination against them to pull them out.
“Like this year’s list, 98 were listed and about 11 were rejected. We will not know why the LPPC said these people were not qualified. What is the yardstick used in not giving it to them? My argument remains that the 87 advocates given the ranks this year will no longer apply next year because they have been given. Only the few ones that did not get it this year will now apply, plus many others. I argue that a time will come when there will be no applicants because everybody qualified to apply has applied and has gotten it. I use my case as an example. I applied for the Senior Advocate rank eight good times before I was given. Of those eight years, I was qualified for at least six years, but different factors unrelated to my mental or intellectual capacity or unrelated to my moral upbringing or unrelated to how I have helped to develop the law contributing to its body, but other characters were being used against me until the time of Justice Kastina Alu who said “give it to this young man.” That was how I got my rank after eight applications.
“I don’t want any Nigerian lawyer to go through that horrific, horrendous experience. To me, I say give it to those who are qualified. We are over 200,000 lawyers in Nigeria, even with these 87 senior advocates, we are still less than 500 senior advocates in Nigeria. There are still some states that don’t have a Senior Advocate of Nigeria resident in the state. The greatest concentration of these Senior Advocates is in Lagos, Abuja, Port Harcourt, and some in Enugu, Onitsha, Owerri and Ibadan. How many are in Benin, Asaba, Jos, Makurdi, Sokoto, Gusau, and Nasarawa, which is near Abuja here? To me, that is a big plus to his administration, contrary to the views of some people that he has watered down the rank of senior advocates.
“The sky is large enough for all the birds to fly and I do not believe that a brief that God has destined for Mike Ozekhome will be taken away from him because 87 Senior Advocates of Nigeria had been made this year nor do I believe that any of those young Senior Advocates who have just been given the rank will have his case destined for him by God given to Mike Ozekhome because I’m older and more experienced. Everybody will have his chance in the market. That remains my view.
“I, therefore, think that Justice Ariwoola has done well in that regard by adopting a liberal policy by saying all those who are qualified and who have been deemed by the Legal Practitioners Privileges Committee ought to be given this rank and not denied for reasons that cannot be explained.
“In all, we saw a Supreme Court that delivered some very courageous judgments like the currency case that allows Nigerians to have two swaps of currency, the old and the new, side by side. If the Supreme Court did not intervene, what the Central Bank would have done was cripple the entire country and bring it to its knees also as the local government judgment, a lot of people have criticised the judgment just as many people including me have eulogised the Supreme Court for the judgment of the local government autonomy.
“The two key points are that local governments should not be funded if they are caretaker because Section 7 of the Constitution makes it clear that it is only a system of democratically elected government that has the structure and composition and accounting officers secured under Section 7 that are allowed. Therefore caretaker committees as many governors have in Nigeria are an aberration. The Supreme Court said that in section 162, subsection (3) (4) (5) and (6), money from the federation account meant for the 774 local government councils was to be paid into a joint state, local government account but, over the years, since 1999, what has been happening is that the governors waylay the fund at source, which are meant for the local government and give peanuts. It is the people at the grassroots that suffer. Ordinary culverts, gutters, streetlights in a community, erosion control, maternity homes, cottage hospitals, they could not do things like that all because the money and power were concentrated in the state governors and at the federal government level.
“Under section 162, the local government is a third tier of government and you cannot ignore them by sharing the money meant for them. I, therefore, believe that the Supreme Court was smart enough in looking at Section 162 to say we have to creatively use the judiciary to chair activism to get the funds meant for the local government to be paid to them. Other people say the judgment was wrong because the constitution did not say that, I say well, the Supreme Court may have erred but it was trying to remove a mischief to attack a problem that has been there for years.
“Going by Justice Wendell Oliver Holmes Jr., who once said the processes of what the courts will do are nothing more pretentious, the Supreme Court judgment is what the federal government, state governments and local governments should follow. That is my take on it and it happened under Justice Ariwoola within a short space of two years.
“He has done great things in the judiciary, whether positively or negatively but more positively that have impacted the judicial sphere of Nigeria, including its jurisprudence and legal space. I commend the CJN as he retires into a world of rest from his services to Nigeria, from the time he was a prosecutor to the time he was a high court judge to the time he was at the Court of Appeal to the over 10 years he has been at the apex court of the land.”
Lekan Ojo (SAN):
“If you look at it on the whole, he had the most eventful tenure as CJN. I stand to be corrected, during his tenure as CJN, there was no prima facie case of corruption in the Supreme Court. My Lord the CJN promoted a collegiate culture in the Supreme Court. We never had a situation where some honourable justices of the Supreme Court were dissatisfied with the way and manner the CJN ran the affairs of the apex court. There might be some issues like maybe the appointment of judges. You see, nobody has ever come out to say that the in-law was not qualified or did not satisfy the guidelines laid down for the appointment of judges to the high court. Why must the daughter-in-law of the CJN be dropped just because she is the daughter in-law, even though she was qualified, having regard to the guidelines for the appointment of judges? Don’t you think it would have amounted to serious unfairness against that applicant?
“So, assuming the CJN still had up to four years, you are saying that she should never be appointed as a judge as long as her father-in-law remains the CJN? Will that be fair? That will not be fair. If his daughter-in-law was not qualified, it would have been a different thing, but nobody has said this. If they argue that there are senior people, that does not matter, appointment is not a promotional thing. Look at those elevated to the Supreme Court now, they are not the most senior, even there was this policy that stopped elevating to the Supreme Court, justices who have less than two years to spend.
“There can never be a perfect thing in life. Look at the appointment of senior advocates, you may have your juniors who get appointed as senior advocates before you, maybe because they are from a particular geographical zone or for any other reason. So you cannot criticise my Lord the CJN on that ground. That criticism is misdirected as long as those who were appointed are qualified and they are qualified. So On the whole, I certify and can conveniently say his tenure was most eventful.
“Honorable Justice Dattijo Mohammed, in his valedictory speech, had said the CJN is too powerful. He is too powerful because the laws made him too powerful. Is that his fault? The only thing is if you want to reduce the enormous powers of the CJN, you amend the law to reduce the powers of the CJN. So what wrong did my Lord the CJN commit by exercising the powers vested in him by relevant laws and regulations? So what you should do is criticise the system that has made laws getting enormous powers in the CJN. Honestly speaking, we have never had a perfect person and we will never have a perfect person.
“The Honourable outgoing CJN is a human being, perfection is not the hallmark of any human being. My Lord the CJN may have his shortcomings but it is the aggregate, if you take a holistic view of his tenure, you cannot but give the CJN a very good mark. He had a name, result-oriented, purpose-driven CJN. My Lord the CJN was an achiever and I am sure the incoming CJN will improve considerably on the achievements of the outgoing CJN.
Augustine Alegeh (SAN):
The CJN has put on a good shift, he has done his best, and he has done his fair bit of contribution to the judiciary and national development. I believe he has had a fair tenure, he’s been good. The judiciary has its challenges but there’s nothing new anybody can say about them. For the welfare of judges, the work environment, and for those who interact with the judiciary, the most challenging part is the delay in the determination of cases. Every CJN has always tried to find a way to work to see that cases are determined within the shortest possible time, but we still have a long backlog of cases. So we all need to keep looking for measures, ways and means that we can put in place to ensure the speedy determination of justice, because as the saying goes justice delayed is justice denied. That is a problem that we all face.
Mohammed Ndarani Mohammed, (SAN):
“It is not news that the Chief Justice of Nigeria, My Lord, the Honourable Justice Olukayode Ariwoola would, on the 22nd day of August 2024, take a bow as Nigeria’s lead jurist. I must say his stay has been an eventful one, given the expeditious determination of court cases at the apex court under his watch. There has been a commendable renovation of the entire Supreme Court Complex, giving it a facelift and ensuring a smooth administration of justice in the country.
“My Lord, Justice Ariwoola, has, with diligent enthusiasm, championed the cause of a workable judiciary through staff welfare and proper consideration for the welfare of judicial officers. It is on record that, under his watch, President Bola Tinubu graciously approved and has implemented the recommendation for the substantial increment in the earnings of judicial officers.
“One of the monumental achievements under the leadership of my Lord Justice Ariwoola as Chief Justice of Nigeria is the fact that he ensured that the Supreme Court bench was fully constituted with 21 justices, as prescribed by the Constitution of the Federal Republic of Nigeria, through the elevation of Justices to the Supreme Court. This is an uncommon feat and deserves our collective applause. It is a remarkable achievement.
“It cannot be forgotten in a hurry that, under his distinguished leadership, landmark judgments were delivered by the Supreme Court, which no doubt will add substantially to the development of jurisprudence in Nigeria. Just very recently, the judgment on the autonomy of local governments was delivered.
“The substantial increment in the salaries of judicial officers during the tenure of the outgoing Chief Justice will remain a scratch on the conscience of the Nigerian judiciary for a long time. It is a big achievement for which he should take credit. His efforts as a father are recognised and he will be greatly missed. I wish him a long life and God’s grace beyond the bench.”
Source: Punch
